[New search]
[Contents list]
[Context]
[View without highlighting]
[Printable RTF version]
[Help]
FOURTH
SECTION
CASE OF JAKÓBSKI v. POLAND
(Application
no. 18429/06)
JUDGMENT
STRASBOURG
7 December
2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Jakóbski v.
Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
Ján
Šikuta,
Mihai Poalelungi,
Nebojša
Vučinić,
Vincent Anthony de Gaetano,
judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 16 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 18429/06) against the Republic
of Poland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Polish national, Mr Janusz Jakóbski
(“the applicant”), on 27 April 2006.
- The
applicant, who had been granted legal aid, was represented by
Mr B. Sochański, a lawyer practising in Szczecin. The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wolasiewicz of the Ministry of Foreign Affairs.
- The
applicant alleged under Article 9 of the Convention that he had been
refused a meat-free diet in prison contrary to the requirements of
his faith.
- On
1 September 2008 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1965 and is currently detained in Nowogród
Prison.
- Since
20 June 2003 the applicant has been serving an eight-year prison
sentence imposed by the Poznan Regional Court following his
conviction for rape.
- He
was previously held in Goleniów Prison. On several occasions
he requested to be served meat-free meals on account of his religious
dietary requirements. He submitted that he was a Buddhist and that he
adhered strictly to the Mahayana Buddhist dietary rules which
required refraining from eating meat.
- On
19 January 2006 the prison dermatologist recommended that the
applicant be placed on a meat-free diet in view of his health
problems. For three months he was granted a “no pork”
diet (PK diet) that included very little meat and was also applied to
six Muslims detained in the Goleniów Prison.
- On
20 April 2006 a doctor who examined the applicant considered that
there were no medical grounds to continue granting the PK diet to the
applicant. Consequently, the diet was discontinued. The applicant
objected and threatened to go on a hunger strike.
- On
27 April 2006 the applicant asked the District Prosecutor to
institute criminal proceedings against the employees of Goleniów
Prison. The applicant claimed that despite having requested on
several occasions to be provided with a meat-free diet, he was
receiving meals containing meat products. Since he could not eat meat
for religious reasons he depended on food parcels from his family. He
was forced to accept the meals and then throw them away. The refusal
to accept them would have been regarded as a decision to start a
hunger strike and would have entailed disciplinary punishment. On 13
June 2006 the Goleniów District Prosecutor discontinued the
criminal proceedings in respect of the applicant's allegations.
- On
3 July 2006 the Buddhist Mission in Poland sent a letter to the
prison authorities supporting the applicant's request for a meat-free
diet. They submitted that the Mahayana Buddhists had a serious moral
problem when they were forced to eat meat. According to the rules, a
Mahayana Buddhist should avoid eating meat to cultivate compassion
for all living beings. They further asked the authorities simply to
eliminate meat products from the applicant's meals.
- On
17 July 2006 the applicant requested the Director of Goleniów
Prison to be served meat-free meals in view of his religious dietary
requirements. He noted that the PK diet contained meat products and
therefore it did not satisfy his needs. The applicant's request was
refused on 16 October 2006. That decision did not contain any
reasons.
- On
21 August 2006 and 31 August 2006 the applicant asked the Goleniów
District Prosecutor to institute criminal proceedings against the
prison guards. He alleged that there had been an interference with
his religious convictions, in particular as the guards had referred
to the Buddhist Mission in Poland as “a sect”. They had
also thrown religious publications belonging to the applicant into a
toilet. On 19 August 2006, after receiving a family visit, he
was ordered to undergo a body search. The applicant took off his
clothes except for his underwear, whereupon the prison guard
allegedly touched his private parts. He was further ordered to squat
and other prison guards ridiculed him.
- On
29 October 2006 the Goleniów District Prosecutor refused to
institute criminal proceedings against the persons concerned. It
considered that the applicant's allegations were unfounded. The
applicant was entitled to exchange correspondence with the Buddhist
Mission in Poland and he could also telephone them. In addition, he
was entitled to a diet that roughly corresponded to his religious
requirements. However, the prosecutor stressed that as the applicant
was kept in a single cell, there were no witnesses to the alleged
ill-treatment by the prison officers and it was impossible to
establish whether the events described by the applicant had actually
taken place.
