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THIRD
SECTION
CASE OF POGHOSYAN AND BAGHDASARYAN v. ARMENIA
(Application
no. 22999/06)
JUDGMENT
STRASBOURG
12
June 2012
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 Poghosyan and
Baghdasaryan v. Armenia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Alvina Gyulumyan,
Egbert Myjer,
Ján
Šikuta,
Ineta Ziemele,
Luis López
Guerra,
Kristina Pardalos, judges,
and Santiago
Quesada, Section
Registrar,
Having
deliberated in private on 22 May 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 22999/06) 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 two Armenian nationals, Mr Armen Poghosyan and
Mrs Anahit Baghdasaryan (“the applicants”), on 16 May
2006.
- The applicants were represented by Ms S. Safaryan, 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.
- The
applicant Poghosyan (“the first applicant”) alleged, in
particular, that no compensation for non-pecuniary damage was awarded
to him in respect of his ill-treatment, unlawful arrest and
detention, and unfair conviction.
- On
20 November 2008 the application was communicated to the Government.
It was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1976 and 1932 respectively and live in
Saratovka, Armenia.
- The
applicants are son and mother.
- On
8 October 1998 the first applicant was taken to a police station on
suspicion of having committed rape and murder. A record of the
applicant’s arrest was drawn up, in which murder was indicated
as the reason for his arrest and was signed by him. At the police
station the first applicant was subjected to ill-treatment by a
number of police officers and later, when questioned by the
investigator, confessed to the crime.
- On
11 October 1998 the first applicant was placed in pre-trial detention
and on 21 October 1998 he was formally accused of rape and murder.
- On
29 March 1999 the Lori Regional Court found the first applicant
guilty as charged and sentenced him to fifteen years’
imprisonment, basing the conviction on, inter alia, his
confession. This judgment was upheld by the Criminal and Military
Court of Appeal and the Court of Cassation on 20 May and 16 June
1999 respectively. It appears that throughout the proceedings the
first applicant claimed unsuccessfully that his confession had been
obtained under ill-treatment.
- On
26 April and 1 July 2002 the Convention and its Protocol No. 7
respectively entered into force in respect of Armenia.
- On
24 November 2003 the General Prosecutor’s Office filed an
application seeking to reopen the first applicant’s case on the
ground of newly discovered circumstances substantiating his
innocence. In particular, the real perpetrator of the offences
imputed to the first applicant had been found following the
commission of a similar offence. Furthermore, the first applicant’s
conviction had been based on obviously false evidence which had been
obtained in violation of the law.
- On
2 April 2004 the Court of Cassation decided to grant the application
and to quash the first applicant’s conviction, remitting the
criminal case for a fresh investigation. In doing so, the Court of
Cassation found it to be substantiated that new circumstances had
been discovered following the first applicant’s conviction
which had been unknown to the courts at the material time. These
circumstances provided grounds to believe that violations of criminal
procedure law had taken place during the examination of the first
applicant’s criminal case, which might have had an impact on
the objective, thorough and full examination of the case.
- On
17 April 2004 criminal proceedings were instituted against the
investigator and a number of police officers who had dealt with the
initial investigation. They were accused of exceeding their powers,
namely by forcing the first applicant to testify.
- On
the same date the first applicant was released from prison upon a
written undertaking not to leave his place of residence, after having
served about five years and six months of his sentence.
- On
29 April 2004 the criminal proceedings against the first applicant
were terminated under Article 35 § 1(2) of the Code of Criminal
Procedure (CCP) for lack of corpus delicti.
- On
the same date the General Prosecutor’s Office addressed a
letter to the first applicant, informing him of this decision and of
the fact that he was hence considered an acquitted person and had the
right to claim compensation under civil law. The letter further added
that the General Prosecutor’s Office asked for his forgiveness
for the miscarriage of justice.
- On
6 May 2004 the first applicant was recognised as a victim. The
relevant decision stated that he had suffered moral, physical and
material damage as a result of the unlawful actions of the body of
inquiry and the investigating authority.
