Last Updated on June 13, 2021 by LawEuro
The case concerns the applicants’ allegations, made under Article 5 § 1 of the Convention, that they were unlawfully deprived of their liberty from 8.30 a.m. on 6 April 2016 to 3 a.m. on 7 April 2016 (Ms Mihu – “the first applicant”) and from 8 a.m. on 6 April 2016 to 4.55 a.m. on 7 April 2016 (Ms Oprea – “the second applicant”).
FOURTH SECTION
CASE OF MIHU AND OPREA v. ROMANIA
(Applications nos. 54983/16 and 59295/16)
JUDGMENT
STRASBOURG
8 June 2021
This judgment is final but it may be subject to editorial revision.
In the case of Mihu and Oprea v. Romania,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
Gabriele Kucsko-Stadlmayer, President,
Iulia Antoanella Motoc,
Pere Pastor Vilanova, judges,
and Ilse Freiwirth, Deputy Section Registrar,
Having regard to:
the applications (nos. 54983/16 and 59295/16) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Romanian nationals, Ms Monica-Angela Mihu and Ms Victoriţa Oprea (“the applicants”), on 6 September 2016 and 5 October 2016 respectively;
the decision to give notice to the Romanian Government (“the Government”) of the complaints concerning Article 5 of the Convention and to declare the remainder of the applications inadmissible;
the parties’ observations;
the decision to dismiss the Government’s objection to the examination of the applications by a Committee;
Having deliberated in private on 11 May 2021,
Delivers the following judgment, which was adopted on that date:
1. The case concerns the applicants’ allegations, made under Article 5 § 1 of the Convention, that they were unlawfully deprived of their liberty from 8.30 a.m. on 6 April 2016 to 3 a.m. on 7 April 2016 (Ms Mihu – “the first applicant”) and from 8 a.m. on 6 April 2016 to 4.55 a.m. on 7 April 2016 (Ms Oprea – “the second applicant”).
THE FACTS
2. The applicants were born in 1963 and 1974 respectively and live in Bucharest. They were represented by Mr C.-M. Toma and Mr S.M. Beleuţă respectively, lawyers practising in Bucharest.
3. The Government were represented by their Agent, Ms O.F. Ezer, of the Ministry of Foreign Affairs.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. The applicants were both insolvency and bankruptcy practitioners and worked together, in their office situated in Bucharest.
6. In September 2015, the Caraș-Severin prosecutor’s office (“the prosecutor’s office”) started criminal investigations in respect of several individuals, including the first applicant, under suspicion of having formed an organised criminal group, and of embezzlement, fraud by false representation, bankruptcy fraud, abuse of office, and money laundering, in connection with her activity as a bankruptcy practitioner. In January 2016 the investigation was extended to also include the second applicant’s activity as a bankruptcy practitioner.
7. On 5 April 2016, in the light of the evidence thus gathered, the prosecutor’s office decided to proceed with simultaneous investigatory measures, such as searches and seizures in several locations in Romania, the questioning of twenty-one suspects (including the applicants), witness interviews, and an order for the handing over of documents relevant to the investigation. Those actions were all scheduled to take place on 6 April 2016.
8. On the same day, the prosecutor issued a separate order to appear before the Caraş-Severin prosecutor’s office, for each applicant. Those documents set out the accusations brought against the applicants and the relevant provisions of the Criminal Code prohibiting those crimes and details of the criminal investigations under way, and ordered the police to take the applicants to the prosecutor’s office on 6 April 2016, for questioning in connection with those accusations. The prosecutor provided the justification that the applicants’ appearance was necessary “for the purpose of the investigation” and relied on the requirements of Article 265 §§ 2, 3 and 10 of the Code of Criminal Procedure (“the CCP”) (see paragraph 20 below). It also indicated that the order would be enforced under the provisions of Article 266 §§ 1, 3, 4, 5 and 6 of the CCP indicating the scope of the powers invested in the police officers.
9. According to the first applicant, at 8 a.m. on 6 April 2016 she received a phone call from the police asking her to meet some police officers at her office. At the same time, the second applicant was visited at her home by police officers, who showed her the order to appear and asked her to accompany them to her office. According to the Government, the applicants received telephone calls from the police in the morning of 6 April 2016 and were informed of the order to hand over documents.