- On
13 October 2006 the District Court dismissed the applicant's
interlocutory appeal against the decision of 13 June 2006. The court
held that the applicant, when refusing to accept meals containing
meat, had referred to his alleged vegetarianism. The court considered
that there was no information in the prison files showing that the
applicant was a vegetarian, and in addition for 3 months he had
agreed to the PK diet even though it was not a completely meat-free
diet.
- On
14 November 2006 in reply to the applicant's further complaints, the
Szczecin Regional Prisons Inspector informed the applicant that the
only special diet available in Goleniów Prison was the “PK”
diet. That diet, with the exception of pork, consisted of various
meat products, namely beef and poultry, as well as fish. A meat-free
diet was not available in that prison.
- On
20 November 2006 the Szczecin Prisons Inspector, in reply to yet
another complaint from the applicant, again confirmed that the only
special diet which took into account religious beliefs was the PK
diet. In addition, he explained:
“A convict has a right to change religion while
serving a prison sentence and to profit from freedom of religion if
he/she feels like that. However, this does not mean that the prison
authorities are obliged to provide an individual with special food in
order to meet the specific requirements of his faith. The question of
food related to religion or cultural background should not lead
convicts to manipulate the prison authorities in order to secure
personal advantages.”
- On
14 December 2006 the Goleniów District Court dismissed the
applicant's interlocutory appeal against the decision of 29 September
2006.
- On
25 June 2007 the Buddhist Mission in Poland again sent a letter to
the Director of Goleniów Prison asking him to provide the
applicant with a meat-free diet.
- In
a complaint lodged with the Szczecin Regional Court on 3 September
2007 the applicant argued that the diet he had been granted in
Goleniów Prison did not take into account his religious
beliefs.
- On
3 December 2007 the Regional Court dismissed the applicant's
complaint. The court held that the applicant had been granted a
special diet since 18 July 2006. It further noted that given the
technical conditions in the prison kitchen, the transporting of meals
and understaffing in the kitchen, it was not possible to provide each
prisoner individually with food in conformity with his or her
religious dietary requirements. The court also confirmed that meals
without pork were prepared.
- In
March 2009 the applicant was transferred to Nowogród Prison.
On 2 May 2009 he applied to be served meat-free meals in view of his
religious dietary requirements. The applicant's request was refused
on 13 May 2009.
- On
12 August 2009 in reply to the applicant's complaint, the Ombudsman
informed him that the prison authorities had not been obliged to
prepare special meals taking into consideration different dietary
requirements. In addition, since the applicant was the only Buddhist
in this prison, it would have put too much strain on the prison
authorities.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Code of Execution of Criminal Sentences
- The situation of prisoners and persons detained on
remand is governed by the Code of Execution of Criminal Sentences of
6 June 1997.
Under Article 109 of that Code, prisoners should receive meals taking
into consideration their employment, age and where possible religious
and cultural beliefs. On the basis of that Article the
Minister of Justice issued the Ordinance of 22 September 2003 on
the rules to be followed by the relevant authorities when determining
daily meals and different diets to be allowed to persons detained in
prisons (Rozporzadzenie Ministra
Sprawiedliwosci w sprawie okreslenia wartosci dziennej normy
wyzywienia oraz rodzaju diet wydawanych osobom osadzonym w zakladach
karnych I aresztach sledczych).
The ordinance refers to two types of special diet – a “light
diet” (dieta lekkostrawna)
and a “diet for diabetics” (dieta
cukrzycowa).
B. Civil-law remedies
- Article 23 of the Civil Code contains a non-exhaustive
list of so called “personal rights” (prawa
osobiste). This provision states:
“The personal rights of an individual, such as, in
particular, health, liberty, honour, freedom of conscience, name or
pseudonym, image, secrecy of correspondence, inviolability of the
home, scientific or artistic work, [as well as] inventions and
improvements, shall be protected by the civil law regardless of the
protection laid down in other legal provisions.”
