FOURTH SECTION
DECISION
Applications nos. 77209/16 and 77225/16
Michael GALEA against Malta
and Edward PAVIA against Malta
The European Court of Human Rights (Fourth Section), sitting on 4 July 2017 as a Chamber composed of:
Ganna Yudkivska, President,
Nona Tsotsoria,
Paulo Pinto de Albuquerque,
Faris Vehabović,
Carlo Ranzoni,
Georges Ravarani,
Péter Paczolay, judges,
and Marialena Tsirli, Section Registrar,
Having regard to the above applications lodged on 9 December 2016,
Having deliberated, decides as follows:
THE FACTS
1. The applicant in the first case, Mr Michael Galea, is a Maltese national who was born in 1935 and lives in St Julian’s. He is represented before the Court by Dr I. Refalo and Dr S. Grech, lawyers practising in Valletta.
2. The applicant in the second case, Mr Edward Pavia, is a Maltese national who was born in 1954 and lives in Tarxien. He is represented before the Court by Dr I. Refalo.
A. The circumstances of the case
3. The facts of the case, as submitted by the applicants, may be summarised as follows.
1. The criminal proceedings against the applicants
4. In 1983 the first and second applicants were accused, together with other persons (hereinafter jointly referred to as “the defendants”), of several criminal offences. The charges against the first applicant included making false declarations on documents intended for the public authorities; using his position in public office to facilitate the evasion of customs duties; and acting as an accomplice in the use by third parties of false documents and goods illegally imported into the country. The second applicant was accused of falsification of documents, use of false documents and illegal importation of goods into Malta.
5. The case concerned several containers originating from Germany, their importation into Malta and the sale by a German company of their contents to a Maltese company. The second applicant was a director of the latter company. The containers allegedly contained alcoholic beverages but the customs declaration in Malta stated that they carried cheese. The investigation had started after cheap alcoholic beverages had appeared on the market, indicating that they had been imported illegally. Eventually, on 23 December 1983, the police found a huge quantity of alcohol in a garage owned by a transport worker at the above-mentioned Maltese company.
6. The second applicant testified that the containers had carried cheese and that he and another director had arranged the import licences and customs documents. The first applicant, a customs officer, had ordered the release of the containers from customs and he testified that during his on‑sight inspections he had always seen cheese in the containers (cheese was not subject to import duties at the time and went through a fast track procedure).
7. The court considered evidence presented by the prosecution which included statements by four foreign witnesses. Two witnesses from the German company stated that they had never sent cheese to the Maltese company while a witness from the German company’s forwarding agents confirmed that the merchandise had consisted of spirits. The fourth witness could not confirm the contents of the containers. The prosecution presented several documents as evidence, inter alia, Maltese customs records, which showed that the containers had been transporting cheese, and German customs documents which showed that the containers had left Germany with spirits and colour televisions. Thus, the importation licences, customs entries, bills of lading and the original invoice issued by the German company contradicted the documents sent by German customs.
8. The Court of Magistrates, before which the applicants had been arraigned, appointed an expert, X, to examine the origin of certain of the documents. At the time the forensic science laboratory fell under the authority of the police department. X concluded that the same typewriter had been used for typing out the importation licences, the declaration of goods for the contents of the containers and the German company’s invoices. The defendants disagreed with the expert’s conclusion on the grounds that the make of the typewriter had never been established and that it had not been determined whether the typing defects that had been identified were particular to the typewriter used or to a specific model.
9. On 1 December 1994 the Court of Magistrates found the first applicant guilty of all the charges against him while the second applicant was only found guilty of forging and using documents to import goods illegally into Malta. The court sentenced both applicants to two years’ imprisonment, suspended for four years, together with a fine of 403,430.23 Maltese liri (MTL – approximately 939,738 euros (EUR)).
10. The Court of Magistrates agreed with X, the expert it had appointed (see paragraph 8 above), noting that even non-experts would have concluded that the documents had been typed by the same typewriter. That was further confirmed by a mistake in the invoices, which were dated subsequent to the bill of lading rather than before, as they should have been.
11. The court further observed that while one other witness had testified to having bought cheese from the Maltese company, no link between that cheese and the containers had been shown. Nor had it been shown that the samples of cheese found at customs were linked to such containers.
