CASE OF ARTUR IVANOV v. RUSSIA

THIRD SECTION

CASE OF ARTUR IVANOV v. RUSSIA

(Application no. 62798/09)

JUDGMENT

STRASBOURG

5 June 2018

FINAL

05/09/2018

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Artur Ivanov v. Russia,

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

Helena Jäderblom, President,
Branko Lubarda,
Helen Keller,
Dmitry Dedov,
Pere Pastor Vilanova,
Georgios A. Serghides,
Jolien Schukking, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 7 May 2018,

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

PROCEDURE

1. The case originated in an application (no. 62798/09) 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, Mr Artur Germanovich Ivanov (“the applicant”), on 6 November 2009.

2. The applicant was represented by Mr A.V. Glukhov, chairman of the non‑governmental human rights organisation Schit i Mech based in Novocheboksarsk, in the Chuvash Republic. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3. The applicant alleged that he had been subjected to ill-treatment by the police, and that the State, while having conducted an effective investigation into the incident, had failed to award him just compensation.

4. On 19 September 2016 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1977 and lives in Novocheboksarsk.

6. The facts of the applicant’s ill-treatment in police custody were established in a judgment of the Novocheboksarsk Town Court of the Chuvash Republic (“the Town Court”) of 22 August 2008 and upheld on 11 November 2008 by the Supreme Court of the Chuvash Republic. The facts are as follows.

7. On 10 April 2007 the applicant was stopped by police officers on a street near his home and taken to district police station no. 1 of Novocheboksarsk to have his identity checked. At the police station a district police officer (участковый уполномоченный милиции), Officer M. from the Novocheboksarsk town police station, who wore a police uniform, threatened the applicant by saying that a criminal case against him would be opened, grabbed him by his clothing, violently pushed him backwards against a wall several times and punched his left ear.

8. According to a forensic medical expert’s report, the applicant had a traumatic rupture of the left eardrum with a haemorrhage, which caused a short-term – lasting between six and twenty-one days – health disorder. Accordingly, this qualified as “insignificant” health damage.

9. Officer M. was convicted under Article 286 § 3 (a) of the Criminal Code (abuse of power with the use of violence) and sentenced to three years’ imprisonment and a two‑year ban on exercising official power.

10. In January 2009 the applicant brought a civil claim in the amount of 312,487 Russian roubles (RUB) against the Ministry of Finance of the Chuvash Republic in respect of non-pecuniary damage. He argued, inter alia, that his ill‑treatment by the police had amounted to inhuman and degrading treatment proscribed by Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), and that, in accordance with the Plenary Supreme Court Resolution no. 5 of 10 October 2003, the domestic courts were to apply the Convention in accordance with the case-law of the European Court of Human Rights (“the Court”). He also argued that, in calculating the amount of compensation due in respect of non‑pecuniary damage for a violation of the Convention, the domestic courts therefore had to take into account the sums awarded by the Court under Article 41 of the Convention in similar cases. He stated that his claim had been calculated based on the sum awarded by the Court in the case of Ribitsch, in which a violation of Article 3 of the Convention had been found on account of inhuman and degrading treatment in police custody (see Ribitsch v. Austria, 4 December 1995, Series A no. 336).

11. On 6 April 2009 the Town Court allowed the applicant’s civil claim in part. It noted that, under Article 61 § 4 of the Code of Civil Procedure, a judgment in a criminal case which had become enforceable was binding on a court examining the civil-law consequences of the acts of a person against whom the judgment had been delivered, in so far as it established whether those acts had taken place and whether they had been committed by that person. Article 53 of the Constitution and Articles 151 and 1069 of the Civil Code provided for State liability for harm caused to individuals by State agents. Relying on Articles 1099-1101 of the Civil Code of the Russian Federation and section 8 of the Plenary Supreme Court Resolution no. 10 of 20 December 1994, the Town Court held that RUB 20,000 would be just and reasonable satisfaction for the applicant’s mental suffering as a result of his ill-treatment by the police officer, treatment which had undermined his honour and dignity and caused him insignificant health damage.

