Last Updated on April 22, 2019 by LawEuro
Overview of the Case-law of the ECHR 2016
Right to an effective remedy (Article 13)[150]
In Mozer[151], cited above, the applicant, who had been detained since 2008, was convicted in 2010 of defrauding two companies and sentenced to seven years’ imprisonment, five of which were suspended. He was released on the basis of an undertaking not to leave the city of Tiraspol. On an unspecified date after July 2010, he went to Chișinău for medical treatment and, in 2011, to Switzerland, where he applied for asylum. He complained under Article 5 that his detention by the “MRT courts” had been unlawful. He also complained of his treatment in detention under, inter alia, Articles 3, 8 and 9 of the Convention, read alone and in conjunction with Article 13.
The Grand Chamber found that Russia had violated Articles 3, 5, 8, 9 and 13[152] of the Convention and that there had been no violation of those Articles by the Republic of Moldova.
The Grand Chamber found that Russia had violated Article 3 (the applicant’s treatment in detention), Article 8 (restrictions on prison visits by the applicants’ relatives) and Article 9 of the Convention (refusal to allow prison visits from a pastor). It went on to find a rather pragmatic solution to the associated Article 13 complaint. The applicant was found not to have had an effective remedy in the “MRT”. However, the Grand Chamber found that the Republic of Moldova had fulfilled its positive obligations by providing a parallel system of remedies which, although not effective in Transdniestria itself, served to bring individual issues before the Moldovan authorities which could then be the subject of relevant diplomatic and legal steps by them. However, again by virtue of its effective control over the “MRT”, the Russian Government’s responsibility was engaged as regards the lack of effective domestic remedies available to the applicant in the “MRT”.
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The judgment in Kiril Zlatkov Nikolov[153], cited above, concerned the applicant’s inability to benefit from a Constitutional Court ruling – which would have afforded him a remedy for alleged discrimination in the enjoyment of his fair-trial rights – as it did not apply with retrospective effect.
The applicant, a Bulgarian national, was charged with offences relating to international prostitution. Given the nature of the offences, his interview before the investigating judge was not recorded on video. According to the relevant provisions of the Code of Criminal Procedure at the material time, interviews automatically had to be recorded regardless of the offence unless it fell within the following categories: organised crime (the applicant’s case); terrorism; and threats to fundamental national interests. The applicant succeeded in having this provision declared unconstitutional with reference to the principle of equality. However, the ruling of the Constitutional Court had no impact on his case given that, as found by the Court of Cassation, the ruling only benefited persons who were in the applicant’s situation after the date of the publication of the ruling. In the Convention proceedings, the applicant complained among many other things that he had been discriminated against in the enjoyment of his right to a fair trial, contrary to Article 14 of the Convention read in conjunction with Article 6 and, under Article 13, that he had no effective remedy to contest the discriminatory application of the law to his own situation.
The Court’s decision on this latter complaint is noteworthy in that it had to address the applicant’s grievance that he was unable to benefit from the favourable ruling of the Constitutional Court, and was thus denied an effective remedy in breach of Article 13. Interestingly, the Court observed that the applicant’s complaint might appear to not be manifestly ill-founded in view of the Constitutional Court’s ruling. It noted, however, that a complaint which is declared inadmissible in application of the criteria laid down in Article 35 § 3 (b) could not be considered “arguable” for the purposes of Article 13 (see Kudlička v. the Czech Republic[154]). The complaint was therefore manifestly ill-founded.
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150. See also below Paunović and Milivojević v. Serbia, no. 41683/06, 24 May 2016, and Khlaifia and Others v. Italy [GC], no. 16483/12, ECHR 2016, under Article 4 of Protocol No. 4 (Prohibition of collective expulsion of aliens) above.
151. Mozer v. the Republic of Moldova and Russia [GC], no. 11138/10, 23 February 2016.
152. See also Article 1 and Article 5 above.
153. Kiril Zlatkov Nikolov v. France, nos. 70474/11 and 68038/12, 10 November 2016.
154. Kudlička v. the Czech Republic (dec.), no. 21588/12, 3 March 2015.
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