CASE OF MILIUKAS v. LITHUANIA

FOURTH SECTION

CASE OF MILIUKAS v. LITHUANIA

(Application no. 10992/14)

JUDGMENT

STRASBOURG

16 April 2019

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

In the case of Miliukas v. Lithuania,

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

Paulo Pinto de Albuquerque, President,
Egidijus Kūris,
Iulia Antoanella Motoc, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 26 March 2019,

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

PROCEDURE

1.  The case originated in an application (no. 10992/14) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian national, Mr Tomas Miliukas (“the applicant”), on 26 January 2014.

2.  The applicant was represented by Mr A. Rybin, a lawyer practising in Moscow. The Lithuanian Government (“the Government”) were represented by their Agent, most recently Ms Lina Urbaitė.

3.  On 28 September 2017 the complaints under Articles 2 and 3 of the Convention concerning the applicant’s conditions of detention and the fire in the prison were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1978 and lives in Druskininkai.

5.  The applicant was detained in Lukiškės Remand Prison periodically between 7 June 2011 and 25 May 2012. He was held in other facilities between 21 June and 5 July 2011; 30 August and 6 September 2011; 27 September and 11 October 2011; 25 October and 8 November 2011; 15 and 17 November 2011; and 6 and 18 January 2012. Between those breaks, the periods he had to spend in overcrowded cells were fourteen, fifty‑five, twenty and a half, thirteen, six and a half, forty‑eight and ninety‑five and a half days respectively.

6.  On 5 January 2011 there was a fire in Lukiškės Remand Prison. The applicant suffered acute poisoning caused by smoke inhalation and fell into a coma for a few hours. After that, he was hospitalised between 7 and 18 January 2012.

7.  On 5 January 2012 a prie‑trial investigation was opened regarding destruction of property and serious health impairment caused by negligence.

8.  On 9 January 2012 a commission was set up to establish the circumstances surrounding the fire and the actions of the officers of Lukiškės Remand Prison during the fire.

9.  On 14 August 2012 the experts received a task to answer two questions: where did the fire start and what was the reason of the fire. On 13 September 2012 an expert report stated that the fire had been caused by an electrical fault, causing short circuits and the electrothermal heating in the utility premises to break down. It also noted that eight persons had been taken to a hospital and 217 persons had been evacuated.

10.  On 30 January 2013 the applicant was questioned in the context of the pre‑trial investigation. He stated that his cellmate had woken him up and that within twenty minutes they had hardly been able to see each other because of the smoke. They had started shouting for help, the applicant had started choking, and he had not been able to breathe. He and other inmates had wet towels and put them on their faces. He remembered only that a firefighter had opened the doors of the cell and taken him by his hand, but then the applicant had fainted and later woken up in the hospital (see paragraph 13 below).

On the same day he asked to be granted victim status. His request was upheld later that day.

11.  The pre‑trial investigation was suspended on 5 November 2013 because of the failure to determine who had caused the fire. The following investigative actions had been performed: the scene of the accident had been examined; the electrics had been inspected; various reports had been received; several witnesses had been questioned; and medical examinations of the victims had been carried out. The applicant claimed that he had not received a copy of the decision to suspend the pre-trial investigation.

12.  The transcripts of the surveillance cameras show that one of the officers smelled smoke at 7.01 a.m. At 7.25 a.m. the officers poured water down the ventilation chamber. The fire brigade was called at 7.37 a.m., the officers were instructed how to carry out the evacuation at 7.40 a.m. and the fire brigade arrived at around 7.44 a.m. The first ambulance arrived at 8.06 a.m. The evacuation of the inmates was finished at 8.08 a.m. The ambulances started taking the victims to the hospital at 8.30 a.m., the applicant was taken to the hospital at 8.40 a.m. and the last ambulance left the prison at 8.58 a.m. It appears that the medical staff of Lukiškės Remand Prison were present during the fire and that the head of the Health Care Service was instructed to organise the provision of first aid for those in need.