12. The applicant appealed against the judgment. On 6 May 2009 the Supreme Court of the Chuvash Republic upheld the judgment on appeal, fully endorsing the Town Court’s calculation of the amount of compensation in respect of non‑pecuniary damage. It disagreed with the applicant that, in determining the amount of compensation for non‑pecuniary damage, the domestic courts had to be guided by the amounts of such compensation awarded by the Court in similar cases, stating as follows:

“Indeed, in accordance with Article 15 § 4 of the Constitution of the Russian Federation, commonly recognised principles and norms of international law and international agreements of the Russian Federation are an integral part of [the Russian Federation’s] legal system. However, this does not mean that the amount of compensation for non-pecuniary damage determined by the European Court of Human Rights in a specific case has a binding effect on national courts examining other cases where a violation of similar norms and principles can be found. The determination of the amount of compensation for non-pecuniary damage in specific cases is the prerogative of national courts examining such cases.”

II. RELEVANT DOMESTIC LAW AND PRACTICE

13. The Constitution of the Russian Federation

Article 15 § 4

“The internationally recognised principles and rules of international law and the international treaties to which the Russian Federation is a party are an integral part of its legal system. Where such international treaties provide for rules different from those in the domestic legislation, the rules of the international treaty shall prevail.”

Article 53

“Everyone shall have the right to compensation by the State for harm caused by the unlawful action (or inaction) of State organs or their officials.”

14. An individual’s life and health, personal dignity and integrity, honour and goodwill are considered to be the person’s “non-property rights” or “intangible assets” protected under the Civil Code of the Russian Federation (Article 150). If certain actions impairing an individual’s personal non-property rights or encroaching on other intangible assets have caused him or her non-pecuniary damage (physical or mental suffering), the court may impose on the perpetrator an obligation to pay pecuniary compensation for that damage. The amount of compensation depends on the offender’s degree of fault and other significant circumstances. The court must also take into account the degree of physical or mental suffering experienced by the victim (Article 151). The degree of physical or mental suffering is assessed on the basis of the circumstances of the case and the personality of the victim. The amount of compensation must be reasonable and equitable (Article 1101). Other specific circumstances attesting to the degree of suffering must also be taken into account (section 8 of the Resolution of the Plenary Supreme Court of the Russian Federation no. 10 of 20 December 1994).

15. A State agency or a State official is liable to a citizen for damage caused by their unlawful actions or failure to act. Compensation for such damage is at the expense of the federal, regional or municipal treasury (Article 1069 of the Civil Code). Compensation for non-pecuniary damage is unrelated to any award in respect of pecuniary damage (Article 1099). Irrespective of the tortfeasor’s fault, non-pecuniary damage shall be compensated for if the damage was caused: by a hazardous device; in the event of an unlawful conviction or prosecution or the unlawful application of a preventive measure or unlawful administrative punishment; through the dissemination of information which was damaging to a person’s honour, dignity or reputation; and in other instances specified by law (Article 1100).

16. The relevant part of the Resolution of the Plenary Supreme Court of the Russian Federation no. 5 of 10 October 2003 on the Application of Universally Recognised Principles and Norms of International Law and International Treaties of the Russian Federation by Courts of General Jurisdiction reads:

“10. ... As a member State of the Convention for the Protection of Human Rights and Fundamental Freedoms, the Russian Federation recognises the jurisdiction of the European Court of Human Rights as compulsory in issues relating to the interpretation and application of the Convention and its Protocols, in the event of a presumed breach of the provisions of the [Convention and its Protocols] by the Russian Federation, if such a breach has taken place after the entry into force of [the Convention and its Protocols] in respect of the Russian Federation (section 1 of the Federal Law on the Ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols, no. 54 of 30 March 1998). This is why the Convention should be applied by courts with regard to the practice of the European Court of Human Rights, in order to avoid any violation of the Convention.”