- On
15 June 2005 the Lori Regional Court found two police officers guilty
as charged, sentencing them to three years’ imprisonment and
prohibiting them from holding certain posts for a period of two
years, but absolving them from serving their prison sentences by
applying an amnesty. In doing so, the Regional Court found, inter
alia, that on 8 October 1998 the first applicant and his brother
had been taken to a police station where the police officers had
ill-treated the first applicant in order to coerce a confession. When
the first applicant had refused to confess, one of the police
officers had kicked and punched him, and then kept him at the police
station unlawfully. Later that day two of the police officers had
continued beating the first applicant. One of them slapped the first
applicant’s ears with both hands, as a result of which his left
eardrum exploded. Then they had brought a bottle and tried to sit the
first applicant on it. Simultaneously, another police officer had
been beating the first applicant’s brother in a nearby office
and the first applicant had heard his brother’s cries.
Realising that he had no other way to avoid the ill-treatment, the
first applicant had confessed to the murder. On the next day, before
taking the first applicant to the crime scene for an inspection, one
of the police officers had punched him several times as a warning.
Thereafter, on 14, 16 and 19 October 1998 the first applicant was
taken from his detention cell to the police station, where the police
officers continued ill-treating him, to make him admit that he had
raped the victim before murdering her, which the first applicant was
forced to do, not being able to tolerate the ill-treatment.
- No
appeal was lodged against this judgment.
- On
17 September 2004 the first applicant filed a civil claim with the
courts, seeking compensation for pecuniary damage in the amount of
34,050,000 Armenian drams (AMD) for the ill-treatment, unlawful
detention and unfair conviction suffered by him, invoking Articles 3,
5 and 6 of the Convention.
- On
an unspecified date the applicant Baghdasaryan (“the second
applicant”) also joined as a co-plaintiff, seeking roughly half
of the pecuniary damages claimed by the first applicant.
- On
an unspecified date the first applicant filed an additional claim,
seeking non-pecuniary damages in the amount of AMD 60,000,000. He
submitted, inter alia, that, even if he had so far claimed
only pecuniary damage, he had in fact suffered greater non-pecuniary
damage. The Convention case-law required that non-pecuniary damages
be awarded in such cases.
- On
28 April 2005 the Kentron and Nork-Marash District Court of Yerevan
dismissed the claim for non-pecuniary damage on the ground that this
type of damage was not envisaged by the Civil Code, namely its
Article 17. As to the claim for pecuniary damage, the District
Court decided to grant it partially finding, inter alia, that,
pursuant to Article 66 of the CCP, the first applicant – as an
acquitted person – was entitled to claim pecuniary compensation
for unlawful arrest, detention, indictment and conviction, and
awarding him AMD 6,250,000 for lost income for the period between 11
October 1998 and 17 April 2004. The second applicant was awarded AMD
1,500,000 for travel expenses, expenses related to parcels and legal
costs.
- On
12 May 2005 the first applicant lodged an appeal.
- On
31 August 2005 the Civil Court of Appeal decided to dismiss the first
applicant’s appeal and to uphold the judgment of the District
Court.
- On
16 September 2005 the applicants lodged an appeal on points of law.
- On
18 November 2005 the Court of Cassation dismissed the applicants’
appeal.
II. RELEVANT DOMESTIC LAW
A. The Civil Code (in force from 1 January 1999)
- The
relevant provisions of the Civil Code provide:
Article 17: Compensation of damage
“1. The person whose rights have been
violated may claim full compensation for the damage suffered, unless
the law or a contract envisages a lower amount of compensation.
2. Damages are the expenses borne or to be
borne by the person, whose rights have been violated, in connection
with restoring the violated rights, loss of his property or damage to
it (material damage), including lost earnings which the person would
have gained in normal conditions of civil circulation, had his rights
not been violated (lost income). ...”
Article 1064: Liability for damage caused by unlawful
actions of the body of inquiry, the investigating authority, the
prosecutor’s office or the courts
“1. Damage caused as a result of
unlawful conviction, [unlawful] criminal prosecution, [unlawful]
imposition of a preventive measure in the form of detention or a
written undertaking not to leave, and [unlawful] imposition of an
administrative penalty shall be compensated in full, in a procedure
prescribed by law, by the Republic of Armenia, regardless of the
fault of the officials of the body of inquiry, the investigating
authority, the prosecutor’s office or the courts. ...”
B. The Code of Criminal Procedure (in force from 12
January 1999)
- The
relevant provisions of the Code of Criminal Procedure provide:
Article 35: Circumstances not allowing criminal
proceedings or criminal prosecution
“1. Criminal proceedings may not be
instituted and criminal prosecution may not be carried out, while
instituted criminal proceedings must be terminated, if: ... (2) the
act lacks corpus delicti; ...”