Article
24, paragraph 1, of the Civil Code provides:
“A person whose personal rights are at risk [of
infringement] by a third party may seek an injunction, unless the
activity [complained of] is not unlawful. In the event of
infringement [the person concerned] may also require the party who
caused the infringement to take the necessary steps to remove the
consequences of the infringement ... In compliance with the
principles of this Code [the person concerned] may also seek
pecuniary compensation or may ask the court to award an adequate sum
for the benefit of a specific public interest.”
Article
445 § 1 of the Civil Code, applicable in the event that a person
suffers a bodily injury or a health disorder as a result of an
unlawful act or omission of a State agent, reads as follows:
“...The court may award to the injured person an
adequate sum in pecuniary compensation for the damage suffered.”
Under
Article 448 of the Civil Code, a person whose personal rights have
been infringed may seek compensation. That provision, in its relevant
part, reads:
“The court may grant an adequate sum as pecuniary
compensation for non-material damage (krzywda) suffered to
anyone whose personal rights have been infringed. Alternatively, the
person concerned, regardless of whether he or she seeks any other
relief that may be necessary for removing the consequences of the
infringement sustained, may ask the court to award an adequate sum
for the benefit of a specific public interest.”
C. European Prison Rules
- A Recommendation of the Committee of Ministers to
member states on the European Prison Rules (Rec(2006)2) (“the
European Prison Rules”), adopted on 11 January 2006, sets out
the following standards in respect of diet in prison that may be
relevant in the context of the present case.
Rule 22 reads:
“1. Prisoners shall be provided with a nutritious
diet that takes into account their age, health, physical condition,
religion, culture and the nature of their work.
2. The requirements of a nutritious diet, including its
minimum energy and protein content, shall be prescribed in national
law.
3. Food shall be prepared and served hygienically.
4. There shall be three meals a day with reasonable
intervals between them.
5. Clean drinking water shall be available to prisoners
at all times.
6. The medical practitioner or a qualified nurse shall
order a change in diet for a particular prisoner when it is needed on
medical grounds. “
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION
- The
applicant complained that the prison authorities, by refusing to
provide him with a meat-free diet in accordance with his religious
precepts, had infringed his right to manifest his religion through
observance of the rules of the Buddhist religion, as protected by
Article 9 of the Convention, which reads as follows:
“1. Everyone has the right to freedom
of thought, conscience and religion; this right includes freedom to
change his religion or belief and freedom, either alone or in
community with others and in public or private, to manifest his
religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or
beliefs shall be subject only to such limitations as are prescribed
by law and are necessary in a democratic society in the interests of
public safety, for the protection of public order, health or morals,
or for the protection of the rights and freedoms of others.”
- The
Government contested that argument.
A. Admissibility
- The
Government argued that the applicant could have, but had not, made
use of the remedies of a compensatory nature governed by the
provisions of Articles 23 and 24 of the Civil Code, in conjunction
with Article 445 or Article 448 of the Civil Code, in order to bring
an action for compensation for incarceration in conditions that were
not in conformity with his religious beliefs. In their opinion, a
person deprived of his or her liberty and who suffered a violation of
his or her personal rights as a result of the authorities' failure to
provide food in conformity with religious beliefs was entitled to
bring a civil action against the State Treasury. The Government did
not refer to any examples of judicial practice in this connection.
- The
applicant replied that this remedy could not be considered adequate
and effective and in his case lacked prospects of success. In
particular, the applicant referred to the fact that the prison
authorities had informed him that it was not possible to prepare
vegetarian meals in prison because it would have put too much strain
on the authorities.
- The
Court reiterates that the rule of exhaustion of domestic remedies
contained in Article 35 § 1 of the Convention requires that
normal recourse should be had by an applicant to remedies which are
available and sufficient to afford redress in respect of the breaches
alleged. 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
(see, among other authorities, Orchowski v. Poland,
no. 17885/04, § 105, ECHR 2009 ... (extracts); Norbert
Sikorski v. Poland, no. 17599/05, § 108, 22 October 2009).