12. In reaching its conclusion, the court, amongst other factors, relied on the documents furnished by German customs (who had no interest in the case); the scientific evidence; its own considerations concerning the orthographical mistakes found in the documents; the structure of the invoices (which, inter alia, referred to dollars rather than the German currency); and the mistake in the date of the two invoices (namely the invoice being post-dated in relation to the bill of lading, indicating irregularities and raising doubts as to the authenticity of the documents). Moreover, the accused had been unable to show what payment they had made for the product.
13. In the Court of Magistrates’ view, the second applicant (and another accused) had falsified the German company’s invoices to show that cheese had been exported from Germany. The second applicant and the other accused had themselves admitted to filling in the importation licenses and taking care of the customs documents. Once they had valid licenses to import cheese, they passed the papers to customs, where the first applicant and another accused (two customs officials), checked whether the containers really contained cheese.
14. The applicants and the other defendants appealed against the judgment of the Court of Magistrates. In connection with the expert X, the first applicant argued that the scientific evidence regarding the typewriter had in no way implied that he had participated in the crime of falsifying documents. Furthermore, the scientific evidence had not shown that the documentation was false. X had not determined whether the defects belonged to a particular typewriter or model and no typewriter had ever been exhibited, therefore he had had no way to rebut that evidence.
15. On 5 October 1998 the Court of Criminal Appeal reversed in part the judgment of the Court of Magistrates in connection with the first applicant, and upheld it in connection with the second applicant. It found the first applicant not guilty of complicity in falsifying documents, but upheld the guilty verdict in regard to complicity in the use of a false document. The court sentenced him to two years’ imprisonment suspended for two years (instead of four), together with a fine of MTL 403,430.23. The court also ordered that failure to pay the fine within one year would lead to it being converted into a term of imprisonment of eighteen months.
16. The Court of Criminal Appeal acknowledged that the best evidence would have been finding the imported goods. However, in the absence of such evidence, secondary evidence could be utilised. The court noted that the Court of Magistrates had relied on documentation obtained from German customs, as well as other ancillary documents such as the invoices, import licences, customs entries and bills of lading. The Court of Criminal Appeal re-examined the relevant documents and the evidence given by witnesses.
17. The Court of Criminal Appeal also considered the evidence given by X and the defendants’ complaint in that regard. The defendants had complained that X’s conclusion could not be accepted because the typewriter that he had allegedly examined, and on which he had based his conclusions, had not been presented in evidence, and therefore they had never been in a position to challenge such evidence. The defendants had further argued that it had never been established whether the defects in the typing had been particular to the typewriter in question or to a specific model. The Court of Criminal Appeal disagreed with the defendants. It emphasised that it trusted the expert by pointing out that the court had regularly appointed him to cases owing to his expertise. Furthermore, the defendants had failed to contest X’s appointment before the first-instance court and had never expressed any doubts as to his professional abilities.
18. In regard to the first applicant, the Court of Criminal Appeal found that his responsibility was engaged from the moment the containers were opened until their eventual release and that therefore he could not be found guilty as an actor or accomplice in the crime of falsification. The court also took account of the fact that he had insisted that in his role as a customs official he had always found that the relevant containers had contained cheese. Bearing in mind all the other evidence, the Court of Criminal Appeal concluded that the first applicant had participated in the illegal importation of goods through the use of false customs documents but had not participated in the crime of falsification of the documents.
2. The constitutional redress proceedings
19. On 17 March 1999, the applicants, along with two of the other accused (hereinafter jointly referred to as “the plaintiffs”), filed a constitutional claim before the Civil Court (First Hall) in its constitutional competence. Invoking Article 6 of the Convention and Article 39 of the Constitution of Malta, they complained about the length of the criminal proceedings. They also alleged that the trial had not been fair because the court-appointed expert, X, had worked for the same department as the prosecution (the Department of Police) and had therefore lacked independence. Moreover, both the Court of Magistrates and the Court of Criminal Appeal had relied heavily on the evidence given by X. The plaintiffs further alleged that the proceedings before the Court of Criminal Appeal had not been fair. They noted that the latter had considered that it should only in rare cases interfere with the assessment of evidence made by the first-instance court. However, the plaintiffs argued that in a case such as theirs, where the punishment was so serious, the Court of Criminal Appeal ought to have done more. A thorough look at the process of the evaluation of the evidence by the first-instance court would have shown that it had been heard by several different magistrates (as a result of the passage of time); therefore the Magistrate who had given the judgment on 5 December 1995 had not heard all the evidence, nor had all the witnesses been brought before him. Furthermore, certain evidence had allegedly gone missing from the file (which was again blamed on the lengthy proceedings), which had resulted in serious prejudice against all the accused. Owing to the Court of Criminal Appeal’s stance, the double examination that was meant to take place in order to ensure that evidence was properly evaluated had not occurred. The plaintiffs also invoked Article 3 of the Convention, alleging that the mental suffering and psychological trauma they had endured throughout the criminal proceeding had amounted to inhuman and degrading treatment.