Article 66: An acquitted person
“1. A person shall be considered to be
acquitted if criminal prosecution or criminal proceedings against him
were terminated on ... the grounds envisaged by[, inter alia,
Article 35 § 1(2)] of this Code or if he was acquitted by a
court judgment.
...
3. An acquitted person shall be ... entitled
to claim full compensation of pecuniary damage caused as a result of
his unlawful arrest, detention, indictment and conviction, taking
into account the possible lost profits. ...”
III. RELEVANT COUNCIL OF EUROPE DOCUMENTS
Explanatory Report to Protocol No. 7 to the Convention for the
Protection of Human Rights and Fundamental Freedoms (ETS No. 117)
- The
relevant sections of the Explanatory Report read as follows:
Article 3
“22. This article provides that
compensation shall be paid to a victim of a miscarriage of justice,
on certain conditions.
First, the person concerned has to have been convicted
of a criminal offence by a final decision and to have suffered
punishment as a result of such conviction. According to the
definition contained in the explanatory report of the European
Convention on the International Validity of Criminal Judgments, a
decision is final “if, according to the traditional expression,
it has acquired the force of res judicata. This is the case
when it is irrevocable, that is to say when no further ordinary
remedies are available or when the parties have exhausted such
remedies or have permitted the time-limit to expire without availing
themselves of them”. It follows therefore that a judgment by
default is not considered as final as long as the domestic law allows
the proceedings to be taken up again. Likewise, this article does not
apply in cases where the charge is dismissed or the accused person is
acquitted either by the court of first instance or, on appeal, by a
higher tribunal. If, however, in one of the States in which such a
possibility is provided for, the person has been granted leave to
appeal after the normal time of appealing has expired, and his
conviction is then reversed on appeal, then subject to the other
conditions of the article, in particular the conditions described in
paragraph 24 below, the article may apply.
23. Secondly, the article applies only where
the person’s conviction has been reversed or he has been
pardoned, in either case on the ground that a new or newly discovered
fact shows conclusively that there has been a miscarriage of justice
- that is, some serious failure in the judicial process involving
grave prejudice to the convicted person. Therefore, there is no
requirement under the article to pay compensation if the conviction
has been reversed or a pardon has been granted on some other ground.
Nor does the article seek to lay down any rules as to the nature of
the procedure to be applied to establish a miscarriage of justice.
This is a matter for the domestic law or practice of the State
concerned. The words “or he has been pardoned” have been
included because under some systems of law pardon, rather than legal
proceedings leading to the reversal of a conviction, may in certain
cases be the appropriate remedy after there has been a final
decision.
24. Finally, there is no right to
compensation under this provision if it can be shown that the
non-disclosure of the unknown fact in time was wholly or partly
attributable to the person convicted.
25. In all cases in which these preconditions
are satisfied, compensation is payable “according to the law or
the practice of the State concerned”. This does not mean that
no compensation is payable if the law or practice makes no provision
for such compensation. It means that the law or practice of the State
should provide for the payment of compensation in all cases to which
the article applies. The intention is that States would be obliged to
compensate persons only in clear cases of miscarriage of justice, in
the sense that there would be acknowledgement that the person
concerned was clearly innocent. The article is not intended to give a
right of compensation where all the preconditions are not satisfied,
for example, where an appellate court had quashed a conviction
because it had discovered some fact which introduced a reasonable
doubt as to the guilt of the accused and which had been overlooked by
the trial judge.”
THE LAW
I. THE SECOND APPLICANT’S VICTIM STATUS
- The
Court first considers it necessary to decide on the victim status of
the second applicant. It reiterates that the term “victim”
used in Article 34 of the Convention denotes the person directly
affected by the act or omission which is at issue (see, among other
authorities, Vatan v. Russia, no. 47978/99, § 48,
7 October 2004).
- In
the present case, it was only the first applicant who was subjected
to ill-treatment, detention and conviction, which was later
overturned. The Court therefore considers that the application, in so
far as it concerns the second applicant, is incompatible ratione
personae with the provisions of the Convention within the meaning
of Article 35 § 3, and must be rejected in
accordance with Article 35 § 4 of the Convention.
