Last Updated on February 10, 2021 by LawEuro
. The applicant was convicted of several criminal offences in two sets of criminal proceedings. The case concerns the alleged unlawfulness of his deprivation of liberty within one set of proceedings as a result of the allegedly deficient amending by the trial court of its judgment (Article 5 § 1), and the alleged lack of an enforceable right to compensation in that regard (Article 5 § 5). Furthermore, the applicant complained that the administrative supervision applied to him after his eventual release on parole had been in breach of Article 8 of the Convention and Article 2 of Protocol No. 4.
FIFTH SECTION
CASE OF DEDESH v. UKRAINE
(Application no. 50705/13)
JUDGMENT
STRASBOURG
14 January 2021
This judgment is final but it may be subject to editorial revision.
In the case of Dedesh v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Mārtiņš Mits, President,
Jovan Ilievski,
Ivana Jelić, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 50705/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Oleksandr KyrylovychDedesh (“the applicant”), on 6 August 2013;
the decision to give notice of the application to the Ukrainian Government (“the Government”);
the parties’ observations;
Having deliberated in private on 3 December 2020,
Delivers the following judgment, which was adopted on that date:
1. The applicant was convicted of several criminal offences in two sets of criminal proceedings. The case concerns the alleged unlawfulness of his deprivation of liberty within one set of proceedings as a result of the allegedly deficient amending by the trial court of its judgment (Article 5 § 1), and the alleged lack of an enforceable right to compensation in that regard (Article 5 § 5). Furthermore, the applicant complained that the administrative supervision applied to him after his eventual release on parole had been in breach of Article 8 of the Convention and Article 2 of Protocol No. 4.
THE FACTS
2. The applicant was born in 1951 and lives in Shyroke. He was granted legal aid and was represented by Mr M. Tarakhkalo, a lawyer practising in Kyiv.
3. The Government were represented by their Agent, Mr I. Lishchyna.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
I. Criminal proceedings against the applicant in respect of extortion and armed hooliganism
5. On an unspecified date at the end of July 2010, criminal proceedings were instituted against the applicant on suspicion of extortion and armed hooliganism committed earlier that month. He was suspected of extorting “damages” from an individual in the context of a private conflict and threatening a taxi driver with a knife. As a preventive measure pending trial, an undertaking not to leave the town was imposed on the applicant.
6. On 21 January 2011 the Skadovsk Town Court (“the Skadovsk Court”) found the applicant guilty as charged. It sentenced him to two years’ imprisonment in respect of the extortion charge and to three years’ imprisonment in respect of the charge of armed hooliganism. The aggregate sentence was three years’ imprisonment, the more lenient sentence being absorbed into the heavier one. The trial court ordered that the applicant should remain under the undertaking not to leave the town until the judgment became legally enforceable. It also specified that the prison term was to be calculated from the beginning of the enforcement of the sentence.
7. The applicant, who fully admitted his guilt as regards the charge of armed hooliganism, did not appeal.
8. On 10 May 2011 he started serving his sentence. It was to be served in full on 10 May 2014.
II. Criminal proceedings against the applicant in respect of illegal drug possession
9. On 6 December 2008 criminal proceedings were instituted against the applicant on suspicion of illegal drug possession, after the police had found some cannabis during a search at his home.
10. From 6 December 2008 to 16 March 2010 the applicant was detained. According to him, that constituted his pre-trial detention within the above-mentioned proceedings, which ended with the judgment of 24 January 2013 (see paragraph 12 below). According to the Government, the applicant’s detention during the mentioned period related to a different, unspecified, set of proceedings.
11. The material submitted to the Court does not permit to establish which version is correct. The Court has not been informed of any procedural developments in the criminal proceedings against the applicant in respect of illegal drug possession prior to the delivery of the judgment on 24 January 2013 (see paragraph 12 below).
