FIFTH SECTION
CASE OF NEDILENKO AND OTHERS v. UKRAINE
(Application no. 43104/04)
JUDGMENT
This version was rectified on 7 February 2018
under Rule 81 of the Rules of Court
STRASBOURG
18 January 2018
This judgment is final but it may be subject to editorial revision.
In the case of Nedilenko and Others v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
André Potocki, President,
Mārtiņš Mits,
Lәtif Hüseynov, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,
Having deliberated in private on 12 December 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 43104/04) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Ukrainian nationals, Mr Mykola Vasylyovych Nedilenko, Mrs Oksana Vasylivna Zagarovska and Mrs Mariya Volodymyrivna Pylypchuk (“the applicants”), on 25 November 2004.
2. The applicants, who had been granted legal aid, were represented by Mr M[1]. Tarakhkalo and Ms O. Protsenko, lawyers practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agents, most recently, Mr I. Lishchyna from the Ministry of Justice.
3. The applicants complained, in particular, about allegedly arbitrary and unreasonable searches of their flats and a lack of effective remedies in respect of their complaints. The first applicant also complained about the allegedly unlawful and unreasonable seizure and retention of his belongings, a lack of effective remedies in respect of that complaint and of the lengthy non-enforcement of a court judgment in his favour.
4. On 24 February 2016 the aforementioned complaints were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
5. The Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejects it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. The applicants were born in 1956, 1962 and 1974 respectively. They reside in Ivano-Frankivsk. The first and second applicants are spouses.
A. Criminal proceedings against the first applicant
7. In March 2001 criminal proceedings were instituted on suspicion that the first applicant, at the material time chairman of a local branch of a private bank, had abused his authority, forged official documents and acted negligently in concluding loan agreements, resulting in damage to the bank.
8. On 20 March 2001 a police investigator ordered a search of the second applicant’s flat, where the first and second applicant resided at the time, and a search of the first applicant’s flat, where the third applicant was living temporarily with her daughter, a minor.
9. On the same date the search orders were approved by the Ivano‑Frankivsk regional prosecutor.
10. Between 6 p.m. and 9 p.m. on 21 March 2001 searches of the two flats were carried out. Twelve suits and twelve bottles of perfume belonging to the first applicant were seized from the second applicant’s flat. In addition, various personal and financial papers and bank deposit certificates belonging to the first applicant were seized from both flats.
11. In December 2001 several bottles of perfume were restored to the first applicant.
12. On an unspecified date several suits, some of which were damaged, were also restored to him.
13. The applicants unsuccessfully complained on numerous occasions to the prosecution authorities about the allegedly arbitrary searches of their flats and the seizure and continued retention of the first applicant’s property. They also lodged similar complaints with the court handling the first applicant’s criminal proceedings.
14. On 6 February 2004 the Ivano-Frankivsk Court of Appeal (“the Court of Appeal”) found the first applicant guilty of one count of forgery and acquitted him of all the other charges. By the same decision, the first applicant was sentenced to a fine of 600 Ukrainian hryvnias (UAH) and dispensed from paying it because the proceedings had become time-barred.
15. In a cassation appeal, the first applicant again complained, in particular, about the searches and the seizure and retention of his belongings, which, according to him, had been arbitrary.
16. On 8 June 2004 the Supreme Court of Ukraine upheld the judgment of 6 February 2004 and it became final. The first applicant’s complaints about the searches, seizure and retention of his belongings were not taken up in the ruling.
B. Compensation proceedings
17. On 21 July 2004 the applicants instituted civil proceedings in the Ivano-Frankivsk Town Court (“Town Court”) against the State of Ukraine and its various agencies, claiming compensation for the damage allegedly inflicted to them in the course of the criminal proceedings against the first applicant. They referred to the Compensation Act of 1994 and the Civil Code provisions on tort law.
18. In 2006 the applicants’ cases were severed into three separate sets of proceedings.
1. The first applicant’s case
19. The first applicant complained, in particular, that his personal belongings (perfume, suits and documents) had been seized unlawfully following arbitrary searches. He also complained that some items had been returned to him in a damaged state, while others had either been lost or had been retained by the police without any justification. Accordingly, the applicant demanded the restitution of his belongings retained by the police and compensation for the pecuniary and non-pecuniary damage resulting from the searches, seizures, lengthy retention and loss of property.