- The Court firstly observes that under Article 448 of
the Civil Code no claim for damages may arise unless the infringement
alleged resulted from an unlawful act or omission. The refusal to
provide the applicant with the special diet was at all times lawful
having regard to the terms of Article 109 of the Code of Execution of
Criminal Sentences (see paragraph 24 above). Consequently, in the
circumstances of the present case, an action under Article 445 or
Article 448 of the Civil Code could not have offered the applicant
reasonable prospects of securing a diet in accordance with his
religious requirements. The Court would further add that the
applicant was not seeking compensation but the provision of meals
which took account of his religious convictions. The Government have
not established that the provisions of the Civil Code relied on would
have afforded the relief sought. In addition, the Court observes that
the Government have not alluded to any decisions of the domestic
courts indicating that individuals detained in inadequate conditions
have succeeded in obtaining an improvement of the status quo (see
also Orchowski cited above § 108, 109; Latak v. Poland
(dec.), no.52070/08, § 79, 12 October 2010) It follows that the
Government's objection must be rejected.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The applicant's submissions
- The
applicant submitted that under Article 9 of the Convention the State
was obliged to respect and support the individual's freedom to
practice his or her religion. Any limitations could be set only in
the interest of public safety, for the protection of public order,
health or morals, or for the protection of the rights and freedoms of
others. In the applicant's opinion observing vegetarianism could not
be described as a threat to public safety, health, morals or the
rights and freedoms of others.
- The
applicant further stressed that Buddhism was a path of life in which
the individual was supposed to recognise himself and develop
self awareness. A Buddhist was supposed to improve his spiritual
life. He referred to the Third Secondary Precept of Shakyamuni Buddha
(in the holy book of Brahmajala Sutra) according to which:
“A disciple of the Buddha must not deliberately
eat meat. He should not eat the flesh of any sentient being. The
meat-eater forfeits the seed of Great Compassion ... Those who do so
are guilty of countless offences.”
- Lastly,
the applicant maintained that Buddha was a teacher who gave
suggestions and directions but never orders. He noted that if a
Buddhist did not follow those directions he stopped on his path of
self-development and resisted Buddha's teaching.
2. The Government's submissions.
- The
Government observed that in principle they did not contest that
religious precepts relating to a diet might be considered an
essential aspect of the practice of one's religion and as such
covered by the right to manifest one's religion within the meaning of
Article 9 of the Convention.
- They
noted, referring to the Great Polish Encyclopaedia (Wielka
Encyklopedia PWN, vol. 4, Warsaw 2001, p. 544), that Buddhism
generally did not prohibit eating meat and vegetarianism was not
required nor did it constitute an element of the Buddhist religion.
They further submitted, relying on Wikipedia
(http://en.wikipedia.org/wiki/Buddhist_cuisine), that even the
strict Mahayana school to which the applicant declared his adherence
only encouraged vegetarianism and did not prescribe it. For these
reasons only some Mahayana Buddhists were vegetarians.
- They
submitted that in the particular circumstances of the present case,
vegetarianism could not be considered an essential aspect of the
practice of the applicant's religion - in particular since the
applicant had agreed to the PK diet and had asked for it to be
continued.
- The
Government further observed that in any event the requirements laid
down in the second paragraph of Article 9 of the Convention were met.
In particular, under Article 109 § 1 of the Code of Execution of
Criminal Sentences it was not obligatory to grant a special diet in
accordance with a prisoner's religious beliefs. However, they
agreed that in a situation where it was possible for a custodial
institution to provide for a special diet it should have granted such
a diet to the prisoner.
- The
Government concluded that to accept that there was an obligation on
the State authorities to provide each detainee with special food in
accordance with his or her beliefs would be too rigorous and would
entail too many difficulties of a technical and financial nature. In
their opinion, the diet that the applicant had been granted roughly
corresponded to his religious requirements. Since there were nearly
1,200 detainees in Goleniów Prison, the preparation of special
meals for only one person would have placed an excessive burden on
the prison authorities.
3. The Court's assessment
(a) Applicability of Article 9 of the
Convention
- The
Court must first consider whether the applicant can rely on Article 9
of the Convention.
- The
applicant submitted that the refusal to provide him with a meat free
diet in prison in accordance with his religious precepts infringed
his right to manifest his religion through observance of the rules of
the Buddhist religion. The Government argued that in the present
case, vegetarianism could not be considered an essential aspect of
the practice of the applicant's religion, since the strict Mahayana
school to which the applicant claimed to adhere only encouraged
vegetarianism but did not prescribe it.