12. On 24 January 2013 the Kalanchak Town Court (“the Kalanchak Court”) found the applicant guilty of “the illegal acquisition and possession of drugs with no intention to sell” in respect of the cannabis found at his home on 6 December 2008. The trial court sentenced him to a year’s detention in a semi-open prison. It held that the applicant’s sentence was to be regarded as having been absorbed by the heavier three-year prison sentence imposed by the judgment of 21 January 2011 (see paragraph 6 above). Accordingly, the aggregate sentence amounted to three years’ imprisonment. The court specified that the sentence was to include the period of the applicant’s pre-trial detention from 6 December 2008 until 16 March 2010, as well as the period from 10 May 2011 until 24 January 2013, the date of the judgment, during which time the applicant had been serving his sentence under the judgment of 21 January 2011 (see paragraphs 8 and 10 above).
13. The judgment could be appealed against within fifteen days.
14. The applicant did not appeal. According to his submissions, he expected to be released on 28 January 2013 at the latest.
15. On 28 January 2013 the Kalanchak Court issued a ruling, by which it supplemented the operative part of the judgment of 24 January 2013 by stating that the applicant was to be remanded in custody as a preventive measure until the judgment became legally enforceable. That ruling was delivered following a hearing with the prosecutor’s participation, but in the absence of the applicant or his lawyer.
16. On 1 February 2013 the same court – following a hearing in which the prosecutor participated, but not the applicant or his lawyer – issued another ruling, by which it amended the operative part of the judgment of 24 January 2013 once again: this time by having excluded the reference to the applicant’s detention from 6 December 2008 until 16 March 2010 from the calculation of his prison sentence. Following that amendment, only the period from 10 May 2011 until 24 January 2013 was counted towards the applicant’s sentence. The Kalanchak Court based its ruling of 1 February 2013 on Articles 409 and 411 of the Code of Criminal Procedure (see paragraphs 32 and 33 below). It was not indicated whether that ruling was amenable to appeal.
17. On 9 February 2013 the judgment of 24 January 2013, as amended by the above-mentioned rulings of 28 January and 1 February 2013, became final and legally enforceable in the absence of any appeals.
18. On 12 and 13 February 2013 the applicant found out about the amendments of 28 January and 1 February 2013 to the judgment of 24 January 2013. He did not undertake any attempts to appeal against those rulings or the judgment of 24 January 2013 as amended by them.
19. On 8 May 2013 the Kalanchak Court issued the following clarification: the three years’ prison term under the judgment of 24 January 2013 was considered to have started running on 10 May 2011 and was to be fully served on 10 May 2014.
III. The applicant’s release and administrative supervision
20. On an unspecified date in July 2013, in relation to the prison authorities’ intention to release the applicant on parole, the governor of Orikhiv Prison no. 88, in which the applicant was serving his sentence, lodged an application with the Orikhiv Town Court (“the Orikhiv Court”) for the applicant to be placed under administrative supervision (see paragraph 35 below for the definition of this term) for one year following his release. The case file does not contain a copy of that application.
21. On 8 July 2013 a judge of the Orikhiv Court, in the course of written proceedings, allowed the above-mentioned application. He noted that while serving his prison sentence, the applicant had received positive character references, had been rewarded with privileges for good behaviour on one occasion, and had not committed any breaches of the prison regime. The judge observed that all those circumstances had led to the decision to release the applicant on parole under Article 81 of the Criminal Code. However, having regard to the fact that by the judgment of 24 January 2013 the applicant had been convicted of a crime related to drug trafficking, it was considered appropriate to place him under administrative supervision under the Law “On the administrative supervision of persons released from prison” (see paragraphs 35-38 below) for a one-year period. The following restrictions were imposed on the applicant:
“1. A prohibition on leaving [his home] between 9 p.m. and 5 a.m.
2. A prohibition on visiting restaurants, hotels, hostels, train stations, markets, cafés, bars, and kiosks with a view to buying alcohol, as well as [on visiting] wine and spirits shops.
3. A prohibition on leaving town for personal reasons without the authorisation of the officials in charge of [his] administrative supervision; an obligation to inform those officials whenever [he had to travel] on … business.
4. An obligation to report to the police four times per month on an established day between 9 a.m. and 6 p.m.”
22. In addition, the applicant was obliged to comply with the following rules:
“1. To come to the police station when summoned and to give oral and written answers to questions regarding compliance with the rules governing administrative supervision.