- The
Court will therefore limit its examination of the complaints raised
in the application to those which concern the first applicant, to
whom for the sake of simplicity it will henceforth refer as “the
applicant”.
II. ALLEGED VIOLATION OF ARTICLES 5 § 5 AND 13 OF THE
CONVENTION AND ARTICLE 3 OF PROTOCOL No. 7 TO THE CONVENTION
- The
applicant complained about the dismissal of his claim for
non-pecuniary damage in respect of his ill-treatment, unlawful arrest
and detention, and unfair conviction. He invoked Articles 3, 5 and 6
of the Convention. The Court considers that this complaint falls to
be examined under Articles 5 § 5 and 13 of the Convention and
Article 3 of Protocol No. 7 to the Convention, which read as
follows:
Article 5 § 5 of the Convention
“Everyone who has been the victim of arrest or
detention in contravention of the provisions of this Article shall
have an enforceable right to compensation.”
Article 13 of the Convention
“Everyone whose rights and freedoms as set forth
in this Convention are violated shall have an effective remedy before
a national authority notwithstanding that the violation has been
committed by persons acting in an official capacity.”
Article 3 of Protocol No. 7 to the Convention
“When a person has by a final decision been
convicted of a criminal offence and when subsequently his conviction
has been reversed, or he has been pardoned, on the ground that a new
or newly discovered fact shows conclusively that there has been a
miscarriage of justice, the person who has suffered punishment as a
result of such conviction shall be compensated according to the law
or the practice of the State concerned, unless it is proved that the
non-disclosure of the unknown fact in time is wholly or partly
attributable to him.”
A. Admissibility
- The
Court notes that an issue may arise as to whether it has temporal
jurisdiction to examine the circumstances of the applicant’s
complaint, taking into account that his complaints under Article 3, 5
and 6 of the Convention concerning his ill-treatment, unlawful arrest
and detention, and his unfair conviction fall beyond the Court’s
competence ratione temporis (see paragraphs 55-57 below). The
Court notes, however, that the investigation into the applicant’s
ill-treatment, the conviction of the police officers and the ensuing
compensation proceedings took place after the date of the
Convention’s entry into force in respect of Armenia. The Court
therefore considers that the applicant’s complaints under
Articles 5 § 5 and 13 of the Convention and Article 3 of
Protocol No. 7 to the Convention fall within its competence ratione
temporis.
- The
Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The Government
- The
Government argued, in respect of Article 5 § 5, that that
Article presupposed a violation of any of the other provisions of
Article 5, which was absent in this case. The applicant’s
arrest and detention at the material time were not in violation of
Article 5, since the domestic courts had acted in accordance with the
law. There was no violation of Article 5 § 1 (a) since the
applicant had been convicted by a competent court and there was no
violation of Article 5 § 1 (c) since the aim of putting the
applicant under arrest was to bring him before a competent authority
on a suspicion that he had committed rape and murder. At the material
time the domestic court did not have at its disposal any evidence
that would justify adopting a different decision. There was no
violation of Article 5 § 2 because the applicant had signed the
record of his arrest on the day he was taken to the police station,
from which it is obvious that he was aware of the reason for his
arrest. Accordingly, there were no violations of Article 5 §§
3 and 4 either.
- The
Government further argued that the subsequent quashing of the
applicant’s conviction and the termination of the criminal
proceedings against him did not render his arrest and detention
incompatible with Article 5, since they had been carried out in
compliance with the requirements of that Article and were based on a
reasonable suspicion.
- The
Government also claimed, in respect of Article 13, that proper
redress was available to the applicant. In particular, once the new
facts were discovered, criminal proceedings were immediately
instituted against the police officers, the applicant was granted
victim status, the officers were convicted, the criminal proceedings
against the applicant were terminated and his claim for pecuniary
damage was granted. Furthermore, the General Prosecutor had addressed
an official apology to the applicant for miscarriage of justice. All
this should be considered as sufficient compensation for any
non-pecuniary damage suffered. Moreover, the facts of the present
case were different from those in Keenan v. the United Kingdom
(no. 27229/95, § 130, ECHR 2001 III) and Kontrová
v. Slovakia (no. 7510/04, § 64, 31 May 2007) because this
case did not raise an issue under Article 3.