- The
Court notes that Article 9 of the
Convention lists the various forms which manifestation of one's
religion or belief may take, namely worship, teaching, practice and
observance (see, mutatis mutandis, Cha'are Shalom Ve Tsedek
v. France [GC], no. 27417/95, § 73, ECHR 2000-VII). It does
not protect every act motivated or inspired by a religion or belief
(see, Leyla Şahin v. Turkey [GC], no. 44774/98, §
78, ECHR 2005 XI). The freedom of thought, conscience and
religion denotes views that attain a certain level of cogency,
seriousness, cohesion and importance (see Leela Förderkreis
e.V. and Others v. Germany, no. 58911/00, § 80, 6
November 2008). In addition, the State's duty of neutrality and
impartiality, as defined in the Court's case-law, is incompatible
with any power on the State's part to assess the legitimacy of
religious beliefs (see Leyla Sahin, cited above, § 107).
- The
Court also notes that Buddhism is one of the world's major religions
officially recognised in numerous countries. In addition, it has
already held that observing dietary rules can be considered a direct
expression of beliefs in practice in the sense of Article 9 (see
Cha'are Shalom Ve Tsedek, cited above, §§ 73
and 74). In the present case the applicant requested to be
provided with a meat-free diet because as a practising Buddhist he
wished to avoid eating meat. Without deciding whether such decisions
are taken in every case to fulfil a religious duty (see Leyla
Şahin, cited above, § 78), as there may be situations
where they are taken for reasons other than religious ones, in the
present case the Court considers that the applicant's decision to
adhere to a vegetarian diet can be regarded as motivated or inspired
by a religion and was not unreasonable. Consequently, the refusal of
the prison authorities to provide him with a vegetarian diet
falls within the scope of Article 9 of the Convention.
(b) The question of interference
- The Court observes that the applicant submitted that
the refusal to provide him with meat-free meals amounted to an
interference with his rights guaranteed by Article 9 of the
Convention. However, the Court is of the view that the circumstances
of the applicant's case and in particular the nature of his complaint
are more appropriately examined from the standpoint of the respondent
State's positive obligations.
- In
this respect the Court reiterates that whether the case is analysed
in terms of a positive duty on the State to take reasonable and
appropriate measures to secure the applicant's rights under paragraph
1 of Article 9 or in terms of an interference by a public authority
to be justified in accordance with paragraph 2, the applicable
principles are broadly similar. In both contexts regard must be had
to the fair balance that has to be struck between the competing
interests of the individual and of the community as a whole; and in
both contexts the State enjoys a certain margin of appreciation in
determining the steps to be taken to ensure compliance with the
Convention. Furthermore, even in relation to the positive obligations
flowing from the first paragraph of Article 9, in striking the
required balance the aims mentioned in the second paragraph may be of
a certain relevance (see, mutatis mutandis, Hatton and
Others v. the United Kingdom [GC], no. 36022/97, §
98, ECHR 2003 VIII).
(c) Compliance with Article 9 of the
Convention
- The
Court firstly notes that at least since 2006, first in Goleniów
Prison and subsequently in Nowogród Prison, the applicant has
repeatedly requested a meat-free diet. The authorities refused his
requests in particular on the ground that preparation of meat-free
meals for one person would have been too expensive (extra costs of
hygiene requirements) and would have placed an excessive burden on
the prison's kitchen staff (see paragraphs 7, 20, and 21 above).
49 . The Court further notes that for some time the
applicant was granted a PK diet, a diet that contained no pork and
included very little meat. However, the applicant argued that this
diet had not corresponded entirely to his religious requirements (see
paragraph 12 above).
- The
Court observes that according to the second paragraph of Article 9 of
the Convention restrictions are permitted, inter alia, for the
protection of public health or morals or for the protection of the
rights and freedoms of others. Whilst the Court is prepared to accept
that a decision to make special arrangements for one prisoner within
the system can have financial implications for the custodial
institution and thus indirectly on the quality of treatment of other
inmates, it must consider whether the State can be said to have
struck a fair balance between the interests of the institution, other
prisoners and the particular interests of the applicant.