17. The relevant part of the Resolution of the Plenary Supreme Court of the Russian Federation no. 21 of 27 June 2013 on the Application of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 and its Protocols by Courts of General Jurisdiction reads:

“9. In compliance with the generally recognised principles and rules of international law, [and] the provisions of Articles 1 and 34 of the Convention as interpreted by the European Court, for the purposes of restoring a person’s violated rights and freedoms, a court needs to establish the fact of a violation of such rights and freedoms, reflecting [that violation] in the judicial decision. The pecuniary and (or) non-pecuniary damage caused by such a violation is liable to be compensated for in accordance with the procedure prescribed by law.

When establishing the amount of monetary compensation for non-pecuniary damage, the courts can take into consideration the amount of just compensation awarded by the European Court in this respect in the case of similar violations. ...”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

18. The applicant complained that the low amount of compensation awarded to him in the domestic civil proceedings had not provided him with proper redress for the violation of his right not to be subjected to treatment proscribed under Article 3 of the Convention, and that he was therefore still a victim under that Convention provision, which reads as follows:

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

19. The applicant stated that the authorities had established and acknowledged a violation of Article 3 of the Convention. They had convicted the police officer and sentenced him to a fair punishment. Furthermore, they had awarded the applicant compensation for non‑pecuniary damage. However, the amount of compensation was disproportionate to the suffering he had endured, and had been determined without regard to the just satisfaction awarded by the Court in similar cases under Article 41 of the Convention (see Wasserman v. Russia (no. 2), no. 21071/05, §§ 49-50, 10 April 2008, and Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 202-16 and 213, ECHR 2006‑V).

20. The Government acknowledged that the applicant had been subjected to ill-treatment in police custody in breach of Article 3 of the Convention. They further argued that the domestic criminal and civil proceedings had afforded the applicant proper redress. They submitted that the domestic courts had determined the amount of compensation on the basis of the claim as submitted by the applicant, with regard to the duration and severity of the ill-treatment and the gravity of the injury he had sustained. The Government stressed that the injury had been qualified as insignificant, and the amount of compensation could therefore be regarded as reasonable.

21. The applicant maintained that in awarding him a disproportionately low amount of compensation, the domestic courts had considered themselves free from any obligation to be guided by the Court’s case-law with regard to awards under Article 41 of the Convention. He asserted that this was a systemic problem.

A. Admissibility

22. The question of whether the applicant may still claim to be a victim of a violation of Article 3 of the Convention in respect of his alleged ill‑treatment is closely linked to the merits of his complaints under that provision. The Court therefore decides to join this matter to the merits.

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

B. Merits

24. The Court observes that the applicant was stopped by police officers and taken to the police station to have his identity checked. At the police station Officer M. from the Novocheboksarsk town police station, who wore a police uniform, threatened the applicant by saying that a criminal case against him would be opened, grabbed him by his clothing, violently pushed him backwards against a wall several times and punched his left ear. The applicant sustained bodily harm, notably a traumatic rupture of the left eardrum with a haemorrhage, which caused a health disorder lasting between six and twenty-one days. These facts were established in the final judgment delivered in the criminal proceedings against the police officer. The Government acknowledged a violation of the applicant’s right not to be subjected to treatment proscribed by Article 3.

25. The Court agrees with the parties and considers that the acts of violence suffered by the applicant at the hands of the police officer amounted to inhuman and degrading treatment within the meaning of Article 3 (see, for example, Gorshchuk v. Russia, no. 31316/09, §§ 30-34, 6 October 2015).

26. The central question of the present case is whether, in the light of the domestic proceedings which followed, the applicant can still claim to be a victim of the violation of Article 3.