13.  In November 2012 the applicant lodged a complaint with the Vilnius Regional Administrative Court, requesting compensation in respect of non‑pecuniary damage for overcrowding, lack of proper separation between sanitary facilities and the cell, insufficient ventilation in Lukiškės Remand Prison from 7 June 2011 until 25 May 2012 and in respect of the alleged inadequate actions of the prison authorities during the fire in that institution on 5 January 2012. The applicant claimed that he had screamed for help during the fire but owing to the untimely actions of the prison authorities he had fallen into a coma that had lasted for several hours (see paragraphs 6 and 10 above). During the hearing, the applicant submitted that the inmates had been told to open the windows before the evacuation. He also confirmed that he had fainted when he had been taken to the ground floor.

14.  In December 2012 Lukiškės Remand Prison submitted their comments and, as regards the fire, they claimed the prison officers had been instructing the prisoners to put wet towels on their faces. The prison officers had also been given instructions on what actions to take. The medical staff distributed the inmates according to their condition and the ones who had been severely injured had been transferred to the hospital.

15.  On 30 January 2013 the Vilnius Regional Administrative Court held that the applicant had not had enough personal space for 268 days, ten evenings and three mornings, and that this had constituted a violation of both the domestic norms and Article 3 of the Convention. As regards proper separation between the sanitary facilities and the cell and alleged lack of ventilation, the court found no violation. As for the fire, the court held that the applicant had been hospitalised between 7 and 18 January 2012 for irritation of the respiratory system due to acute poisoning caused by smoke inhalation. The applicant had been referred to a psychiatrist later and had received medication. The court further held that the prison authorities had merely provided a general description of the actions of the relevant representatives of the prison during the fire and had not provided any information about the specific actions they had taken in order to immediately remove the applicant from his cell or about the first aid he had received. Although the authorities had stated that the inmates had been instructed how to act in case of fire, the applicant had indicated that he had received no such instructions. The authorities had not indicated within what period of time the applicant had received medical help and what that help had entailed. The applicant had stated that he had spent approximately ninety minutes in a cell full of smoke. The court held that the fact that the applicant had been taken to hospital in a coma had proven that the authorities had failed to evacuate him on time. The applicant had had bronchial asthma but the authorities had failed to provide evidence that his condition had been taken into account during the fire. The applicant’s liberty had been restricted because of his status, and the responsibility for his health had fallen on Lukiškės Remand Prison. However, it had not been proved that the officers had acted in a manner prescribed by the law in order to avoid negative consequences to the applicant’s health. As a result, the Vilnius Regional Administrative Court awarded the applicant 10,000 Lithuanian litai (LTL – approximately 2,896 euros (EUR)) in compensation in total: LTL 2,000 (approximately EUR 579) for the conditions of detention and LTL 8,000 (approximately EUR 2,317) for the consequences suffered because of the fire.

16.  The applicant and the authorities appealed. On 5 August 2013 the Supreme Administrative Court allowed the authorities’ appeal in part. It agreed with the first-instance decision as regards the overcrowding and the violation of both the domestic norms and Article 3 of the Convention, but held that there was no information that the prison authorities had breached the requirements for fire prevention or for evacuation of people. The court further held that the prison staff had been active in their response and thus no unlawful actions by the authorities had taken place. The court thus amended the first-instance decision and awarded the applicant LTL 2,000 (approximately EUR 579) in respect of non‑pecuniary damage for overcrowding only.

II.  RELEVANT DOMESTIC LAW

17.  For the relevant domestic law and practice and international material on conditions of detention see Mironovas and Others v. Lithuania (nos. 40828/12 and 6 others, §§ 50-69, 8 December 2015).

18.  Article 31 § 1 of the Code of Criminal Procedure provides that when all the necessary procedural actions have been carried out and all the possibilities have been exhausted during the pre-trial investigation but a perpetrator has not been determined, the pre-trial investigation can be suspended by a reasoned decision of the prosecutor. Such a decision can be appealed against within seven days of the service of a copy of the decision on the victim or his or her representative.