10. The applicants arrived shortly afterwards at their office, as did their lawyer, I.M.P., whom they had both contacted after their respective exchanges with the police officers. The operation started at 9 a.m. Between six and eight police officers were present, along with the applicants, their lawyer and several employees from the applicants’ office. The police ordered the applicants to hand over the documents they had in their office concerning a specific insolvency case.
11. According to the applicants, the police officers informed them and I.M.P. that they were not allowed to leave the premises or to make telephone calls during the operation. I.M.P. made a statement before a notary public on 27 February 2019 attesting to the accuracy of those allegations.
12. The operation started at 9 a.m. and ended at 2 p.m. according to the official records (2.30 p.m. according to the applicants). The applicants handed over all the documents required by the police. The documents were checked, inventoried and noted in a report prepared by the police officers and signed by the applicants and their lawyer, without any objections.
13. According to the applicants (and I.M.P.’s certified statement before the notary public – see paragraph 11 above), at the end of the police operation they were taken in two separate police cars to the Bucharest police station. I.M.P. followed in his car. At the police station I.M.P. was informed that the applicants would be taken to the Caraș‑Severin prosecutor’s office in the town of Reşiţa, for questioning. With the agreement of a police officer, I.M.P. bought water and food for the applicants to have on the journey, as the distance between the two towns was approximately 500 kilometres.
14. At 3.30 p.m. the applicants and two other suspects were taken by a team of four gendarmes in a minivan to the Caraș‑Severin prosecutor’s office in Reșița, on the basis of the orders to appear issued by the prosecutor on the previous day. I.M.P. also drove to Reșița, to assist the applicants in the proceedings before the prosecutor.
15. The applicants arrived in Reşiţa after midnight on 7 April 2016. Upon their arrival, they were informed of the accusations brought against them and were interviewed in that connection, in their lawyer’s presence, first as suspects (suspect) and then as accused persons (inculpat). They were at all times accompanied/guarded by police officers and had to ask permission to use the toilet.
16. The first applicant was questioned from 12.10 a.m. to 2.30 a.m. and from 2.35 a.m. to 2.50 a.m. At 3 a.m. the prosecutor ordered her arrest for twenty‑four hours.
17. The second applicant was questioned from 3.45 a.m. to 4.30 a.m. and then again from 4.40 a.m. to 4.50 a.m. At 4.55 a.m. the prosecutor arrested her for twenty-four hours.
18. On the same day, 7 April 2016, the prosecutor sought to have the applicants and four other suspects placed in pre-trial detention. In two separate interlocutory judgments issued on the same day, the Caraş-Severin County Court ordered the applicants’ pre-trial detention for thirty days. Before the court, the applicants’ counsel complained that early the previous day the applicants had been served with orders to appear, and that they had been subjected by the police and the prosecutor to unjustified physical constraints throughout the day until their appearance before the court. He also contested the necessity of placing the applicants in pre-trial detention. The court dismissed those complaints, on the grounds that the prosecutor and the police had acted on the following grounds:
“It is noted that counsel did not in fact claim that the prosecution acts were null and void; moreover neither counsel’s allegations nor the elements of the prosecution file indicate a breach of the legislative provisions concerning the hearing of suspects or of accused, the measure of search and seizure, of arrest, the administrative procedure for bringing a person before the prosecutor, the police custody, or the rights of the defence.”
19. The applicants appealed, arguing mainly that the measure of pre-trial detention was neither lawful nor necessary in their case. On 15 April 2016 the Timișoara Court of Appeal examined in detail the decisions rendered by the County Court on 7 April 2016, including on the point concerning the alleged unlawfulness of the prosecutor’s measures against the applicants until their appearance before the court. It then examined the lawfulness and necessity of the pre-trial detention and dismissed their appeals.
RELEVANT LEGAL FRAMEWORK
20. The relevant provisions of the Code of Criminal Procedure (“the CCP”), in force since 1 February 2014, read as follows:
Article 170 – Handing over of objects, documents or electronic data
“1. If there is a reasonable suspicion that a criminal offence is being prepared or has been committed and there are grounds to believe that an object or document may serve as evidence in the case, the prosecuting authority or the court may order the person who holds them to produce them and hand them over; a written acknowledgment shall be provided.”
Article 209 – Police custody
“…
3. Police custody may be ordered for a maximum of twenty-four hours. The time strictly necessary for bringing a suspect or accused to the location of the relevant judicial body in accordance with the law shall not be included in the period of police custody.