2. To inform the police officials in charge of the administrative supervision of any change to [his] work or residential address, as well as of his travelling out of town for official reasons.
3. In the event of [his] leaving town for personal reasons with the permission of the police for a period exceeding one day, to get himself registered at a local police station.”
23. It was noted in the 8 July 2013 ruling that it could be appealed within seven days.
24. The applicant did not lodge an appeal.
25. On 16 July 2013 he was released on parole. During one year thereafter, he was under administrative supervision by the police.
RELEVANT LEGAL FRAMEWORK
I. Criminal Code of 2001
26. Under Article 70 § 1, an aggregate sentence in respect of several offences was to be established by means of the absorption of more lenient penalties into a heavier one or by means of full or partial addition of penalties for each offence.
27. Article 70 § 4 stipulated that the same rules were applicable where after the delivery of a judgment it was established that the convicted person was also guilty of another criminal offence committed prior to that earlier judgment. In such case the sentence served fully or in part under an earlier judgment was to be counted towards the aggregate sentence for the totality of offences.
28. Under Article 81 § 2, a convicted prisoner could be released on parole for good behaviour.
II. Code of Criminal Procedure of 1960 (repealed with effect from 20 November 2012)
29. The relevant part of Article 338 read as follows:
“If the defendant was not detained prior to the delivery of a judgment, his or her sentence shall start running from the beginning of its enforcement.
If the defendant was detained in the framework of the proceedings in question [в цій справі]prior to the delivery of a judgment, the duration of that detention shall count towards his or her sentence.”
30. Article 353 provided that, in a case where the time-limit for lodging an appeal was missed for a valid reason, it was open to the appellant to request renewal of that time-limit.
31. Article 367 provided that a judgment could be quashed or amended by an appellate court, notably, in the event of a substantial breach of the rules of criminal procedure or a misapplication of criminal law.
32. Under Article 409 § 1, it was for the court that delivered a judgment to “resolve any issues concerning doubts or contradictions in respect of the enforcement of that judgment”.
33. Article 411 regulated the procedure for resolution of various issues concerning the enforcement of judgments. It stated, in particular, that the convicted person, as well as his or her lawyer if requested, was to be summoned to the court hearing.
III. Code of Criminal Procedure of 2012 (in force since 20 November 2012)
34. Article 5 defined the temporal scope of the Code. It stated that procedural actions were to be carried out and procedural decisions were to be taken in accordance with the provisions in force at the time when those actions or decisions had been initiated.
IV. Law of Ukraine “on the administrative supervision of persons released from prison” of 1994
35. Article 1 provided the following definition of “administrative supervision”:
“… a system of temporary mandatory preventive measures of supervision and control over the behaviour of certain individuals after their release from prison, carried out by law-enforcement authorities”.
36. Article 2 read as follows:
“Administrative supervision is [carried out] with the aim of preventing the commission of crimes by certain individuals released from prison and for exercising educational influence over them”.
37. Under paragraph (d) of Article 3, administrative supervision was to be imposed on persons who had been sentenced to a prison term for a crime related to drug trafficking.
38. Article 10 read as follows:
“The following restrictions may be applied, fully or in part, to a person subject to administrative supervision, under a judicial ruling:
a) a prohibition on leaving [his/her] house (flat) within determined time frameworks which may not exceed eight hours per day;
b) a prohibition on attending certain places of the district (town);
c) a prohibition on leaving town for personal reasons or restricting the duration [of this type of trips];
d) a requirement to report to the police one to four times per month.”
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION
39. The applicant complained under Article 5 § 1 of the Convention that his detention from 24 January 2013 until his release on parole on 16 July 2013 had been unlawful. He also complained under Article 5 § 5 that he had had no enforceable right to compensation in that regard. The provisions relied on read as follows in the relevant part:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
…
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”
A. Complaint under Article 5 § 1
1. The parties’ submissions
40. The Government argued that the applicant had failed to exhaust the available domestic remedies. They submitted that if he had considered that his deprivation of liberty under the judgment of 24 January 2013, as further amended, ran counter to the applicable legal rules, nothing prevented him from trying through an ordinary appeal procedure to have that judgment quashed on those grounds.