THE LAW

I.  SCOPE OF THE CASE

19.  The Court notes that in his reply to the Government’s observations the applicant raised a complaint concerning the alleged failure of the authorities to take necessary measures to prevent the fire in prison by repairing the electrics in due time. This complaint had not been communicated to the Government. The Court considers that this complaint does not fall within the scope of the present application and therefore there is no need for the Court to examine it (see, mutatis mutandis, N. v. Romania, no. 59152/08, § 110, 28 November 2017 and the cases cited therein, as well as Daktaras v. Lithuania (dec.) [Committee], no. 78123/13, § 34, 7 July 2018).

II.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

20.  Relying on Articles 2 and 3 of the Convention, the applicant complained that the domestic authorities had failed to protect his life during the fire in Lukiškės Remand Prison. He also complained that the domestic authorities had failed to carry out an effective investigation into the circumstances surrounding the fire.

21.  The Court notes at the outset that the Government did not challenge the applicability of Article 2 of the Convention in the present case. In any event, the Court notes that it has found Article 2 applicable in a number of cases where an individual has survived a serious incident in which the right to life or physical integrity was at stake (see R.Š. v. Latvia, no. 44154/14, § 63, 8 March 2018 and the references therein). The particular circumstances of the present case (see paragraph 6 above) leave no doubt as to the existence of a threat to the applicant’s life or physical integrity such as to bring his complaints within the ambit of Article 2, which is therefore applicable to the present case.

22.  Being master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), the Court also considers that the applicant’s complaints should be examined solely from the standpoint of Article 2 of the Convention, which provides, in so far as relevant:

“1. Everyone’s right to life shall be protected by law. ...”

A.  Admissibility

23.  The Government submitted that the applicant had failed to exhaust domestic remedies by failing to complain against the State’s alleged responsibility for the fire and the suspension or ineffectiveness of the pre‑trial investigation.

24.  The applicant did not comment on the matter.

1.  Complaint for the State’s responsibility for the fire

25.  As for the Government’s argument that the applicant had failed to raise the complaint regarding the State’s responsibility for the fire, the Court notes that the applicant asked to award him damages for the causal link between the fire and his health impairment, alleging that the actions of the prison authorities on 5 January 2012 had been inadequate (see paragraph 13 above). His claim against the State for damages was rejected by the Supreme Administrative Court in final decision of 5 August 2013 (see paragraph 16 above). The Court reiterates that in the event of there being a number of domestic remedies which an individual can pursue, that person is entitled to choose a remedy which addresses his or her essential grievance. In other words, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required (see Bajić v. Croatia, no. 41108/10, § 74, 13 November 2012).

26.  The Court therefore considers that in the circumstances of the present case the applicant has made a normal use of the remedies available to him in order to complain about the consequences of the fire and of the allegedly inadequate behavior of the authorities on that occasion. It follows that the Government’s objection has to be dismissed.

2.  Complaint against the suspension or ineffectiveness of the pre-trial investigation

27.  In relation to the Government’s argument that, with regard to procedural obligation to investigate, the applicant could have complained against the decision to suspend the pre-trial investigation, the Court notes that according to the applicant’s submissions, which were not contested by the Government, he did not receive that decision and thus he could not have appealed against it in accordance with domestic law (see paragraphs 11 and 18 above). The Court thus dismisses the non-exhaustion argument submitted by the Government in this regard.

3.  Conclusion on admissibility

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

B.  Merits

1.  Substantive aspect of Article 2 of the Convention

(a)  The parties’ submissions

29.  The applicant stated that he had not been evacuated on time, resulting in his falling into a coma, and that the smoke from the fire had intensified his asthma.

30.  The Government observed that the fire had started when the prisoners had already been awake and breakfast had been served, and officers had been on duty at all posts. Immediate action had been taken to locate the fire and the fire brigade had been called when it had become clear that the officers would not be able to put the fire out. Also, the evacuation had been carried out in due time. The evacuation had begun in the area where the smoke had been detected and which had been most affected. The Government stated that the applicant’s having asthma could not have affected the sequence of evacuation because not all officers had been aware of his condition because of confidentiality regulations. Once the applicant had been evacuated, he had been taken to the ground floor and afterwards to hospital, where he had received proper medical assistance and had fully recovered.