…
5. Police custody may only be ordered after the suspect or accused has been heard, in the presence of a lawyer of his own choosing or a lawyer appointed by the court. …”
Article 265 – The order to appear
“(1) A person may be brought before a criminal investigation body or a court on the basis of an order to appear if he or she has been previously summoned but has not appeared, and if his or her questioning or presence is necessary, or if the summons could not be duly served because the recipient avoided service.
(2) A suspect (suspectul) or an accused (inculpatul) may be brought [before the authorities] on the basis of an order to appear even before being summoned if the criminal investigation body or the court considers that the measure is necessary for the purpose of determining the case.
…
(11) The person brought [before the authorities] by virtue of an order to appear shall be interviewed immediately …
(12) The person brought [before the authorities] on the basis of an order to appear shall remain at the disposal of the judicial authorities only for such time as is required to question him or her, but for no more than eight hours, except where he or she has been remanded in custody or his or her pre-trial detention has been ordered.”
THE LAW
I. JOINDER OF THE APPLICATIONS
21. Having regard to the similar subject matter of the applications, the Court decides to join them (Rule 42 § 1 of the Rules of Court) and to examine them in a single judgment.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
22. The applicants complained that they had been unlawfully deprived of their liberty from the morning of 6 April 2016 until the early hours of 7 April 2016, specifically from 8.30 a.m. to 3 a.m. in the case of the first applicant and from 8 a.m. to 4.55 a.m. in the case of the second applicant. They relied on Article 5 § 1 of the Convention, which in so far as relevant reads as follows:
“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:
…
(b) the lawful arrest or detention of a person for noncompliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; …”
A. Admissibility
1. Abuse of the right of application
(a) The parties’ submissions
23. The Government contended that the applicants had misrepresented the events of 6 and 7 April 2016 with a view to intentionally obfuscating the facts and misleading the Court into finding that the authorities had abused their power and had violated the applicants’ rights. They pointed to several pieces of evidence submitted by the applicants in relation to the criminal proceedings against them which the Government contended had been presented by the applicants in a misleading manner.
24. The applicants contested those allegations.
(b) The Court’s assessment
25. The Court makes reference to the general principles it has developed concerning the abuse of the right of application, as reiterated in Gross v. Switzerland ([GC], no. 67810/10, § 28, ECHR 2014, with further references).
26. In the present case, the Court does not discern any abuse on the part of the applicants. It considers that what the Government characterised as an abuse of the right of application by the applicants was no more than a diverging view on the facts of the case (see, mutatis mutandis, A and B v. Romania, nos. 48442/16 and 48831/16, § 94, 2 June 2020). Furthermore, the Court does not discern any inappropriate language in the applicants’ submissions.
27. It follows that the Government’s objection of abuse of the right of application should be dismissed.
2. Exhaustion of domestic remedies
(a) The parties’ submissions
28. The Government mainly pointed out that the applicants had failed to raise their complaint of unlawful detention in the appeal proceedings before the Timișoara Court of Appeal. Other means could also have been used, such as a separate complaint concerning the alleged forcible seizure of documents, or a criminal complaint against the investigators for unlawful restriction of the applicants’ liberty. The Government submitted decisions of the domestic courts whereby persons who had been acquitted of all criminal charges had received compensation for wrongful detention pending trial.
29. The applicants argued that as the police operations in their office had been presented by the authorities as the handing over of documents, they had not been able to benefit from the safeguards provided for by law where searches – in their view the real nature of the operations – were concerned, including the opportunity to note an objection on the police report about a restriction of liberty.
(b) The Court’s assessment
30. The general principles concerning exhaustion of domestic remedies have been reiterated in Navalnyy v. Russia (no. 2) (no. 43734/14, §§ 40-41, 9 April 2019).