27. The Court reiterates that in cases of wilful ill-treatment by State agents in breach of Article 3, in addition to acknowledging the violation, two measures are necessary to provide sufficient redress. Firstly, the State authorities must have conducted a thorough and effective investigation capable of leading to the identification and punishment of those responsible. Secondly, an award of compensation is required where appropriate or, at least, the opportunity to apply for and obtain compensation for the damage sustained as a result of the ill-treatment (see Gäfgen v. Germany [GC], no. 22978/05, § 116, ECHR 2010).

28. As regards the first measure, the investigation into the applicant’s ill‑treatment was carried out within the framework of the criminal proceedings instituted against the police officer concerned. The criminal proceedings ended with the police officer’s conviction. He was sentenced to three years’ imprisonment and a two‑year ban on exercising official power. The applicant was satisfied that this was appropriate punishment.

29. The parties’ disagreement concerns the second measure. The question before the Court is therefore whether, in view of the compensation obtained by the applicant at the domestic level, he can still claim to be a victim of the violation of Article 3.

30. The Court reiterates that in the case 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 part of the range of available remedies (see Stanev v. Bulgaria [GC], no. 36760/06, § 218, ECHR 2012). The question of whether the applicant received compensation for the damage caused by the treatment contrary to Article 3 – comparable to just satisfaction as provided for under Article 41 of the Convention – is an important indicator for assessing whether the breach of the Convention was redressed (see Kopylov v. Russia, no. 3933/04, § 143, 29 July 2010).

31. In assessing the amount of compensation awarded by a domestic court, the Court considers, on the basis of the material in its possession, what it would have done in the same position. The Court has on numerous occasions affirmed that the finding of a violation is not sufficient to constitute just satisfaction in cases of ill‑treatment suffered by individuals at the hands of the police or other agents of the State. The factors relevant for determining the level of compensation under Article 41 of the Convention in such cases include the seriousness involved in a violation of Article 3 and the harm suffered by the victim. While it is acceptable that a domestic remedy, otherwise meeting the requirements of an “effective remedy”, could result in compensation lower than that awarded by the Court, such compensation should not, however, be unreasonable in comparison with the awards made by the Court in similar cases (see, as a recent authority, Shestopalov v. Russia, no. 46248/07, §§ 58-63, 28 March 2017, with further references).

32. The Court observes that the applicant was awarded 20,000 Russian roubles, the equivalent of approximately 440 euros (EUR). Being mindful of the fact that the case does not concern the lack of an effective investigation, the Court notes that the amount awarded to the applicant was still far less than 5% of what it generally awards in comparable Russian cases (see Gorshchuk v. Russia, no. 31316/09, 6 October 2015 (EUR 17,000 awarded under Article 41 of the Convention); Turbylev v. Russia, no. 4722/09, 6 October 2015 (EUR 20,000); Morgunov v. Russia, no. 32546/08, 11 April 2017 (EUR 20,000); Kondakov v. Russia, no. 31632/10, 2 May 2017 (EUR 20,000); and Sitnikov v. Russia, no. 14769/09, 2 May 2017 (EUR 20,000)). The domestic courts did not offer any explanation for the amount awarded, apart from referring briefly to the judgment in the criminal proceedings in which the applicant’s health damage had been qualified as insignificant based on the health disorder lasting between six and twenty‑one days. This reference in itself is of limited assistance, especially having regard to the serious punishment to which Officer M. was sentenced in those criminal proceedings.

33. The Court concludes that the compensation awarded to the applicant by the domestic courts did not constitute sufficient redress. The applicant may therefore still claim to be a “victim” of a breach of his rights under Article 3 of the Convention. Accordingly, the Government’s objection must be dismissed.

34. The Court finds that there has been a violation of Article 3 of the Convention on account of inhuman and degrading treatment to which the applicant was subjected by the police officer at district police station no. 1 of Novocheboksarsk (see paragraph 25 above).

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 3 OF THE CONVENTION

35. The applicant complained about a violation of Article 13 of the Convention in conjunction with Article 3 of the Convention on account of the low amount of compensation awarded to him in the domestic civil proceedings. Article 13 of the Convention reads as follows:

“Everyone whose rights and freedoms as set forth in [the] 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.”