20. On 26 December 2008 the Town Court dismissed the first applicant’s claims. It noted, in particular, that as he had been lawfully convicted there was no legal basis for the State to pay him compensation in connection with the criminal proceedings against him.
21. On 20 May 2009 the Ivano-Frankivsk Regional Court of Appeal quashed that judgment to the extent that it related to the restitution of the belongings retained by the police and compensation for the loss and deterioration of some of the seized items. The court noted in that respect that while the first applicant’s conviction precluded it from considering the case under the 1994 Compensation Act, his claims for damage to the seized property had been substantiated in accordance with the Civil Code. The Court of Appeal found that the police’s arrangements for the storage of the seized items had been inadequate and that the continued storage of some of them had been devoid of a legal basis. The police were ordered to restore the retained items to the first applicant and to pay him UAH 3,750 (around 360 euros (EUR)) in pecuniary damage in connection with the loss, deterioration, and lengthy retention of some of them. In addition, the first applicant was awarded UAH 3,500 (around EUR 330) in respect of non-pecuniary damage.
22. The first applicant appealed in cassation, complaining, in particular, that the question of a justification for the initial searches, seizure and retention of his belongings by the police had been left out of the judicial review.
23. On 17 February 2010 the Supreme Court upheld the ruling by the Court of Appeal and it became final.
24. Subsequently, the first applicant attempted to institute further proceedings claiming a higher amount of compensation, however, they were of no avail.
2. The second applicant’s case
25. The second applicant complained, in particular, that the police had unlawfully searched her flat.
26. On 12 March 2008 the Town Court dismissed her complaints. It found that the second applicant had no standing to lodge the above claims, either under the 1994 Compensation Act or the Civil Code, as she had had no procedural standing in the criminal proceedings within the framework of which the disputed searches and seizures had been carried out.
27. On 27 May 2008 the Ivano-Frankivsk Regional Court of Appeal upheld that judgment.
28. On 18 August 2008 the Supreme Court dismissed a cassation appeal by the second applicant.
3. The third applicant’s case
29. The third applicant alleged, in particular, that the flat where she lived at the material time had been arbitrarily searched.
30. On 6 March 2008 the Town Court discontinued proceedings, finding that the complaints should be lodged before the administrative courts.
31. On 15 April 2008 the Court of Appeal upheld that decision.
32. On 23 February 2009 the Supreme Court of Ukraine dismissed a cassation appeal by the third applicant.
C. Civil proceedings against the Ivano-Frankivsk State Auditing Department
33. On 23 June 2005 the Town Court awarded the first applicant UAH 20,000 from the Ivano-Frankivsk State Auditing Department in connection with irregularities in their reports on the first applicant’s work.
34. On 16 December 2005 the Court of Appeal upheld that decision.
35. On 31 January 2006 the Supreme Court, following a cassation appeal by the Auditing Department, stayed enforcement proceedings.
36. On 7 November 2007 the Department’s cassation appeal was dismissed and the judgment of 23 June 2005 became final.
37. The judgment award was paid to the first applicant in full by 24 April 2008.
II. RELEVANT DOMESTIC LAW
A. Constitution of Ukraine, 1996
38. The relevant provisions of the Constitution read as follows:
Article 30
“Everyone is guaranteed the inviolability of his or her home.
Entry into a home or other possessions of a person, and the examination or search thereof, shall not be permitted, other than pursuant to a reasoned court decision.
In urgent cases related to the preservation of human life and property or to the direct pursuit of persons suspected of committing a crime, another procedure established by law is possible for entry into a home or other possessions of a person, and for the examination and search thereof.”
Chapter XV
Transitional Provisions
“13. The existing procedure for the arrest, custody and detention of persons suspected of committing an offence, and the procedure for carrying out an examination and search of a person’s home and other property, shall be retained for five years after the entry into force of the present Constitution.”
B. Code of Criminal Procedure of 28 December 1960 (as worded at the material time)
39. The relevant extracts of the Code provided as follows:
Article 177. Grounds for searches
“A search shall be carried out by an investigator in the event of his having sufficient information indicating that instruments used for committing a crime, objects and valuables acquired as a result of criminal activity, as well as other objects and documents which are relevant to the establishment of the facts of a case, are hidden in a particular location or place or on some person. ...