31. In the present case, the applicants raised the issue of the alleged unlawfulness of their detention during the period under examination, namely from the morning of 6 April 2016 until the early hours of 7 April 2016, specifically from 8.30 a.m. to 3 a.m. in the case of the first applicant and from 8 a.m. to 4.55 a.m. in the case of the second applicant (see paragraphs 18 and 19 above). Notwithstanding the brevity of their complaint, the applicants offered the domestic courts the opportunity to examine the matter. Admittedly, they did not expressly pursue their complaint before the Court of Appeal which, however, examined in detail the decision rendered by the County Court, including on this point (see paragraph 19 above). Moreover, it is not apparent how these complaints, or any of the avenues suggested by the Government could have offered redress in the applicants’ situation, especially given that the Court is not convinced that the domestic authorities perceived the restriction of the applicants’ liberty in the present case as a deprivation of liberty or that they would have been prepared to examine any complaints brought by the applicants in that regard (see, mutatis mutandis, Tiba v. Romania, no. 36188/09, § 25, 13 December 2016, and Iustin Robertino Micu v. Romania, no. 41040/11, § 109, 13 January 2015). In this respect, the Court observes that the Government was not able to submit any domestic decisions proving that a redress was offered to persons in the applicants’ situation (see paragraph 28 above, in fine).
32. Consequently, in the particular circumstances of the case, the Court considers that the action taken by the applicants was sufficient for the purpose of the present complaint. It therefore dismisses the Government’s objection.
3. Other grounds of inadmissibility
33. The Court further notes that the complaint is neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The applicants
34. The applicants argued that the order to appear had been enforced at 8 a.m. on 6 April 2016 (see paragraph 9 above). From that moment they had been placed under police supervision and their liberty had effectively been restricted. They thus argued that they had been deprived of their liberty unlawfully and for a period of time exceeding that which would have been necessary for the purpose of the investigation.
35. They submitted that they had not been offered the possibility of travelling to the prosecutor’s office by their own means (for instance, by entrusting their employees with the task of handing over documents, a process which could easily have been carried out in the applicants’ absence).
36. Furthermore, they contested that by following them to the prosecutor’s office and offering them counsel, their lawyer had protracted the proceedings in any way. The authorities should have ensured a balance between the importance of conducting prompt questioning of the suspects and the importance of their right to liberty.
(b) The Government
37. The Government argued that no constraints had been placed on the applicants by the authorities from 8 a.m. to 3.30 p.m. on 6 April 2016: the police operation had not started until 9.30 a.m.; the applicants had remained free to leave during the police operation in their office, which had not been a search ordered by a judge requiring the applicants’ participation, but a mere handing over of documents; and there was insufficient evidence to establish what had happened from 2 p.m. to 3.30 p.m.
38. They further contended that the travelling time to the prosecutor’s office should not be included in the eight-hour time-limit imposed by Article 265 § 12 of the CCP, which concerned exclusively the time when the persons concerned were in the actual custody of the judicial body. In any case, their travelling time had been longer because the gendarmes had had to adjust their speed in order to allow the applicants’ lawyer to follow safely in his car.
39. The Government submitted that it had been necessary to take the applicants to the prosecutor’s office: because of their alleged participation in organised crime, the prosecutor could not have conducted the investigations in any way other than by bringing all suspects in at the same time for questioning. In addition, that procedure had been justified. It had pursued the legitimate aim of administering justice and preventing crime, and had been proportionate to that aim, bearing in mind the complexity of the steps in the criminal investigation taken on 6 April 2016. The orders to appear had been issued after careful consideration of each individual’s situation and had allowed the applicants to become acquainted with the reasons put forward by the prosecutor. The courts which reviewed the procedure had not found any faults in the manner in which the prosecutor had conducted the operations.
40. The restriction had not taken more time than was absolutely necessary in the circumstances of the case. The different end times for the two applicants were justified by the fact that both applicants had been represented by the same lawyer, who needed to be present during the whole period of questioning for both of them.
2. The Court’s assessment
41. At the outset, the Court notes that the parties disagree as to whether the applicants were deprived of their liberty from 8 a.m. to 3.30 p.m. on 6 April 2016 (see paragraphs 34 and 37 above). Therefore, it must first establish when the restriction took effect, for the purpose of Article 5 § 1 of the Convention.
(a) The period to be taken into consideration
(i) General principles
42. The Court reiterates that in proclaiming the “right to liberty”, paragraph 1 of Article 5 contemplates the physical liberty of the person. Accordingly, it is not concerned with mere restrictions on liberty of movement, which are governed by Article 2 of Protocol No. 4, with regard to persons lawfully within the territory of that State. In order to determine whether someone has been “deprived of his liberty” within the meaning of Article 5, the starting-point must be his or her specific situation and account must be taken of a whole range of factors such as the type, duration, effects and manner of implementation of the measure in question. The difference between deprivation and restriction of liberty is one of degree or intensity, and not one of nature or substance (see Ilias and Ahmed v. Hungary [GC], no. 47287/15, §§ 211‑12, 21 November 2019, and Z.A. and Others v. Russia [GC], nos. 61411/15 and 3 others, §§ 133‑34, 21 November 2019).