41. In the alternative, the Government contended that the Kalanchak Court’s judgment of 24 January 2013, with its subsequent amendments, had constituted the applicant’s conviction by a competent court. His imprisonment sentence under that judgment had therefore complied with Article 5 § 1 (a) of the Convention.
42. The applicant emphasised that he had fully agreed with the judgment of 24 January 2013 as it had been worded at the time of its delivery and that he had only disagreed with the judicial rulings of 28 January and 1 February 2013 which had allegedly led to an arbitrary extension of his detention. Accordingly, he argued, he could not be reproached for not having challenged that judgment on appeal. The applicant furthermore submitted that he had been discouraged from lodging an appeal by a prospect of a remittal of his case for a retrial and the ensuing risk of a further extension of his detention as a preventive measure until the judgment became final.
43. The applicant submitted that, having regard to the initial wording of the judgment of 24 January 2013, he should have been released on 28 January 2013 at the latest[1].
2. The Court’s assessment
44. The Court reiterates that under Article 35 § 1 it may only deal with a matter after all domestic remedies have been exhausted. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see, among many authorities, Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996‑IV, and Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 70, 25 March 2014).
45. The obligation to exhaust domestic remedies therefore requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness. To be effective, a remedy must be capable of directly redressing the impugned state of affairs and must offer reasonable prospects of success (see, for example, Mozer v. the Republic of Moldova and Russia [GC], no. 11138/10, § 116, 23 February 2016, with further references).
46. Turning to the present case, the Court notes that, while it is unclear whether the applicant could lodge separate appeals against the rulings of 28 January and 1 February 2013 amending the judgment of 24 January 2013, an ordinary appeal procedure in respect of that judgment was readily available to him. It was open to him to challenge the judgment only in the part pertaining to the impugned amendments if he wished so. It is noteworthy that a court of appeal was competent to quash or amend the judgment, notably, in the event of a substantial breach of criminal procedure or a misapplication of criminal law (see paragraph 31 above). However, the applicant preferred to raise an allegation of such a substantial breach of criminal procedure directly before this Court without having provided domestic courts with an opportunity to examine that issue and rectify it if needed. The fact that the applicant found out about the amendments to the judgment beyond the fifteen-day time-limit for lodging appeals did not mean that he could no longer appeal, given that a renewal of the time-limit was possible in case of its missing for valid reasons (see paragraph 30 above).
47. It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
B. Complaint under Article 5 § 5
48. The applicant argued that he had had no enforceable right to compensation in respect of the alleged violation of Article 5 § 1 of the Convention.
49. The Government submitted that there existed the possibility to claim compensation for unlawful detention, subject to a judicial decision acknowledging such unlawfulness. It was not, however, applicable to the circumstances of the present case because the applicant’s detention had been lawful and because he had not sought a judicial declaration establishing otherwise.
50. The Court reiterates that Article 5 § 5 of the Convention is complied with where it is possible to apply for compensation in respect of a deprivation of liberty effected in conditions contrary to Article 5 §§ 1, 2, 3 or 4. The right to compensation set forth in Article 5 § 5 therefore presupposes that a violation of one of the other paragraphs has been established, either by a domestic authority or by the Convention institutions (see Stanev v. Bulgaria [GC], no. 36760/06, § 182, ECHR 2012).
51. In the present case the Court has found the applicant’s complaint under Article 5 § 1 of the Convention inadmissible (see paragraph 47 above). Accordingly, the complaint under Article 5 § 5 must also be rejected (see, for example, A. and Others v. the United Kingdom [GC], no. 3455/05, § 228, ECHR 2009, and Chosta v. Ukraine (dec.), no. 35807/05, 14 January 2014).
52. It follows that the applicant’s complaint under Article 5 § 5 must be rejected as incompatible rationemateriae pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
53. The applicant complained that the hearings of 28 January and 1 February 2013 had taken place in his and his lawyer’s absence. He relied on Article 6 § 1 of the Convention which reads as follows in the relevant part:
“In the determination of … any criminal charge against him, everyone is entitled to a fair and public hearing … by [a] … tribunal …”
54. The Government argued that the applicant had failed to exhaust domestic remedies, given that he had not lodged an ordinary appeal and an appeal on points of law in the criminal proceedings within which the contested hearings had been carried out.