- The
Government lastly claimed, in respect of Article 3 of Protocol No. 7,
that adequate compensation had been awarded to the applicant. In
particular, he had been granted pecuniary damages and had received an
official apology from the Prosecutor’s Office, which should be
considered as sufficient compensation for non-pecuniary damage.
Furthermore, Article 3 of Protocol No. 7 required payment of
compensation according to law or practice of the state concerned.
Thus, the compensation which he received for non-pecuniary damage in
the form of an apology was not arbitrary since such practice was
common in similar situations.
(b) The applicant
- The
applicant argued that Articles 3, 5 and 6 were applicable to his case
and an award of just compensation was therefore of paramount
importance. The apology which he had received could not be taken
seriously because in addition to the official letter the General
Prosecutor presented him with a copy of Alexandre Dumas’s
“Count of Monte-Cristo”. In any case, the hardship,
mental anguish and acute physical pain suffered by him for five and a
half years deserved to be compensated in a more reasonable manner
than just an apology. Furthermore, on 1 September during all those
years Armenian public television had broadcast a programme prepared
by the Armenian police in which it was shown that he had admitted his
guilt. Thus, he was consistently degraded in the eyes of the public
and nothing was done by the authorities after his acquittal to
restore his reputation. In 2007 he married but was still unable to
have a child: the doctors linked this with the circumstances of his
conviction. He also suffered from left-side adhesive otitis media and
bilateral perceptive deafness of first to second degree because of
the blows to his ears. He was still using painkillers and his
deafness was irreversible. No compensation for this was provided by
the domestic courts, despite the fact that it had been established
that he had suffered ill-treatment. Lastly the Government’s
argument that his arrest had been effected in accordance with Article
5 and had been based on a reasonable suspicion was unacceptable,
since the signs of his ill-treatment were clearly visible on him.
Furthermore, he persistently refused to admit the charges against him
before the courts and appealed against his conviction to higher
instances.
2. The Court’s assessment
- The
Court considers it necessary to address first the complaints under
Article 13 of the Convention and Article 3 of Protocol No. 7 and then
the complaint under Article 5 § 5 of the Convention.
(a) Article 13 of the Convention
- The
Court notes once again that it is precluded – for lack of
competence – from examining the circumstances of the
applicant’s treatment at the police station to determine
whether it fell short of the requirements of Article 3 of the
Convention (see paragraphs 55-57 below). However, it reiterates that
the existence of an actual breach of another provision of the
Convention is not a prerequisite for the application of Article 13.
Article 13 guarantees the availability of a remedy at national level
to enforce – and hence to allege non-compliance with –
the substance of the Convention rights and freedoms in whatever form
they may happen to be secured in the domestic legal order. Thus, for
Article 13 to apply it is sufficient for an individual to have an
arguable claim in terms of the Convention (see Boyle and Rice v.
the United Kingdom, 27 April 1988, § 52, Series A no.
131).
- The
Court observes that the fact of the applicant’s ill-treatment
by police officers was unequivocally established by the domestic
courts, namely the judgment of the Lori Regional Court of 15 June
2005 convicting two of the implicated police officers (see paragraph
18 above). The Court therefore considers that the applicant
undoubtedly had an arguable claim before the domestic courts under
Article 13 of having been subjected to treatment prohibited by
Article 3 of the Convention.
- The
applicant filed his civil claim for compensation, including for the
ill-treatment suffered, by instituting a separate set of proceedings
following the police officers’ conviction, seeking, inter
alia, non-pecuniary damages (see paragraph 22 above). However, no
compensation for non-pecuniary damage was awarded to the applicant,
since such type of compensation was not envisaged by the domestic
law.
- The
question therefore arises whether Article 13 in this context requires
that such compensation be made available. The Court itself will in
appropriate cases award just satisfaction, recognising pain, stress,
anxiety and frustration as rendering appropriate compensation for
non-pecuniary damage. It has previously found that, in the event of a
breach of Articles 2 and 3 of the Convention, which rank as the
most fundamental provisions of the Convention, compensation for the
non-pecuniary damage flowing from the breach should in principle be
available as part of the range of possible remedies (see Keenan,
cited above, § 130, and Kontrová, cited above, §
64).
- In
this case, the Court concludes that the applicant should have been
able to apply for compensation for the non-pecuniary damage suffered
by him in connection with his ill-treatment. No such compensation
being available to him under the Armenian law, the applicant was
deprived of an effective remedy.