43. The characterisation or lack of characterisation given by a State to a factual situation cannot decisively affect the Court’s conclusion as to the existence of a deprivation of liberty (see Creangă v. Romania [GC], no. 29226/03, § 92, 23 February 2012).
(ii) Application of those principles to the facts of the case
44. The Court observes that in the morning of 6 April 2016, before 9 a.m., both applicants were contacted by the police and were requested to participate in a police operation taking place at their office (see paragraph 9 above). It is uncontested that the applicants complied with that request. It is also uncontested that at that point, the police were already aware that at the end of the operation the applicants would be escorted to the prosecutor’s office in Reşiţa, in compliance with the order to appear issued on the previous day (see paragraph 8 above).
45. These elements corroborate the applicants’ allegations that their freedom was restricted by the police officers who participated in the operation and they were not free to leave the premises during that police operation (see paragraph 11 above). Moreover, their allegations, confirmed by I.M.P.’s statement of 27 February 2019, have not been disproved by evidence from the Government. The Court thus considers it established that the applicants were under police authority during the police operation that took place in their office, that is, at the latest from 9 a.m. on 6 April 2016 (see paragraph 12 above).
46. In this connection, the Court reiterates that it has found that a restriction on a person’s liberty starts at the time when the order to appear is enforced (see Tiba, cited above, §§ 8 and 37). It thus concludes that, in the present case, the restriction of liberty started at the latest at 9 a.m. on 6 April 2016.
47. The Court further notes the Government’s admission that they cannot account for the time period between the end of the police operation in the applicants’ office and the beginning of the journey to the Caraș‑Severin prosecutor’s office (see paragraph 37 above). It reiterates that the absence of a record concerning restrictions on personal liberty must be seen as incompatible with the requirement of lawfulness and with the very purpose of Article 5 of the Convention (see, mutatis mutandis, Khalikova v. Azerbaijan, no. 42883/11, § 100, 22 October 2015, with further references).
48. The Court furthermore reiterates that the travelling time must also be included in the total calculation of the duration of the measure (see Tiba, cited above, §§ 8, 11 and 37).
49. Lastly, the Court observes that there is no contradiction between the parties’ respective positions as to whether the applicants were deprived of their liberty while they were being held for questioning in the prosecutor’s office.
50. In conclusion, in the present case, the applicants were continuously deprived of their liberty with a view to being brought before a criminal investigation body from 6 April 2016 at 9 a.m. at the latest, until 7 April 2016 at 3 a.m. (the first applicant) and at 4.55 a.m. (the second applicant). They were thus deprived of their liberty for a period of eighteen hours and almost twenty hours respectively.
(b) Whether the deprivation of liberty was compatible with Article 5 § 1 of the Convention
(i) General principles
51. Any deprivation of liberty must, in addition to falling within one of the exceptions set out in sub-paragraphs (a) to (f) of Article 5 § 1, be “lawful”. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of that law (see Ilnseher v. Germany [GC], nos. 10211/12 and 27505/14, § 135, 4 December 2018, and S., V. and A. v. Denmark [GC], nos. 35553/12 and 2 others, § 74, 22 October 2018).
52. In laying down that any deprivation of liberty must be effected “in accordance with a procedure prescribed by law”, Article 5 § 1 primarily requires any arrest or detention to have a legal basis in domestic law. However, these words do not merely refer back to domestic law. They also relate to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all Articles of the Convention. On this last point, the Court stresses that where deprivation of liberty is concerned it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic law be clearly defined and that the law itself be foreseeable in its application, so that it meets the standard of “lawfulness” set by the Convention, a standard which requires that all law be sufficiently precise to allow the person – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Khlaifia and Others v. Italy [GC], no. 16483/12, §§ 91‑92, 15 December 2016, and Del Río Prada v. Spain [GC], no. 42750/09, § 125, ECHR 2013, with further references).
53. Lastly, the Court reiterates that in order for deprivation of liberty to be considered free from arbitrariness, it does not suffice that this measure is executed in conformity with national law; it must also be necessary in the circumstances (see S., V. and A. v. Denmark, cited above, § 77).