A search may be carried out upon the order of the investigator and only after authorisation by the prosecutor or his deputy ...”
40. On 21 June 2001 the above provision was modified, in particular by including a requirement for prior judicial authorisation for a search and seizure operation in residential premises, in line with Article 30 of the 1996 Constitution.
C. Act on the procedure for compensation for damage caused to citizens by the unlawful acts of bodies of inquiry, pre-trial investigation authorities, prosecutor’s offices and courts of 1 December 1994 (“the 1994 Compensation Act”)
41. Under section 1 of the Act as worded at the material time, a person was entitled to compensation for damage caused, in particular, by an unlawful search or seizure operation.
42. Section 2 listed the cases in which the right to compensation arose. They included the following: an acquittal; a judgment on the merits of a criminal case or another judicial decision acknowledging, in particular, that a search or seizure had been unlawful; or a discontinuation of criminal proceedings on the grounds of a lack of corpus delicti or of proof of guilt.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
43. The first applicant complained about the lengthy non-enforcement of the court judgment of 23 June 2005 in his favour. He referred to Article 6 of the Convention, which, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
44. The Government did not comment on that complaint.
45. The Court reiterates that an unreasonably long delay in the enforcement of a binding judgment may breach the Convention (see, among many other authorities, Yuriy Nikolayevich Ivanov v. Ukraine, no. 40450/04, § 53, 15 October 2009).
46. Turning to the facts of the present case, the Court observes that the judgment of 23 June 2005 against the Ivano-Frankivsk State Auditing Department awarding the first applicant UAH 20,000 became final on 7 November 2007. Enforcement proceedings were started initially after the judgment at issue had been upheld on appeal, but they were stayed after the Auditing Department lodged a cassation appeal. Eventually, the judgment at issue was enforced by 24 April 2008, that is, within five and a half months of it becoming final.
47. The Court considers that this period does not raise an issue under the Convention.
48. Accordingly, this complaint must be rejected as manifestly ill‑founded within the meaning of Article 35 § 3(a) of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
49. The applicants complained that their residences had been arbitrarily searched, in breach of Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
A. Admissibility
1. Submissions by the parties
50. The Government argued that the six-month period for lodging the complaint had not been observed. In their view, that period had started to run from the date of the alleged interference (21 March 2001) as at the material time there had been no effective domestic remedies for the applicants’ complaints.
51. The Government also argued that the applicants’ complaint was in any event manifestly ill-founded. They noted that the disputed searches had been carried out within the framework of the investigation into criminal misconduct by the first applicant. Search orders had been duly approved by the prosecutor, had been carried out in the presence of lay witnesses and had been in full compliance with the provisions of Article 177 and other provisions of the Code of Criminal Procedure of 1960, which had been in force at the material time.
52. The applicants disagreed. In so far as the six-month rule objection was concerned, they recognised that their attempts to air their complaint before the domestic prosecutorial authorities and the criminal and civil courts (see paragraphs 13, 15 and 17 above) had been to no avail. However, in their view, it had not been obvious at the outset that their efforts were doomed to failure. They stated that they should not be reproached for attempting to exhaust whatever remedies had existed at the material time in the domestic legal order before lodging their application with the Court.
53. The applicants reiterated that the disputed searches had been in breach of their rights guaranteed by Article 8 of the Convention.
2. The Court’s assessment
54. The Court notes that in other Ukrainian cases it has already dismissed arguments similar to those made by the Government in this case about the alleged failure to comply with the six-month time-limit (see Vladimir Polishchuk and Svetlana Polishchuk v. Ukraine, no. 12451/04, §§ 38-39, 30 September 2010; Ratushna v. Ukraine, no. 17318/06, § 62, 2 December 2010 and Zosymov v. Ukraine, no. 4322/06, §§ 51-55). It considers it appropriate to dismiss the Government’s arguments raised in the present case on the same grounds.
55. The Government’s objection concerning non-compliance with the six-month rule should therefore be dismissed.
56. The Court further considers that the complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention and not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
57. The applicants alleged that the searches in their flats had been neither lawful nor necessary in a democratic society.
58. The Government did not submit any comments on the merits.
59. The Court finds that the impugned searches constituted an interference with the applicants’ rights to respect for their private life and home within the meaning of Article 8, paragraph 1 of the Convention. The question remains whether that interference was justified under paragraph 2 of that provision.