(b)  The Court’s assessment

(i)  General principles

31.  The Court reiterates that Article 2, which safeguards the right to life, enshrines one of the basic values of the democratic societies making up the Council of Europe. The object and purpose of the Convention as an instrument for the protection of individual human beings requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective (see Salman v. Turkey [GC], no. 21986/93, § 97, ECHR 2000‑VII, and Banel v. Lithuania, no. 14326/11, § 62, 18 June 2013).

32.  The first sentence of Article 2 § 1 enjoins the States not only to refrain from the intentional and unlawful taking of life, but also lays down a positive obligation on the States to take appropriate steps to safeguard the lives of those within their jurisdiction (see Mustafayev v. Azerbaijan, no. 47095/09, § 53, 4 May 2017 and the references therein). In the context of prisoners, the Court has previously had occasion to emphasise that persons in custody are in a vulnerable position and that the authorities are under a duty to protect them (see Salman, cited above, § 99 and Česnulevičius v. Lithuania, no. 13462/06, § 84, 10 January 2012). The national authorities also have an obligation to protect the health and well‑being of persons who have been deprived of their liberty (see Mustafayev, cited above, § 54 and the references therein). In the context of Article 2, the obligation to protect the life of individuals in custody also implies an obligation for the authorities to provide them with the medical care necessary to safeguard their life (ibid., § 54).

(ii)  Application of these principles to the present case

33.  First of all, the Court, based on all the material in its possession, points out at the outset that it does not appear to be in dispute that the fire began at around 7 a.m., that the fire brigade was called at around 7.37 a.m. and arrived at around 7.44 a.m. and that the applicant was evacuated before 8.08 a.m. The first ambulance arrived at 8.06 a.m., the ambulances started taking the victims to the hospital at 8.30 a.m. and the applicant was taken there at 8:40 a.m. (see paragraph 12 above). He remained in the hospital for several days. In that connection, the Court notes that it only took seven minutes after the telephone call for the fire brigade to arrive at the prison; the first ambulance also arrived without undue delay. In that connection, the Court notes that, although Lukiškės Remand Prison is in the city centre, it being the rush hour at the time of the fire, it might have made it difficult for the ambulances and fire brigades to reach. The Court is thus satisfied that the applicant’s condition was taken into account by the prison authorities and the medical staff and that he was transferred to the hospital without undue delay.

34.  In those circumstances the Court considers that the State cannot be blamed for the authorities’ actions during the fire, especially taking into account that the fire started in the prison, 217 people were evacuated (see paragraph 9 above) and certain security measures had to be taken. The authorities instructed the inmates to put wet towels on their faces during the fire and distributed the evacuated inmates according to their state of health (see paragraph 14 above). Moreover, the applicant was taken to the hospital where he was given treatment and fully recovered from his condition. It therefore cannot be stated that the authorities were ignorant of the seriousness of the applicant’s injuries or that they failed to fulfil their duty to safeguard his life by providing him with proper assistance in a timely manner.

35.  There has accordingly been no violation of Article 2 of the Convention under its substantive aspect.

2.  Procedural aspect of Article 2 of the Convention

(a)  The parties’ submissions

36.  The applicant claimed that there had been no effective investigation, capable of leading to the identification and punishment of those responsible for the fire and that he had not received any compensation. He also submitted that he had not been informed of the suspension of the pre‑trial investigation (see paragraph 11 above).

37.  The Government argued that it had been established that the fire had been caused by the failure of the electrics. These circumstances had been established by an independent expert and the pre-trial investigation had been suspended because no responsible person had been identified. The authorities had been criticised by the first‑instance court for not submitting certain necessary information but the Government explained that the disclosure of such information could have resulted in a security breach. The Government stated that the authorities had submitted detailed information enabling the courts to examine all the relevant circumstances of the fire.

38.  The Government also submitted that an obligation to investigate was an obligation not of result but of means. This meant that not every investigation had to provide conclusions that would conform to the applicant’s version of events. Moreover, Article 2 of the Convention did not require criminal conviction.