55. The applicant maintained that he had had no intention to appeal against the judgment of the Kalanchak Court of 24 January 2013 in its initial wording. As regards the contested rulings of 28 January and 1 February 2013, he submitted that he had had no possibility to lodge separate appeals against them.
56. The Court will proceed on the basis that the decisions of 28 January and 1 February 2013 modified the sentence imposed on the applicant and that therefore Article 6 of the Convention applied.
57. The Court has found on numerous occasions that compliance with the requirements of a fair trial must be examined in each case having regard to the development of the proceedings as a whole and not on the basis of an isolated consideration of one particular aspect or one particular incident, although it cannot be ruled out that a specific factor may be so decisive as to enable the fairness of the trial to be assessed at an earlier stage in the proceedings (see Beuze v. Belgium [GC], no. 71409/10, § 121, 9 November 2018).
58. The Court has held that an ordinary appeal and an appeal on points of law in Ukraine are considered effective remedies for complaints concerning various aspects of the fairness of criminal proceedings guaranteed by Article 6 of the Convention (see Zhyzitskyy v. Ukraine, no. 57980/11, § 58, 19 February 2015, with further case-law references).
59. In the present case, the applicant’s failure to use an ordinary appeal procedure which was available for him (see paragraph 46 above) means for the Court that he has not exhausted domestic remedies.
60. The Court therefore upholds the Government’s objection and rejects this complaint under Article 35 §§ 1 and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 8 THE CONVENTION
61. The applicant complained under Article 8 of the Convention that there had been a violation of his right to respect for his private life on account of the one-year administrative supervision imposed on him after his release on parole. The relevant part of the provision relied on reads as follows:
“1. Everyone has the right to respect for his private … life …
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
62. The Court takes note of the fact that the applicant did not challenge on appeal the ruling of the Orikhiv Court of 8 July 2013, by which the impugned administrative supervision had been imposed on him, even though such a possibility had existed (see paragraphs 23 and 24 above).
63. However, given that the Government have not raised a non‑exhaustion objection on that account, the Court will not examine this matter (see, among many other references, İnan v. Turkey (dec.), no. 14129/11, § 28, 4 November 2014, and Lelyuk v. Ukraine, no. 24037/08, § 32, 17 November 2016).
64. The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Not being inadmissible on any other grounds, it must therefore be declared admissible.
B. Merits
1. The parties’ submissions
65. The applicant observed that under the Law “On the administrative supervision of persons released from prison” that measure was applicable automatically in situations like his and had not depended on his behaviour, character features or any particular circumstances of his case.
66. He argued that the restrictions imposed on him had neither pursued a legitimate aim nor been necessary in a democratic society.
67. The applicant also noted that the ruling of the Orikhiv Court of 8 July 2013 had not contained any reasoning as to why it had been deemed necessary to place him under administrative supervision for a period exceeding the duration of his outstanding sentence.
68. Lastly, he submitted that he had posed no danger to society and that there had been no information suggesting that he might commit a crime. Nor had it been clear to the applicant what kind of “educational influence” the administrative supervision could have been expected to have on him.
69. The Government conceded that the administrative supervision imposed on the applicant had constituted an interference with his right to respect for his private life. However, they submitted that that interference had been in compliance with Article 8 § 2 of the Convention.
70. The Government observed that it had been based on the Law “On the administrative supervision of persons released from prison”. Furthermore, they argued that the measure in question had pursued the legitimate aim of preventing crime. Lastly, the Government contended that it had not been excessive, given that it had exceeded the outstanding part of the applicant’s sentence by only about two months.
2. The Court’s assessment
71. It is not in dispute between the parties that the placement of the applicant under administrative supervision for one year had interfered with his right to respect for his private life (see paragraph 69 above). The Court sees no reason to find otherwise having regard to the nature and scope of limitations imposed on the applicant (see paragraphs 21 and 22 above).