60. In that connection, the Court reiterates that in order to comply with Article 8 § 2, the interference must, among other things, be “in accordance with the law”; that is, it should have some basis in domestic law and be compatible with the rule of law (see, among other authorities, S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 95, ECHR 2008, and Belousov v. Ukraine, no. 4494/07, § 104, 7 November 2013).
61. In its recent judgment in the case of Zosymov (cited above, § 60), the Court recapitulated the principles relevant to the concept of the rule of law as follows:
“In matters affecting fundamental rights, it would be contrary to the rule of law for the legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise (see, among other authorities, Gillan and Quinton v. the United Kingdom, no. 4158/05, § 77, ECHR 2010 (extracts), with further references). The existence of specific procedural safeguards is material in this context. What is required by way of safeguard will depend, to some extent at least, on the nature and extent of the interference in question (see P.G. and J.H. v. the United Kingdom, no. 44787/98, § 46, ECHR 2001-IX). In various contexts of Article 8 of the Convention, the Court has emphasised that measures affecting human rights must be subject to some form of adversarial proceedings before an independent body competent to review in a timely fashion the reasons for the decision and the relevant evidence (see, as a recent authority, Kotiy v. Ukraine, no. 28718/09, § 68, 5 March 2015).”
62. With regard to the safeguards against abuse existing in Ukrainian legislation at the material time, the Court observes that, in the absence of a requirement for prior judicial authorisation for searches and seizures before the June 2001 amendments to the 1960 Code of Criminal Procedure (see paragraph 40 above), the law-enforcement authorities had unfettered discretion to assess the expediency and scope of such measures. Furthermore, the fact that search orders were issued in the present case by the law-enforcement authorities was not counterbalanced by the availability of some meaningful ex post factum judicial review procedure, as acknowledged by the Government in their observations (see paragraph 50 above; compare and contrast with Smirnov v. Russia, no. 71362/01, § 45, 7 June 2007).
63. The Court reiterates that the rule of law implies, inter alia, that interference by the executive authorities with an individual’s rights should be subject to effective supervision, which should normally be carried out by the judiciary, at least in the last resort, since judicial control affords the best guarantees of independence, impartiality and a proper procedure (see in this context Volokhy v. Ukraine, no. 23543/02, § 52, 2 November 2006). Absent a legally established procedure ensuring the meaningful involvement of an independent judiciary body in scrutinising the legality and proportionality of the search operations at the material time, the Court concludes that the interference complained of cannot be considered as having been compatible with the “rule of law”: the applicable law did not provide sufficient safeguards against an abuse of the disputed police interventions (see, mutatis mutandis, Funke v. France, 25 February 1993, § 57, Series A no. 256‑A; Volokhy, cited above, § 54; and Zosymov, cited above, §§ 61‑ 62).
64. Those findings are sufficient for the Court to conclude that there has been a breach of Article 8 of the Convention. They also obviate the need to examine the other arguments submitted by the parties.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 OF THE CONVENTION
65. The first applicant further complained that his papers, suits and perfume had been arbitrarily seized and retained by the police for a lengthy period of time in conditions which had caused a deterioration and loss of property. He relied on Article 1 of Protocol No. 1 to the Convention, the relevant parts of which read as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
A. Admissibility
66. The Government noted that this complaint had been examined by the domestic courts, which had awarded the first applicant compensation for the lengthy retention of and damage to those of his belongings which had not been returned to him in due time. In the absence of any evidence that the amount of compensation was arbitrary, there was no Convention issue to raise and the complaint was manifestly ill-founded.
67. The first applicant disagreed. He argued that the compensation had been inadequate. Moreover, the courts had not considered a very important aspect of his complaint: the question of whether the initial seizure had been arbitrary.
68. In the light of the case file materials and arguments raised by the parties, the Court considers that the present complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention and that the arguments raised by the parties call for its examination on the merits.