(b)  The Court’s assessment

(i)  General principles

39.  The Court reiterates that the system required by Article 2 of the Convention must provide for an independent and impartial official investigation that satisfies certain minimum standards as to effectiveness (see Karakhanyan v. Russia, no. 24421/11, § 53, 14 February 2017). In such cases, the competent authorities must act with exemplary diligence and promptness and must of their own motion initiate investigations capable of, firstly, ascertaining the circumstances in which the incident took place and any shortcomings in the operation of the regulatory system and, secondly, identifying the State officials or authorities involved. The requirement of public scrutiny is also relevant in this context (see Fanziyeva v. Russia, no. 41675/08, § 51, 18 June 2015).

(ii)  Application of these principles to the present case

40.  Turning to the circumstances of the present case, the Court notes that the available documents show that the authorities did take certain investigative measures. A pre-trial investigation was opened on 5 January 2012 – the day of the fire. However, the applicant was questioned only a year later and the pre‑trial investigation was suspended twenty‑two months later, on 5 November 2013 (see paragraphs 7, 10 and 11 above).

41.  The Court notes that the investigation did not establish anyone responsible. Although the decision to suspend it was quite concise, the fact that no one responsible for the fire had been identified does not raise an issue in itself.

42.  The Court notes that the applicant claimed that he had not been informed of the suspension of the pre-trial investigation (see paragraph 11 and 27 above). The Government claimed that the applicant had to appeal against the suspension of the pre-trial investigation (see paragraph 27 above). However, in the absence of any explanation from the Government, the Court considers that the prosecuting authorities failed to inform the applicant of the progress of the investigation and to provide him in a timely manner with the relevant decisions taken within the framework of the criminal proceedings. The applicant, who was granted victim status (see paragraph 10 above), thus could not appeal against the decision to suspend the pre-trial investigation. The Court reiterates that it is not its role to speculate as to whether the outcome of the proceedings would have been different if the applicant had been informed about the suspension of the pre‑trial investigation. Nevertheless, the fire had had an impact on the applicant’s life and health, and in these circumstances the deprivation of the possibility to appeal had been of certain importance.

43.  The foregoing considerations are sufficient to enable the Court to conclude that the failure to inform the applicant of the decision to suspend the pre‑trial investigation deprived him of an opportunity to appeal against it. It accordingly holds that there has been a violation of Article 2 of the Convention under its procedural limb on that account.

III.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

44.  The applicant complained of inadequate conditions of detention. He relied on Article 3, which reads as follows:

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

A.  Admissibility

45.  The Government submitted that the domestic courts had acknowledged a violation of domestic norms and of Article 3 of the Convention and had awarded the applicant sufficient compensation, and that this had deprived him of victim status.

46.  The applicant considered that he retained his victim status because the compensation awarded had been insufficient.

47.  The principles governing the assessment of an applicant’s victim status have been summarised in paragraphs 178-92 of the Court’s judgment in the case of Scordino v. Italy (no. 1) ([GC], no. 36813/97, ECHR 2006‑V). In that connection, the Court notes that a decision or measure favourable to the applicant is not, in principle, sufficient to deprive him or her of his or her status as a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention. One of the characteristics of sufficient redress which may remove a litigant’s victim status relates to the amount awarded as a result of using the domestic remedy. The Court indicates that an applicant’s victim status may depend on the level of compensation awarded at domestic level on the basis of the facts about which he or she complains before the Court (ibid., §§ 180 and 202).

48.  The Court also refers to the general principles concerning the assessment of an applicant’s victim status in cases of conditions of detention, stemming from its case‑law and to its earlier findings (see Mironovas and Others v. Lithuania, nos. 40828/12 and 6 others, §§ 84‑85 and 93‑94, 8 December 2015) and the specific aspects of victim status in Lithuanian conditions of detention cases (ibid., §§ 86‑88).

