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Human Rights Laws EU (in part)

12th May 2013 | in

Carabulea v. Rumunsko

2.  The Court’s assessment

164.  The Court reiterates that Article 13 of the Convention guarantees the availability, at the national level, of a remedy to enforce the substance of Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision.
165.  However, the scope of the State’s obligation under Article 13 varies depending on the nature of the applicant’s complaint, and in certain situations the Convention requires a particular remedy to be provided. Thus, in cases of suspicious death or ill-treatment, given the fundamental importance of the rights protected by Articles 2 and 3, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the acts of ill-treatment (seeAnguelova v. Bulgaria, no. 38361/97, §§ 161-162, ECHR 2002‑IV; Assenov and Others v. Bulgaria, cited above, §§ 114 et seq.; and Süheyla Aydın v. Turkey, no. 25660/94, § 208, 24 May 2005).
The Court further reiterates that the requirements of Article 13 are broader than a Contracting State’s obligation under Article 2 to conduct an effective investigation (see Orhan v. Turkey, no. 25656/94, § 384, 18 June 2002; and Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, § 183, 24 February 2005).
166.  On the basis of the evidence adduced in the present case, the Court has found that the State authorities were responsible for MrCarabulea’s death while in police custody. The applicant’s complaints to the domestic authorities in this regard were based on the same evidence and were therefore “arguable” for the purposes of Article 13 (see Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131). The authorities thus had an obligation to carry out an effective investigation into his allegations against the police officers.
For the reasons set out above (see paragraphs 132-138 above) no effective criminal investigation can be considered to have been carried out in accordance with Article 13 (see mutatis mutandis, Buldan v. Turkey, no. 28298/95, § 105, 20 April 2004; Tanrıkulu v. Turkey, cited above, § 119, and Tekdağ, no. 27699/95, § 98, 15 January 2004).
Moreover, the Court has already found in similar cases that any other remedies, including a claim for damages, are theoretical and illusory, and not capable of affording redress to the applicant (Cobzaru v. Romania, no. 48254/99, § 83, 26 July 2007, and Rupa v. Romania (no. 1), no. 58478/00, §§ 189-91, 16 December 2008).
The Government have not put forward any additional fact or argument capable of persuading it to reach a different conclusion in the presentcase.
167.  The Court finds that the applicant has been denied an effective remedy in respect of the death of his brother and has thereby been denied access to any other available remedies at his disposal, including a claim for compensation.
Consequently, it dismisses the Government’s preliminary objection and concludes that there has been a violation of Article 13 of the Convention.

Alebo:

Esmukhambetov v. Rusko
Application in the present case

160.  In the present case, the Government insisted that a variety of effective remedies had been available to the applicants at domestic level. In particular, they pointed to the fact that, in accordance with Presidential Decree no. 898 of 5 September 1995, the first three applicants had received compensation in court proceedings for their relatives’ deaths. They also argued that the applicants had been free to lodge a civil action, under Articles 1067 and 1069 of the Russian Civil Code, for compensation for the damage inflicted on their homes and property, and/or to obtain extra-judicial compensation on that account as provided for in Governmental Decrees nos. 510 and 404 dated 30 April 1997 and 4 July 2003 respectively.
(a)  Article 13 taken in conjunction with Article 2

161.  The Court does not find the Government’s arguments convincing. In particular, in so far as the Government relied on the judgment of the Nogayskiy District Court of 18 March 2005, as upheld by the Supreme Court of the Republic of Dagestan on 13 July 2005, by which the first three applicants were awarded compensation for the deaths of their family members (see paragraphs 70-71 above), it does not consider that this remedy can be regarded as effective for the purpose of Article 13 taken in conjunction with Article 2 of the Convention, despite its positive outcome for the first three applicants in the form of a financial award. That award was based on Presidential Decree no. 898 of 5 September 1995, which provided for a lump-sum payment of a fixed amount to relatives of each individual killed as a result of the hostilities in the ChechenRepublic, without distinguishing between deaths inflicted by private individuals and those caused by State agents (see paragraph 86 above). When awarding compensation, the District Court clearly stated that its payment was not dependent on the establishment of a causal link between the damage caused and the State’s actions. It is therefore clear that the proceedings in question were incapable of making any meaningful findings as to the perpetrators of the fatal assault, and still less to establish their responsibility (see, in a similar context, Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, § 121, 24 February 2005).
162.  The Court further notes that, as it has held on many occasions, in circumstances where, as in the present case, the criminal investigation into the deaths was ineffective and the effectiveness of any other remedy that may have existed was consequently undermined, the State has failed in its obligation under Article 13 of the Convention. Consequently, there has been a violation of Article 13 of the Convention in respect of the aforementioned violations of Article 2 of the Convention concerning the deaths of the first, second, third, thirteenth and twenty-second applicants’ family members.