36. The parties’ submissions are summarised in paragraphs 19-21 above.

A. Admissibility

37. The Court has found that the respondent State is responsible under Article 3 of the Convention for inhuman and degrading treatment suffered by the applicant at the hands of police. The applicant’s complaint in this regard is therefore “arguable” for the purposes of Article 13 in connection with Article 3 of the Convention.

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

B. Merits

39. In so far as the applicant complained that he did not have an effective civil-law remedy in respect of his allegations of ill-treatment by the police, the Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. Article 13 thus requires the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief, although the Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 also varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law (see Z and Others v. the United Kingdom, cited above, § 108, and Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 148, ECHR 2014). The “effectiveness” of a “remedy” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant (see K. and T. v. Finland [GC], no. 25702/94, §§ 198-99, ECHR 2001 VII; Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 197, ECHR 2012; and Peter v. Germany, no. 68919/10, §§ 55-57, 4 September 2014).

40. The Court notes that Russian law enabled the applicant to lodge a civil claim for compensation for the non-pecuniary damage sustained as a result of the ill‑treatment. The fact that his claim was granted only partially is not in itself sufficient to render the remedy ineffective within the meaning of Article 13.

41. Accordingly, there has been no violation of Article 13 of the Convention in conjunction with Article 3 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

42. 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

43. The applicant claimed 11,000 euros (EUR) in respect of non‑pecuniary damage.

44. The Government stated that the applicant’s rights had been fully restored at domestic level, and that his claim for just satisfaction should be rejected.

45. Taking into account the amount awarded to the applicant in the domestic civil proceedings, the Court awards the applicant the amount claimed in respect of non-pecuniary damage, plus any tax that may be chargeable.

B. Default interest

46. 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

1. Decides, unanimously, to join to the merits the question whether the applicant may still claim to be a victim of a violation of Article 3 of the Convention;

2. Declares, unanimously, the application admissible;

3. Holds, unanimously, that the applicant may still claim to be a victim of a violation of Article 3 of the Convention and that there has been a violation of Article 3 of the Convention on account of the applicant’s inhuman and degrading treatment by the police;

4. Holds, by six votes to one, that there has been no violation of Article 13 in conjunction with Article 3 of the Convention;

5. Holds, unanimously,

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 11,000 (eleven thousand euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non‑pecuniary damage;

(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.

Done in English, and notified in writing on 5 June 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stephen PhillipsHelena Jäderblom
RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Serghides is annexed to this judgment.

H.J.
J.S.P.

PARTLY DISSENTING OPINION OF JUDGE SERGHIDES

1. In the present case, the applicant complained of: (a) a violation of Article 3 of the Convention due to acts of violence he had suffered at the hands of the police officer on duty, alleging that they amounted to inhuman and degrading treatment within the meaning of this provision; and (b) a violation of Article 13 of the Convention in conjunction with Article 3 on account of the extremely low amount of compensation awarded to him in the domestic proceedings.

2. The judgment of the Court was unanimous as regards the first complaint in finding the applicant to be a “victim” of a breach of his rights under Article 3 and in finding a violation of that Article. Regarding the applicant’s second complaint, however, I am unable to join my eminent colleagues in finding that there has been no violation of Article 13 in conjunction with Article 3, for the reasons I will explain below.