49.  In the applicant’s case the Lithuanian courts admitted a violation of both the domestic legal norms and Article 3 of the Convention, setting out specific aspects pertinent to the conditions of detention in Lukiškės Remand Prison (see paragraphs 15 and 16 above). However, the Court considers that even though the applicant was awarded EUR 579 for the time spent in Lukiškės Remand Prison, this amount, whilst apparently consistent with Lithuanian case-law at that time, is significantly lower than the amounts the Court awards in similar cases (see Mironovas and Others, cited above, §§ 99 and 156). The Court thus considers that the applicant retains his victim status under Article 34 of the Convention and dismisses the Government’s preliminary objection of loss of victim status.

50.  The Court furthermore notes that the applicant’s complaint about his conditions of detention is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  The parties’ submissions

51.  The applicant submitted that in Lukiškės Remand Prison he had been detained in overcrowded cells. He also complained of other unsanitary conditions (open toilets, insufficient ventilation).

52.  The Government acknowledged that for 268 days, ten evenings and three mornings the applicant had not had access to sufficient personal space. The Government observed, however, that the applicant had been detained for several non‑consecutive periods because he had been transferred to other facilities during this detention. The Government also noted that the applicant had been able to engage in various out‑of‑cell activities, and participate in sports, in cultural and religious events and social rehabilitation activities.

2.  The Court’s assessment

(a)  General remarks about Lukiškės Remand Prison

53.  The Court notes that it had already had a chance to make general remarks about Lukiškės Remand Prison (see Ščensnovičius v. Lithuania, no. 62663/13, § 76, 10 July 2018 and Aleksandravičius and Others v. Lithuania [Committee], nos. 32344/13 and 4 others, § 37, 4 July 2017).

(b)  The applicant’s situation

54.  The Court refers to the principles summarised in its case‑law regarding overcrowding (see Muršić v. Croatia [GC], no. 7334/13, §§ 136‑41, ECHR 2016).

55.  The applicant complained of the conditions of his detention in Lukiškės Remand Prison from 7 June 2011 until 25 May 2012. The domestic courts found that for 268 days, ten evenings and three mornings the applicant had been held in overcrowded cells (see paragraphs 15 and 16 above). The Court finds that this is the relevant period to consider because although he had spent time also in other facilities, the applicant had less than 3 sq. m of personal space at his disposal for the majority of this period, and this created a strong presumption of a violation of Article 3 (see Muršić, cited above, §§ 136‑37). As for the days he had between 3 and 4 sq. m at his disposal, which, according to the information at the Court’s disposal, amounted to twenty‑five and a half days and in respect of which no strong presumption of a violation of Article 3 of the Convention arises, the Court must have regard to other relevant factors (ibid., § 139). Those are the possibility of sufficient freedom of movement and out‑of‑cell activities and the general conditions of the applicant’s detention.

56.  The Court reiterates its findings as regards Lukiškės Remand Prison and considers that the lack of personal space was coupled with inappropriate physical conditions of detention (see Aleksandravičius and Others, § 37 and Ščensnovičius, § 76, both cited above). The Court therefore finds that the applicant’s conditions of detention subjected him to hardship going beyond the unavoidable level of suffering inherent in detention and thus amounted to degrading treatment prohibited by Article 3 of the Convention.

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

57.  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

58.  The applicant claimed 160,000 euros (EUR) in respect of non‑pecuniary damage.

59.  The Government considered the amount excessive, unreasoned and unsubstantiated.

60.  The Court considers that the applicant undoubtedly suffered distress and frustration in view of his conditions of detention and of the lack of effective investigation into the authorities’ conduct during the fire. However, it considers the amount claimed by him excessive. Making its assessment on an equitable basis, the Court awards the applicant EUR 8,000 in respect of non‑pecuniary damage.

B.  Costs and expenses

61.  The applicant did not submit any claim in respect of costs and expenses. The Court is therefore not called to make any award under this head.

C.  Default interest

62.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Declares the application admissible;

2.  Holds that there has been no violation of Article 2 of the Convention in its substantive limb;

3.  Holds that there has been a violation of Article 2 of the Convention in its procedural limb;

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

5.  Holds

(a)  that the respondent State is to pay the applicant, within three months, EUR 8,000 (eight thousand euros), 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;

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

Done in English, and notified in writing on 16 April 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea Tamietti Paulo Pinto de Albuquerque
Deputy RegistrarPresident

 

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