(b)  Article 13 taken in conjunction with Article 8 and Article 1 of Protocol No. 1

163.  As regards all applicants’ complaint under Article 13 in connection with Article 8 of the Convention and Article 1 of Protocol No. 1, the Court considers, in the light of the principles restated in paragraph 159 above, that the only potentially effective domestic remedy in the circumstances would be an adequate criminal investigation. In this connection it refers to its above finding regarding the ineffectiveness of the investigation into the deaths of the five residents of Kogi (Runnoye). The Court finds that this is also true as regards the investigation into the destruction of the applicants’ homes and property, given that all those offences were investigated within the same set of criminal proceedings.
164.  It further considers that, similarly to its finding made in paragraph 162 above as regards the existence of effective domestic remedies in respect of the applicants’ complaints under Article 2 of the Convention, in the absence of any meaningful results of the investigation into the destruction of their housing and property, their civil claim for damages on that account would hardly have had any prospects of success. Indeed, Article 1069 of the Russian Civil Code, which establishes the rules on compensation for damage inflicted by representatives of the State and which would have been applicable if the applicants had brought civil proceedings as suggested by the Government, provides that State agents are only liable for damage caused by their unlawful actions or failure to act (see paragraph 84 above). In the circumstances of the present case, where, as mentioned by the Government, the investigation into the attack ended with a decision of 23 September 2005 stating that the federal servicemen’s actions had been justified, the applicants’ civil claim for damages would have been doomed to failure. In support of this finding, the Court also refers to the practice of the Russian courts, which have consistently refused to award any compensation for damage caused by the federal forces during the conflict in the Chechen Republic, stating, in particular, that the latter’s actions had been lawful as the counter-terrorist operation in the region had been launched under relevant presidential and governmental decrees which had not been found to be unconstitutional (see paragraphs 89-91 above). With this in mind, the Court rejects the Government’s argument that it was open to the applicants to file a civil claim for compensation in respect of their lost housing and property, as the right in question was illusory and devoid of substance. In sum, the Court finds the remedy under examination inadequate and ineffective, given that it was clearly incapable of leading to the identification and punishment of those responsible, or even to any financial award in the circumstances of the present case.
165.  As regards the Government’s argument that the applicants could have received extra-judicial compensation for their lost property, the Court notes firstly that Governmental Decree no. 510 of 30 April 1997, referred to by the Government, concerns the payment of compensation in respect of property that had been destroyed before 12 December 1994 (see paragraph 87 above), and is therefore clearly irrelevant in the present case. It is also doubtful that Governmental Decree no. 404 of 4 July 2003, which afforded the right to compensation to permanent residents of the Chechen Republic (see paragraph 88 above), can be applied in the applicants’ situation, given that after the attack most of them permanently left the region (see paragraph 27 above). In any event, even assuming that the applicants are entitled to extra-judicial compensation under this latter decree as suggested by the Government, it is clear from the relevant legal instrument that the compensation in question is paid without regard to the particular circumstances in which the property was lost, that is to say, irrespective of whether State agents were responsible for the destruction. Moreover, the value of the lost property is not taken into account either, since the overall amount paid for lost housing and other possessions cannot exceed RUB 350,000 (approximately EUR 9,000). In such circumstances, the Court is not persuaded that the compensation referred to by the Government can be regarded as an effective remedy for the violation alleged.
166.  In the light of the foregoing considerations, the Court dismisses the Government’s objection in so far as it concerns the applicants’alleged failure to exhaust the available domestic remedies in respect of their complaints under Article 8 of the Convention and Article 1 of Protocol No. 1 and finds that the applicants had no effective domestic remedies in respect of the alleged violation of their rights secured by the aforementioned Convention provisions. Accordingly, there has been a violation of Article 13 of the Convention on that account.
(c)  Article 13 taken in conjunction with Article 3

167.  Lastly, having regard to its conclusions in paragraphs 162 and 166 above, the Court finds that the applicants had no effective remedies as regards their complaint under Article 3 of the Convention, and therefore the Government’s objection on that account should be dismissed. It considers, however, that the applicants’ complaint under Article 13 taken in conjunction with Article 3 of the Convention does not raise a separate issue in the circumstances of the present case, and therefore there is no need to examine it.