20. The proceedings before the Civil Court (First Hall) in its constitutional competence involved approximately forty-one hearings, including twenty-five where no actual proceedings took place. Approximately fifteen adjournments were either attributable to the Attorney General (hereinafter referred to as “the AG”), who was the defendant in the case, or the court, while nine others were attributable to the plaintiffs. A period of inactivity occurred between 27 October 2008 and 2 February 2009 as a result of a request by the applicants to await a decision by the European Court of Human Rights which could have influenced the outcome of their case.
21. In a judgment of 29 September 2009 the court declined to exercise its constitutional powers and dismissed the case without evaluating its merits. It concluded that alternative remedies had been available to the plaintiffs, as established under Article 46 § 2 of the Constitution.
22. The plaintiffs appealed and on 28 May 2010 the Constitutional Court quashed the judgment of 29 September 2009. The case was referred back to the first-instance court to be examined on the merits.
23. The procedure before the Civil Court (First Hall) in its constitutional competence involved twenty-three hearings, including fifteen where no actual proceedings took place. Approximately five adjournments were attributable to the AG or the court. Between 28 March 2011 and 20 November 2013 the proceedings remained at a standstill as the remaining plaintiffs were unable to notify the heirs of one of them who had passed away as the heirs had refused the inheritance.
24. On 24 June 2015 the Civil Court (First Hall), in its constitutional competence, found that the plaintiffs had not suffered any violation of Article 3 of the Convention. It found that they had suffered a violation of Article 6 in respect of the length of the proceedings but not on account of their fairness. The court awarded the plaintiffs EUR 15,000 each, to be set off against the fine imposed by the criminal courts (see paragraphs 9 and 15 above). Two-thirds of the costs of the proceedings were to be met by the plaintiffs and one third by the AG.
25. In regard to the length of the proceedings, the court acknowledged that it had been excessive. The proceedings had begun in 1983, the Court of Magistrates had given judgment on 1 December 1995 and the Court of Criminal Appeal on 5 October 1998. The court authorities had been responsible for some of the delay, as had officials at the Department of Police in relation to their role of presenting evidence at certain hearings. While the case had not been simple, sixteen years for criminal proceedings was excessively lengthy.
26. In regard to the plaintiffs’ complaint regarding the expert’s lack of independence, the court concluded that the evidence given by X had not played a determining role in the finding of the plaintiffs’ guilt. Therefore, no violation had ensued.
27. The second applicant and the other plaintiffs lodged appeals with the Constitutional Court. The first applicant lodged a separate appeal; the Government also appealed. Nine hearings were held by the Constitutional Court, including four where no proceedings took place and which were adjourned, those adjournments being attributable to the Government or the court.
28. On 24 June 2016 the Constitutional Court upheld the findings of the first-instance court. However, it reduced the compensation granted to each applicant for non-pecuniary damage from EUR 15,000 to EUR 5,000. The distribution of the costs of the first-instance proceedings were to remain as established by the first-instance court (see paragraph 24 in fine above), while the costs of the proceedings before the Constitutional Court were to be divided equally between the parties.