3. Voting, as the majority did, in favour of no violation of Article 13 in conjunction with Article 3 is, with all due respect, in direct contradiction with the following:

(a) The unanimous finding of the Court made in paragraph 32 of the judgment that the amount awarded to the applicant in domestic civil proceedings for non-pecuniary damage was “still far less than 5% of what [the Court] generally awards in comparable Russian cases”. It is to be noted in this connection, that the Court referred in the same paragraph of the judgment to four similar cases against Russia, where it awarded 20,000 euros (EUR) for non-pecuniary damage, and to another judgment again against Russia, where it awarded EUR 17,000. The Russian domestic courts in the present case awarded the applicant only 20,000 Russian roubles, the equivalent of approximately EUR 440. If one takes EUR 20,000 as the normal or ordinary amount of just satisfaction awarded by the Court, the amount of EUR 440 actually awarded by the domestic courts is only 2.2% of that normal amount. It is immaterial that the Court in the present case awarded only EUR 11,000, because that was the amount claimed by the applicant and the Court could not go beyond the claim. But even taking into account the amount actually awarded in the present case by the Court, and not the normal amount that it would otherwise have awarded, the compensation awarded by the domestic courts was still less than 5%, thus only 4%, of that actual award by the Court.

(b) The unanimous conclusion of the Court in paragraph 33 of the judgment that, since “the compensation awarded to the applicant by the domestic courts did not constitute sufficient redress ... [t]he applicant could still claim to be a ‘victim’ of a breach of his rights under Article 3 of the Convention”. In paragraph 27 of the judgment, the Court reiterates that “in cases of wilful ill-treatment by State agents in breach of Article 3, in addition to acknowledging the violation, two measures are necessary to provide sufficient redress”. One is to conduct “a thorough and effective investigation capable of leading to the identification and punishment of those responsible”. That was done in the present case. And the other measure is to award compensation for the damage sustained as a result of the ill-treatment. However, the amount of compensation awarded in the present case did not provide sufficient redress and that was why the Court unanimously considered the applicant to be a “victim” in terms of Article 3. With all due respect, while the Court rightly considers the applicant to be a “victim” of a violation of Article 3 for the above reason, it is unfortunate, in my view, that the majority nevertheless take a different approach as regards Article 13 and find no violation; despite the fact that the latter provision is the one which expressly and specifically deals with the necessity for everyone whose Convention rights are violated to have an effective remedy at the domestic level.

(c) The legal principle referred to with approval by the majority in paragraph 39 of the judgment, with reference to the relevant case-law of the Court, namely that “the remedy required by Article 13 must be ‘effective’ in practice as well as in law”. In my view, a remedy cannot be effective when it corresponds to an amount in respect of non-pecuniary damage which is, by the Court’s own admission, extremely low, and definitely does not meet the minimum standard laid down by the case-law of the Court.

4. On the contrary, the above-mentioned unanimous findings of the Court, together with the legal principle of effectiveness of remedies restated in the judgment, support my approach that, in the present case, there has been a violation of Article 13 in conjunction with Article 3 because the compensation awarded by the domestic courts for non-pecuniary damage was of an extremely low amount.

5. I would not follow an approach which would render Article 13 devoid of purpose as well as making its letter an empty shell. One cannot speak of an effective national remedy when the compensation is far less than 5%, as it was in the present case, of what the Court in its case-law considers to be effective. Any other approach, apart from being contrary to the letter and aim of Article 13, would be contrary to the Convention’s scope and the principle of effectiveness, which is inherent in it, and which should be taken into account not only in interpreting and applying Convention provisions, but also in implementing them. If the meaning of effectiveness of a remedy in the sense of Article 13 is thus undermined, one cannot avoid ultimately reaching a conclusion which will undermine the entire Convention itself, which, by its nature, was intended to be effective as an international instrument for the protection of human rights.

6. Lastly, any approach other than the one I have proposed would encourage the national authorities to award extremely low amounts for non-pecuniary damage, falling short of the standards of the Court’s case-law, since, by so doing, they would not be troubled by the prospect of being found liable for a violation of Article 13.

7. For the above reasons, I conclude that there has also been a violation of Article 13 in conjunction with Article 3. I would propose an increased amount for the non-pecuniary damage sustained as a result of this additional violation; however, I will not do so, because it would mean going beyond the applicant’s request, thus disregarding the non ultra petita rule. The Court has awarded the applicant EUR 11,000, as he claimed, for both of his complaints.

 

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