(ii) Application of those principles to the facts of the present case
54. It remains to be ascertained whether the deprivation of liberty in the present case had a legal basis in domestic law. In this connection, the Court notes that such a measure was permitted by Article 265 of the CCP. Through the application of that provision, the applicants were deprived of their liberty for the purpose of being taken to the prosecutor’s office, for a total period of eighteen and twenty hours respectively (see paragraph 50 above). However, the Court cannot but observe that the domestic legislation limits such a restriction of liberty to eight hours (see Article 265 § 12 of the CCP, cited in paragraph 20 above). The authorities did not, however, put forward any justification as to why that time-limit was disregarded in the present case.
55. The Court accepts that, for the purpose of the investigation, it was necessary to run a large-scale operation in several locations and to take several suspects to the prosecutor’s office simultaneously for questioning (see paragraphs 7 and 39 above). However, the Government could not put forward any evidence indicating that the applicants had refused to comply with a previous summons for questioning from the prosecutor.
56. Admittedly, under Article 265 of the CCP an offender could in exceptional cases be brought before the criminal investigation bodies on the basis of an order to appear even before being summoned, if that authority considered such a measure necessary for the determination of the case, and provided reasons. However, no such reasons were provided in the present case (see paragraph 8 above). Moreover, there was no indication that the applicants, who had fully cooperated with the police in the morning of 6 April 2016, would in any way try to hinder the investigation. For instance, the prosecutor did not put forward any reasons relating to a potential risk of collusion between the applicants; in that regard, the Court notes that the applicants were transported to the prosecutor’s office in the same van (see paragraph 14 above). Moreover, as all the actions of the prosecutor took place in the presence of the applicants’ lawyer, it is undisputed that they had not been denied contact with counsel (see paragraph 15 above). Therefore, it is not apparent why the applicants could not have been allowed to travel to the prosecutor’s office by their own means (see paragraph 35 above).
57. In this context, the Court doubts whether the applicants’ deprivation of liberty and their transport to a city located almost 500 km from their home (see paragraph 13 above), escorted by police, was necessary to ensure that they gave a statement (see also, mutatis mutandis, Ghiurău v. Romania, no. 55421/10, § 87, 20 November 2012).
58. The foregoing considerations are sufficient to enable the Court to conclude that the applicants were not deprived of their liberty in accordance with a procedure prescribed by domestic law, and that the deprivation of liberty in issue was consequently incompatible with the requirements of Article 5 § 1 of the Convention.
59. There has therefore been a violation of Article 5 § 1 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
60. 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
61. The first applicant claimed 10,000 euros (EUR) in respect of non‑pecuniary damage. The second applicant claimed EUR 15,000 in respect of non-pecuniary damage.
62. The Government submitted that the amounts claimed by the applicants were excessive and unsubstantiated.
63. The Court considers that the applicants must have sustained non‑pecuniary damage which cannot be compensated for solely by the finding of a violation. Having regard to the nature of the violation found, and making its assessment on an equitable basis, the Court awards each applicant EUR 10,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.
B. Costs and expenses
64. The first applicant claimed EUR 1,700 in respect of costs and expenses, representing postal costs (EUR 200) and the lawyer’s fee (EUR 1,500). The second applicant requested EUR 1,286 in respect of costs and expenses, representing translation fees (EUR 217), the lawyer’s fee (EUR 1,000) and postal costs (EUR 69). The second applicant appended invoices in support of her claims.
65. The Government argued that the first applicant’s claim was unsubstantiated. As for the second applicant’s claim, they asked the Court to limit any award in respect of the lawyer’s fee to what was necessary and relevant to the present case.
66. 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, the Court dismisses the first applicant’s claim under this head but considers it reasonable to award the second applicant the sum of EUR 1,286 covering the costs for the proceedings before the Court, plus any tax that may be chargeable to the second applicant.
C. Default interest
67. 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. Decides to join the applications;
2. Declares the applications admissible;
3. Holds that there has been a violation of Article 5 § 1 of the Convention;
4. Holds
(a) that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 10,000 (ten thousand euros), to each applicant, plus any tax that may be chargeable, in respect of non‑pecuniary damage;
(ii) EUR 1,286 (one thousand two hundred and eighty-six euros), to the second applicant, plus any tax that may be chargeable to her, in respect of 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;
5. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 8 June 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Ilse Freiwirth Gabriele Kucsko-Stadlmayer
Deputy Registrar President
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