29. In regard to the plaintiffs’ complaint concerning the expert, the Constitutional Court stressed that the principle of transparency required that justice should not only be done but should also be seen to be done, and therefore objective impartiality was required. The court made reference to Sara Lind Eggertsdóttir v. Iceland (no. 31930/04, 5 July 2007) and observed the following:
“... it should be noted that Article 6 § 1 of the Convention guarantees a right to a fair hearing by an independent and impartial “tribunal” and does not expressly require that an expert heard by that tribunal fulfils the same requirements (see, mutatis mutandis, Mantovanelli v. France, 18 March 1997, Reports of Judgments and Decisions 1997-II, § 33). However, the opinion of an expert who had been appointed by the competent court to address issues arising in the case was likely to carry significant weight in that court’s assessment of those issues. In its case-law, the ECtHR had recognised that the lack of neutrality on the part of a court-appointed expert may in certain circumstances give rise to a breach of the principle of equality of arms inherent in the concept of a fair trial (see Bonisch v. Austria, 6 May 1985 (Merits), Series A no. 92 §§ 30-35; and Brandstetter v. Austria, 28 August 1991, Series A no. 211, § 33). In particular, regard must be had to such factors as the expert’s procedural position and role in the relevant proceedings (see Bonsich, cited above, §§ 31-35).”
The Constitutional Court considered it highly relevant that during the criminal proceedings no objection had been made to the appointment of X as an expert. His professional capabilities had not been contested and no failing on his part had been raised. Furthermore, the Court of Criminal Appeal had pointed out that X had been regularly appointed by the court and that it had trusted him (see paragraph 17 above). Moreover, no proof had been adduced to support the allegation that he was employed by the Commissioner of Police and was subject to his orders (despite it being known that the forensic laboratory fell under the authority of the Department of Police at the time of the proceedings). The Constitutional Court therefore found that there had been no violation of the right to a fair trial resulting from the appointment of X as an expert.
30. In regard to the plaintiffs’ complaint under Article 3 of the Convention, the Constitutional Court acknowledged that the excessive length of the criminal proceedings had created a state of anxiety for all the accused and their families. However, that was not sufficient to find that a person had suffered psychological pressure or mental stress.
31. As to the effectiveness of the remedy granted by the first-instance court, the Constitutional Court referred to local case-law which established that when calculating a just amount of compensation, the court had to take into consideration the following: any unusually long and excessive delays; the nature of the relevant proceedings; the degree of the state of uncertainty, frustration and anxiety such delays necessarily caused to the accused; any lack of initiative by plaintiffs in expediting their case; and any contribution by plaintiffs to delays in the proceedings. Taking into account that the criminal proceedings had lasted sixteen years and the inevitable psychological effect that that would have had on the plaintiffs, the Constitutional Court concluded that it was clear that the final judgment regarding the criminal allegations could have been reached more quickly. Bearing those considerations in mind and taking into account compensation granted in similar cases, the Constitutional Court reduced the amount originally granted in respect of non-pecuniary damage to EUR 5,000 for each applicant.
COMPLAINTS
32. The applicants complain under Article 6 of the Convention of a violation of their right to a fair trial by an independent and impartial tribunal, and about the length of the criminal proceedings brought against them. They also complain under the same provision about the length of the constitutional redress proceedings.
33. The applicants complained under Article 3 of the Convention that the length of the proceedings and the lack of a fair trial had resulted in physical and psychological suffering that amounted to inhuman and degrading treatment.
34. Invoking Article 13 in conjunction with Articles 6 and 3 of the Convention, the applicants alleged that they had not been granted an effective remedy for the violation of their rights.
THE LAW
A. Joinder of the applications
35. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their similar factual and legal background.
B. Complaints concerning the length of proceedings
36. The applicants complain about the length of the criminal proceedings brought against them and the length of the constitutional redress proceedings.
37. They invoke Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations or any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal established by law. ...”
38. As the case currently stands, the Court does not consider itself able to rule on the admissibility of these complaints and finds it necessary to give notice of this part of the application to the respondent Government in accordance with Rule 54 § 2 (b).
C. Complaint under Article 13 of the Convention concerning the lack of an effective remedy with regard to the length of proceedings
39. The applicants complain that they have not been granted an effective remedy for the violation of their right to a trial “within a reasonable time”. They alleged that notwithstanding the Constitutional Court’s judgment of 24 June 2016, they can still claim to be the victims of a violation of their Article 6 § 1 rights owing to the duration of the constitutional redress proceedings and to the low amount of compensation awarded.
40. The applicants invoke Article 13 of the Convention, which 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.”
41. As the case currently stands, the Court does not consider itself able to rule on the admissibility of these complaints and finds it necessary to give notice of this part of the application to the respondent Government in accordance with Rule 54 § 2 (b).
D. Complaint about the fairness of the criminal proceedings
42. Invoking Article 6 § 1 of the Convention, the applicants complained of a violation of their right to a fair trial by an independent and impartial tribunal as a result of the appointment of X, an expert who was employed by the Department of Police.