- There
has accordingly been a violation of Article 13 of the Convention.
(b) Article 3 of Protocol No. 7 to the
Convention
- The
Court reiterates that the aim of Article 3 of Protocol No. 7 is to
confer the right to compensation on persons convicted as a result of
a miscarriage of justice, where such conviction has been reversed by
the domestic courts on the ground of a new or newly discovered fact.
Therefore, Article 3 of Protocol No. 7 does not apply before the
conviction has been reversed (see Matveyev v. Russia, no.
26601/02, §§ 38-39, 3 July 2008).
- In
the present case, inasmuch as the applicant’s conviction was
quashed and he applied for compensation after 1 July 2002, the date
of entry into force of Protocol No. 7 in respect of Armenia, the
conditions for jurisdiction ratione temporis are satisfied
(ibid.). Furthermore, the Court has no doubts that this Article is
applicable to the applicant’s case, all the necessary elements
being in place.
- As
regards compliance with the guarantees of Article 3 of Protocol No.
7, the Court considers that, while this provision guarantees payment
of compensation according to the law or the practice of the State
concerned, it does not mean that no compensation is payable if the
domestic law or practice makes no provision for such compensation
(see also paragraph 25 of the Explanatory Report to Protocol No. 7 to
the Convention in paragraph 30 above). Furthermore, the Court
considers that the purpose of Article 3 of Protocol No. 7 is not
merely to recover any pecuniary loss caused by wrongful conviction
but also to provide a person convicted as a result of a miscarriage
of justice with compensation for any non-pecuniary damage such as
distress, anxiety, inconvenience and loss of enjoyment of life. No
such compensation, however, was available to the applicant in the
present case.
- There
has accordingly been a violation of Article 3 of Protocol No. 7 to
the Convention.
(c) Article 5 § 5 of the Convention
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
- Having
regard to its finding under Article 3 of Protocol No. 7 (see
paragraph 52 above), the Court considers that it is not necessary to
examine whether, in this case, there has been a violation of Article
5 § 5 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained that his ill-treatment, unlawful arrest and
detention, and his unfair conviction violated the guarantees of
Articles 3, 5 and 6 of the Convention.
- The
Court reiterates that, in accordance with the general rules of
international law, the provisions of the Convention do not bind a
Contracting Party in relation to any act or fact which took place or
any situation which ceased to exist before the date of the entry into
force of the Convention with respect to that Party (see Blečić
v. Croatia [GC], no. 59532/00, § 70, ECHR 2006 III).
The Court observes that the events complained of took place prior to
the date of the Convention’s entry into force in respect of
Armenia, namely 26 April 2002.
- It
follows that this part of the application is incompatible ratione
temporis with the provisions of the Convention within the meaning
of Article 35 § 3 and must be rejected in accordance with
Article 35 § 4.
- Lastly,
the applicant complained, under the same Articles, that his claim for
pecuniary damage was not granted in full.
- Having
regard to all the material in its possession, and in so far as this
complaint falls within its competence, the Court finds that it does
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 AMD 34,000,000 in respect of pecuniary damage, such
as incurred costs and loss of earnings. He further claimed 274,959
euros (EUR) in respect of non-pecuniary damage.
- The
Government submitted that the applicant’s claim for pecuniary
damage was unsubstantiated and had in fact already been granted by
the domestic courts. His claim for non-pecuniary damage was
unfounded.
- The
Court does not discern any causal link between the violations found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant EUR 30,000 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed AMD 1,000,000 for the costs and expenses
incurred before the Court, including legal costs, translation and
postal charges.
- The
Government submitted that the applicant’s claim for costs and
expenses was not fully substantiated.
- 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 are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 500 for the
proceedings before the Court.
C. Default interest
- 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
- Declares the complaints concerning the dismissal
of the applicant’s claim for non-pecuniary damage admissible
under Articles 5 § 5 and 13 of the Convention and Article 3 of
Protocol No. 7 to the Convention and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds that there has been a violation of Article
3 of Protocol No. 7 to the Convention;
- Holds that there is no need to examine the
complaint under Article 5 § 5 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, to be converted into the currency of the respondent State at
the rate applicable at the date of settlement:
(i) EUR 30,000
(thirty thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR 500
(five hundred euros), plus any tax that may be chargeable to the
applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 12 June 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