69. The Court further considers that the present complaint is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
70. The first applicant argued that the applicable law had not included any procedural safeguards against the unfettered discretion exercised by the law-enforcement authorities in making decisions concerning the seizure of his belongings. In his view, the measure had been too broad and the items concerned had had no relevance to the investigation within the framework of which they had been seized. The items should not have been seized at all, or, at the very least, they should have been returned to him promptly as their continued retention by the police had served no legitimate purpose. While some items had been returned to the applicant within several months, others had been lost, damaged, or returned after a very significant period of time had elapsed and only after he had instituted a separate set of civil proceedings. The compensation awarded to him by the courts for the lengthy retention, loss and deterioration of his property was not in proportion to the actual pecuniary and non-pecuniary damage sustained.
71. The Government did not comment on the merits of the complaint.
72. The Court notes that it is not disputed in the present case that the papers, suits and perfume seized and retained by the police within the framework of the criminal investigation against the first applicant constituted possessions for the purposes of Article 1 of Protocol No. 1.
73. The Court considers that the impugned measures constituted interference falling within the scope of the second paragraph of Article 1 of Protocol No. 1 concerning “control of the use of property” (see, for example, Plakhteyev and Plakhteyeva v. Ukraine, no. 20347/03, § 53, 12 March 2009).
74. In that connection, the Court reiterates that the first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful (see Iatridis v. Greece [GC], no. 31107/96, § 58, ECHR 1999‑II). The requirement of lawfulness for the purposes of Article 1 of Protocol No. 1, as for the purposes of Article 8 discussed above, presupposes compliance with the relevant provisions of domestic law and compatibility with the rule of law, which includes freedom from arbitrariness (see, among other authorities, Zosymov, cited above, § 73, with further references).
75. The Court notes that the first applicant eventually received compensation for the lengthy retention, loss and deterioration of some items seized from him (see paragraph 21 above). Regard being had to the Court’s subsidiary role under the Convention, it does not consider itself competent in the present case to substitute its own judgment for that of the domestic judicial authorities in determining the fair amount of compensation. At the same time, the Court notes the first applicant’s argument that a central element of his complaint – namely concerning the arbitrariness of the initial seizure as such – was left outside the scope of judicial scrutiny (see paragraphs 21-23 above). It follows that the domestic law, as interpreted by the competent judicial authorities in the present case, did not provide a meaningful possibility of reviewing the unfettered discretion afforded to the law-enforcement authority in deciding what items to seize and retain within the framework of pending criminal proceedings.
76. In view of the above, and similarly to its findings in respect of the applicants’ complaint raised under Article 8 of the Convention, the Court concludes that domestic law did not provide the requisite procedural guarantees against arbitrariness in the application of the above measures and thus did not meet the “quality of law” requirement for the purposes of the Convention (see also Zosymov, §§ 74 and 78). Accordingly, the interference in question was not “in accordance with the law”.
77. Those findings are sufficient for the Court to conclude that there has been a breach of Article 1 of Protocol No. 1 in the present case and obviate the need to analyse any further arguments raised by the parties.
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
78. Referring to Article 13 of the Convention, the applicants also alleged that there had been no effective remedies for their complaints raised under Article 8 and Article 1 of Protocol No. 1. Article 13 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.”
A. Admissibility
79. The Government alleged that there was no issue under Article 13 because the applicants’ complaints under Article 8 of the Convention and Article 1 of Protocol No. 1 were not arguable.
80. The applicants disagreed.
81. The Court observes that Article 13 has been consistently interpreted in its case-law as requiring a remedy in domestic law only in respect of grievances which can be regarded as “arguable” in terms of the Convention (see, as a classic reference, Boyle and Rice v. the United Kingdom, 27 April 1988, § 54, Series A no. 131).
82. Regard being had to the Court’s findings in paragraph 56 and 69 above that all three applicants had made out arguable claims under Article 8 of the Convention and the first applicant had made out an arguable claim under Article 1 of Protocol No. 1, the Court finds that their complaints under Article 13 must be declared admissible.
B. Merits
83. The Court reiterates that Article 13 of the Convention guarantees the availability, at national level, of a remedy to enforce the substance of Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000‑XI).
84. The Court refers to paragraphs 62-63 and 75-76 above, in which it found that domestic law, as interpreted by the competent courts, did not contain any procedural safeguards enabling the applicants to challenge the decisions and conduct of the law-enforcement authorities, which, in their view, had violated their rights under Article 8 of the Convention and Article 1 of Protocol No. 1.
85. In the Court’s view, the foregoing considerations are sufficient to conclude that the applicants had no effective domestic remedies available to them in connection with their complaints under Article 8 of the Convention and Article 1 of Protocol No. 1.