43. They submitted that adopting the findings of an expert who was dependent on one of the parties and accepting such findings as evidence had been highly dangerous and conducive to an unsafe judgment. They argued that the expert’s conclusions had been such as to convince the criminal courts to make a series of assumptions, while overruling every piece of evidence that had countered those assumptions or showed lacunae in the evidence. They submitted that the expert’s report had influenced the court to such a degree that its assessment of the other evidence had also been tainted, with the consequence that the judgment had been rendered highly unsafe and manifestly unreasonable and that the standard of proof required for criminal purposes had not been met (they referred to Bochan v. Ukraine (no. 2) [GC], no. 22251/08, ECHR 2015, and Carmel Saliba v. Malta, no. 24221/13, 29 November 2016).
44. The Court notes, as the domestic courts pointed out, that the applicants failed to use the ordinary remedies which were at their disposal in connection with the appointment of the expert. In particular, they did not challenge the appointment or confirmation of X during the trial (see paragraphs 17 and 29 above). Nevertheless, the constitutional jurisdictions ruled on the substance of their complaint (see, mutatis mutandis, Vladimir Romanov v. Russia, no. 41461/02, § 52, 24 July 2008). In any event, the Court does not consider it necessary to ascertain whether the applicants have exhausted all the available domestic remedies in this respect as the complaint is in any event inadmissible for the following reasons.
45. The Court reiterates that the requirements of impartiality and independence enshrined in Article 6 of the Convention only refer to the “tribunal” called upon to determine the criminal charges against the accused and do not apply to the prosecuting authorities or to experts (see Zarb v. Malta, (dec.), no. 16631/04, 27 September 2005; see also, more recently, Sarıdaş v. Turkey, no. 6341/10, § 35, 7 July 2015). However, the position occupied by experts throughout the proceedings and the manner in which they perform their functions is relevant in assessing whether the principle of equality of arms has been complied with (see Brandstetter v. Austria, 28 August 1991, § 59, Series A no. 211). On this point, it is to be noted that by virtue of their functions as the neutral and impartial auxiliaries of a court, the statements of court-appointed experts might carry greater weight than those of an “expert witness” called by the accused (see Emmanuello v. Italy (dec.), no. 35791/97, 31 August 1999, and Bönisch v. Austria, 6 May 1985, § 33, Series A no. 92).
46. Admittedly, the fact that the expert charged with examining the documents fell under the Department of Police – the latter department owing a general duty of obedience to the State’s executive authorities and usually having links with the prosecution (see Zarb, decision cited above; see also, mutatis mutandis and in relation to anonymous witnesses, Van Mechelen and Others v. the Netherlands, 23 April 1997, § 56, Reports of Judgments and Decisions 1997-III) – might have given rise to apprehension on the part of the applicant. Such apprehension may have a certain importance, but is not decisive. What is decisive is whether the doubts raised by appearances can be held to be objectively justified (see Brandstetter, cited above, § 44, and Emmanuello, decision cited above).
47. Such an objective justification is lacking in the present case. In the Court’s opinion, the fact that an expert is a member of the police or falls under the authority of one of its departments, does not in itself justify fears that he is unable to act with proper neutrality. To hold otherwise would in many cases place unacceptable limits on the possibility for courts to obtain expert advice, having regard, in particular, to the technical skills that members of the police have in various areas (see, mutatis mutandis, Zarb and Emmanuello, decisions cited above). Furthermore, the applicants did not produce any evidence showing that the expert complained of performed his duties in a way which was not impartial and objective.
48. In addition, it appears that in the present case the courts did not base their conclusions to a large extent on the expert’s testimony (see, a contrario, Sarıdaş, cited above, § 42). On the contrary, other evidence derived from sources unrelated to the expert’s findings was used to arrive at the findings of guilt. In particular, the Court of Magistrates also relied on the documents furnished by German customs, orthographical mistakes in documents and the invoices that were presented to the court (see paragraph 12 above). The court also referred in its judgment to the evidence given by four other witnesses (see paragraph 7 above), failings in the applicants’ defence (see paragraph 11 above), as well as circumstantial evidence (such as the fact that it was always the first applicant who was in charge when opening the containers involved – see paragraph 13 above).