72. The Court reiterates that any interference can only be justified under Article 8 § 2 if it is in accordance with the law, pursues one or more of the legitimate aims to which paragraph 2 of Article 8 refers and is necessary in a democratic society in order to achieve any such aim (see, among many other authorities, Roman Zakharovv. Russia [GC], no. 47143/06, § 227, ECHR 2015).
73. In the present case the interference complained of was based on the provisions of the Law “On the administrative supervision of persons released from prison” (see paragraphs 21 and 35-38 above).
74. The Court is ready to accept that the measure in question pursued the legitimate aim of the prevention of crime.
75. In determining whether an interference was “necessary in a democratic society”, the Court will assess whether it was proportionate to the legitimate aim pursued and whether the reasons adduced by the national authorities to justify it were relevant and sufficient (see Nada v. Switzerland [GC], no. 10593/08, § 181, ECHR 2012).
76. The Court does not rule out that the restrictions imposed on the applicant – notably, the restriction on attending certain places, travelling without police permission and leaving home during certain hours, as well as the obligation to regularly report to the police, – might, in principle, be necessary in the context of combatting drug trafficking. However, in the applicant’s case the national authorities failed to provide any reasoning, apart from a formalist reference to the applicant’s conviction of “a crime related to drug trafficking” (see paragraph 21 above). The authorities failed to analyse the applicant’s individual circumstances and explain why the restrictions imposed on him were necessary in his case.
77. Accordingly, the interference with the applicant’s right to respect for his private life cannot be regarded as having been based on relevant and sufficient reasons. Therefore, it cannot be regarded as “necessary in a democratic society”.
78. It follows that there has been a violation of Article 8 of the Convention.
IV. alleged violation of article 2 of protocol no. 4
79. Lastly, the applicant complained that the one-year administrative supervision imposed on him after his release on parole had been in breach of his right to liberty of movement under Article 2 of Protocol No. 4.
80. Having regard to its assessment and finding under Article 8 of the Convention (see paragraphs 71-78 above), the Court considers that it has examined the main legal issue raised in the present application in respect of the administrative-supervision measure and that there is no need to give a separate ruling on the admissibility and merits of the above-mentioned complaint under Article 2 of Protocol No. 4 (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
81. 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
82. The applicant claimed 50,000 euros (EUR) in respect of non‑pecuniary damage.
83. The Government contested that claim as unsubstantiated and exorbitant.
84. Having regard to all the circumstances of the present case, the Court accepts that the applicant suffered non-pecuniary damage that cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 1,200 in respect of non-pecuniary damage, plus any tax that may be chargeable.
B. Costs and expenses
85. The applicant claimed EUR 5,209.60 for his legal representation in the proceedings before the Court.
86. The Government contested the claim as unsubstantiated and excessive.
87. 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. In the present case, regard being had to the documents in its possession and the above criteria, and bearing in mind that the applicant’s representative has already been paid EUR 850 under the Court’s legal aid scheme (see paragraph 2 above), the Court rejects the applicant’s claim.
C. Default interest
88. 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 complaint under Article 8 of the Convention admissible;
2. Declares the complaints under Article 5 §§ 1 and 5, as well as Article 6 § 1 of the Convention, inadmissible;
3. Holds that there has been a violation of Article 8 of the Convention;
4. Holds that it is not necessary to examine the admissibility and merits of the applicant’s complaint under Article 2 of Protocol No. 4;
5. Holds
(a) that the respondent State is to pay the applicant, within three months, EUR 1,200 (one thousand and two hundred euros) in respect of non‑pecuniary damage, plus any tax that may be chargeable, to be converted into the currency of the respondent State;
(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 14 January 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Martina Keller Mārtiņš Mits
Deputy Registrar President
_________
[1] The periods from 6 December 2008 until 16 March 2010 and from 10 May 2011 until 24 January 2013, which the Kalanchak Court had initially counted towards the applicant’s sentence, amounted in total to two years eleven months and twenty-six days. Given that the aggregate sentence under the judgment of 24 January 2013 was three years’ imprisonment, the applicant considered that he had only four more days to serve, that is to say, until 28 January 2013.
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