86. Accordingly, there has been a breach of Article 13 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
87. 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
88. The first applicant claimed EUR 27,240 in pecuniary damage. That figure included EUR 4,380 in legal fees allegedly incurred by him in the domestic proceedings; EUR 300 in postal expenses; EUR 200 in copying services and other administrative expenses; and EUR 1,000 and EUR 6,000 in compensation for the perfume and suits, which had been seized and either lost or damaged by the police. The remaining amount of EUR 15,360 was to compensate him for medical expenses allegedly incurred as a result of the stress provoked by the criminal proceedings against him.
89. Further to this amount, all the applicants claimed EUR 50,000 each in non-pecuniary damage.
90. The Government submitted that all the claims lodged by the applicants were unsubstantiated and exorbitant, except for the first applicant’s claim for postal expenses, which the Government left to the Court’s discretion.
91. The Court considers at the outset that the first applicant’s claims for legal fees, postal and other expenses fall to be considered under the head “costs and expenses” (see paragraph 99 below).
92. As far as the first applicant’s claim relating to compensation for lost and damaged suits and perfumes is concerned, an amount has already been awarded in the domestic proceedings. There is no evidence that the award of a further amount is warranted on the facts of the case.
93. The Court notes that the first applicant’s claims for medical expenses have not been supported by documents and, in any event, it fails to discern a causal link between the violations found and the pecuniary damage alleged.
94. In the light of all the above, the Court rejects the first applicant’s claim for pecuniary damage.
95. On the other hand, in so far as the applicants claim non-pecuniary damage, the Court considers that they must have suffered anguish and distress in connection with the violations of their Convention rights. Ruling on an equitable basis, the Court awards EUR 4,500 to the first and second applicants jointly and EUR 900 to the third applicant in respect of non‑pecuniary damage.
B. Costs and expenses
96. The applicants also claimed EUR 10,800 for the legal fees incurred in connection with their legal representation. They presented copies of contracts for legal representation before the Court concluded by them on 4 February 2017 with Mr M.[2] Tarakhkalo and acts of acceptance of his services dated 31 March 2017. According to those documents, Mr Tarakhkalo spent twenty-four hours preparing observations in response to those of the Government on each applicant’s behalf at a rate of EUR 150 per hour. They were only bound to pay those fees if the Court made a relevant legal fees award.
97. The Government noted that only one set of observations had been made on behalf of all three applicants and argued that the amounts claimed were exorbitant.
98. 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.
99. In the present case, regard being had to the documents in its possession, the fact that the applicants have already been granted EUR 850 in legal aid and the above criteria, the Court considers it reasonable to award the applicants jointly EUR 1,650 in legal fees incurred in connection with the Convention proceedings to be transferred directly to the account of the applicants’ lawyer, Mr M.[3] Tarakhkalo. It further awards the first applicant EUR 500 in respect of postal and various other expenses incurred in connection with bringing the domestic and Convention proceedings.
C. Default interest
100. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY,
1. Declares the complaints raised under Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1 admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 8 of the Convention in respect of all applicants;
3. Holds that there has been a violation of Article 1 of Protocol No. 1 in respect of the first applicant;
4. Holds that there has been a violation of Article 13 of the Convention in respect of all applicants;
5. Holds
(a) that the respondent State is to pay the applicants, within three months from the date of this judgment, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to the first and second applicants jointly;
(ii) EUR 900 (nine hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to the third applicant;
(iii) EUR 1,650 (one thousand six hundred and fifty euros), plus any tax that may be chargeable to the applicants, in respect of legal fees, to be transferred directly to the account of the applicants’ lawyer Mr M.[4] Tarakhkalo;
(iv) EUR 500 (five hundred euros), plus any tax that may be chargeable, to the first applicant in respect of other 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;
6. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 18 January 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Anne-Marie DouginAndré Potocki
Acting Deputy RegistrarPresident
[1] Rectified on 7 February 2018: the text was “O. Tarakhkalo”.
[2] Rectified on 7 February 2018: the text was “O. Tarakhkalo”.
[3] Rectified on 7 February 2018: the text was “O. Tarakhkalo”.
[4] Rectified on 7 February 2018: the text was “O. Tarakhkalo”.
Full & Egal Universal Law Academy