49. In those circumstances, the Court does not consider that the appointment of experts who at the relevant time fell under the authority of the Department of the Police hindered the principle of equality of arms or rendered the proceedings unfair. Furthermore, the applicants had the opportunity to challenge the evidence submitted by the expert and the Court of Criminal Appeal replied in detail to the defendants’ challenges (see paragraph 17 above).
50. The Court notes that, apart from the expert, the applicants’ complaint focuses to a great extent on the assessment of the evidence by the domestic court. In that regard, the Court reiterates that while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see, for example, García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I). The Court should not act as a fourth instance and will not therefore question the judgment of the national courts, unless their findings can be regarded as arbitrary or manifestly unreasonable (see Bochan (No. 2), cited above, § 61), provided that the proceedings as a whole were fair, as required by Article 6 § 1 (see Khamidov v. Russia, no. 72118/01, § 170, 15 November 2007, and Treskavica v. Croatia, no. 32036/13, § 77, 12 January 2016). Indeed, the Court’s primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings. In making this assessment the Court will look at the proceedings as a whole, including the way in which the evidence was obtained, taking into account the rights of the defence, but also the interests of the public and victims in seeing crime properly prosecuted (see Schatschaschwili v. Germany [GC], no. 9154/10, § 101, ECHR 2015, and Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08, 50571/08, 50573/08 and 40351/09, §§ 250-252, ECHR 2016). In the present case there is nothing in the case file to show that the domestic court’s assessment was in any way arbitrary or manifestly unreasonable.
51. Bearing all the above in mind, the Court considers that the applicants’ complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
E. Article 3 alone and in conjunction with Article 13
52. The applicants alleged that the length of the proceedings and the lack of a fair trial had resulted in physical and psychological suffering that amounted to inhuman and degrading treatment, prohibited under Article 3 of the Convention. They also considered that, contrary to Article 13, they did not have at their disposal an effective remedy in this respect.
53. Article 3 of the Convention reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
54. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic societies (see, among other authorities, Gäfgen v. Germany [GC], no. 22978/05, § 87, ECHR 2010). Indeed, the prohibition of torture and inhuman or degrading treatment or punishment is a value of civilisation closely bound up with respect for human dignity (see Bouyid v. Belgium [GC], no. 23380/09, § 81, ECHR 2015).
55. The Court also reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Bouyid, cited above, § 86, and El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 196, ECHR 2012). Ill-treatment that attains such a minimum level of severity usually involves actual bodily injury or intense physical or mental suffering. However, even in the absence of these aspects, where treatment humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition set forth in Article 3 (see Józef Woś v. Poland, no. 6058/10, § 38, 28 June 2016, and Bouyid, cited above, § 87.)
56. The Court considers that the opening of any criminal proceedings implies a level of stress and anxiety for an accused. However, the Court is of the opinion that the severity of the anxiety and stress which the length of proceedings placed on the applicants in this case does not suffice to reach the minimum level of severity for the purposes of Article 3 (see, mutatis mutandis, Mattheopoulos v. Greece, no. 20415/92, Commission’s decision of 12 October 1994). As to the stress allegedly suffered as a consequence of the purported unfair character of the criminal proceedings, the Court recalls that it has concluded that the applicants’ complaints on this point were manifestly ill-founded (see paragraphs 45–51 above).
57. It follows that the complaint under Article 3 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
58. Furthermore, the Court reiterates that Article 13 does not apply if there is no arguable claim. As it has found above that the complaint under Article 3 is manifestly ill-founded, there is no such claim. It follows that Article 13 is not applicable in conjunction with Article 3 (see, mutatis mutandis, Brincat and Others v. Malta, nos. 60908/11, 62110/11, 62129/11, 62312/11 and 62338/11, § 139, 24 July 2014).
59. Accordingly, the complaint under Article 13 is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court, unanimously,
Decides to join the applications;
Decides to adjourn the examination of the applicants’ complaints under Article 6 § 1 of the Convention concerning the length of the criminal and constitutional redress proceedings, and of their complaint under Article 13 of the Convention concerning the lack of an effective remedy with regard to the length of proceedings;
Declares the remainder of the applications inadmissible.
Done in English and notified in writing on 27 July 2017.
Marialena TsirliGanna Yudkivska
RegistrarPresident
Full & Egal Universal Law Academy