—————————————————————article 3

Article 3 (the case law concerning substantive violation)

The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see Labita v. Italy, no. 26772/95, § 119, ECHR 2000-IV).
101.  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 is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. Although the purpose of such treatment is a factor to be taken into account, in particular the question of whether it was intended to humiliate or debase the victim, the absence of any such purpose does not inevitably lead to a finding that there has been no violation of Article 3 (see Peers v. Greece, no. 28524/95, §§ 68 and 74, ECHR 2001-III, and Grori v. Albania, no. 25336/04, § 125, with further references).
102.  Treatment of a person by State agents has been considered to raise an issue under Article 3 when it resulted in bodily harm of a certain degree of severity, such as an injury to a person’s leg which caused necrosis and subsequently led to the leg having to be amputated, a gunshot wound to a person’s knee, a double fracture of the jaw and facial contusions or an injury to a person’s face which required stitches, with three of the person’s teeth being knocked out (see Sambor v. Poland, no. 15579/05, § 36, 1 February 2011; Necdet Bulut v. Turkey, no. 77092/01, § 24, 20 November 2007; Rehbock v. Slovenia, no. 29462/95, §§ 76-77, ECHR 2000‑XII; and Mrozowski v. Poland, no. 9258/04, § 28, 12 May 2009). The Court has further considered the treatment of a person to be capable of raising an issue under Article 3 when, inter alia, it was such as to drive the victim to act against his or her will or conscience (see, for example, Keenan v. the United Kingdom, no. 27229/95, § 110, ECHR 2001-III).
103.  In several cases the Court has examined complaints about alleged ill-treatment in the context of medical interventions to which detained persons were subjected against their will. It has held, inter alia, that a measure which is of therapeutic necessity from the point of view of established principles of medicine cannot in principle be regarded as inhuman and degrading. The Court has nevertheless taken the view that it must satisfy itself that a medical necessity has been convincingly shown to exist and that procedural guarantees for the decision exist and are complied with (for a recapitulation of the relevant case-law see Jalloh v. Germany [GC], no. 54810/00, § 69, ECHR 2006‑IX, with further references).
104.  In order for treatment to be “inhuman” or “degrading”, the suffering or humiliation involved must in any event go beyond the inevitable element of suffering or humiliation connected with a given form of legitimate treatment (see Labita, cited above, § 120).
105.  Finally, the Court reiterates that the very essence of the Convention is respect for human dignity and human freedom. It has held that in the sphere of medical assistance, even where the refusal to accept a particular treatment might lead to a fatal outcome, the imposition of medical treatment without the consent of a mentally competent adult patient would interfere with his or her right to physical integrity (see Pretty v. the United Kingdom, no. 2346/02, §§ 63 and 65, ECHR 2002‑III; Glass v. the United Kingdom, no. 61827/00, §§ 82-83, ECHR 2004‑II; and Jehovah’s Witnesses of Moscow v. Russia, no. 302/02, § 135, ECHR 2010‑...).

Article 3 (the case law concerning procedural violation)

Articles 1 and 3 of the Convention impose positive obligations on the Contracting Parties, designed to prevent and provide redress for various forms of ill-treatment. In particular, in a similar manner to cases raising an issue under Article 2 of the Convention, there is a requirement to conduct an effective official investigation (see, for example, Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998‑VIII, and Biçici v. Turkey, no. 30357/05, § 39, 27 May 2010, with further references).
124.  The investigation in such cases must be thorough and expeditious. However, the failure of any given investigation to produce conclusions does not, by itself, mean that it was ineffective: an obligation to investigate “is not an obligation of result, but of means” (see Mikheyev v. Russia, no. 77617/01, §§ 107-109, 26 January 2006, with further references).
125.  In cases raising issues under Article 2 of the Convention in the context of alleged medical malpractice the Court has held that where the infringement of the right to life or to personal integrity is not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case. In the specific sphere of medical negligence the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained (see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002‑I; Vo v. France [GC], no. 53924/00, §§ 90, ECHR 2004‑VIII; and Byrzykowski v. Poland, no. 11562/05, § 105, 27 June 2006).

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