- In
order to justify the food regulations in prison, the Government
referred to Article 109 of the Code of Execution of Criminal
Sentences and the Ordinances of the Minister of Justice according to
which it was not obligatory to serve a special diet in accordance
with one's religious beliefs under Polish law. They also noted that
providing each detainee with special food in accordance with his or
her beliefs would have entailed too many difficulties of a technical
and financial nature (see, paragraph 40 above).
- According
to the applicant's religion he was supposed to have a simple
meat-free diet. He merely asked to be granted a vegetarian diet,
excluding meat products (see paragraph 12 above). The Court notes
that his meals did not have to be prepared, cooked and served in a
prescribed manner, nor did he require any special products (see,
mutatis mutandis, D and E.S. v. United Kingdom,
no. 13669/88, Commission decision of 7 March 1990, Decisions and
Reports (DR) 65, p. 245; X v. United Kingdom, no. 5947/72,
Commission decision of 5 March 1976, Decisions and Reports
(DR) 5, p. 8). Unlike in the latter case, he was not offered any
alternative diet, nor was the Buddhist Mission consulted on the issue
of the appropriate diet. The Court is not persuaded that the
provision of a vegetarian diet to the applicant would have
entailed any disruption to the management of the prison or to any
decline in the standards of meals served to other prisoners.
- In this respect the Court points out that the
recommendation of the Committee of Ministers to the member States,
namely Recommendation (Rec 92006)2) on the European Prison Rules (see
paragraph 26 above) recommend that prisoners should be provided with
food that takes into account their religion (see paragraphs 26
above). In recent judgments the Court has drawn the authorities'
attention to the importance of this recommendation, notwithstanding
its non-binding nature (see Sławomir Musiał v.
Poland, no. 28300/06, § 96, ECHR 2009 ... (extracts)).
- Having regard to all the foregoing factors, and
despite the margin of appreciation left to the respondent State, the
Court finds that the authorities failed to strike a fair balance
between the interests of the prison authorities and those of the
applicant, namely the right to manifest his religion through
observance of the rules of the Buddhist religion.
- The
Court concludes that there has been a breach of Article 9 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION IN
CONJUNCTION WITH ARTICLE 9 OF THE CONVENTION
- The
applicant complained under Article 14 in conjunction with Article 9
that he was discriminated against since other religious groups in
prison were allowed a special diet.
Article
14 of the Convention provides as follows:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
- The
Court reiterates that Article 14 has no independent existence, but
plays an important role by complementing the other provisions of the
Convention and its Protocols, since it protects individuals placed in
similar situations from any discrimination in the enjoyment of the
rights set forth in those other provisions. Where a substantive
Article of the Convention or its Protocols has been relied on both on
its own and in conjunction with Article 14 and a separate breach
has been found of the substantive Article, it is not generally
necessary for the Court to consider the case under Article 14 also,
though the position is otherwise if a clear inequality of treatment
in the enjoyment of the right in question is a fundamental aspect of
the case (see Chassagnou and Others v. France [GC], nos.
25088/94, 28331/95 and 28443/95, § 89, ECHR 1999-III, and
Dudgeon, cited above, § 67).
- In
the circumstances of the present case the Court considers that the
inequality of treatment, of which the applicant claimed to be a
victim, has been sufficiently taken into account in the above
assessment that led to the finding of a violation of a substantive
Convention provision. It follows that there is no cause for a
separate examination of the same facts from the standpoint of Article
14 of the Convention (see Metropolitan Church of Bessarabia and
Others v. Moldova, no. 45701/99, § 134, ECHR 2001 XII,
and Sidiropoulos and Others v. Greece, 10 July 1998, §
52, Reports of Judgments and Decisions 1998 IV).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicant claimed 5,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government objected to the amount of compensation requested and
maintained that it was groundless and unsubstantiated.
- The
Court awards the applicant EUR 3,000 in respect of non pecuniary
damage.
B. Costs and expenses
- The
applicant also claimed EUR 1,037 (EUR 850 in legal aid plus EUR 187
VAT) for the costs and expenses incurred before the Court.
- The
Government did not express an opinion on this point.
- 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. The Court notes that the
applicant was paid EUR 850 in legal aid by the Council of Europe. In
the present case, regard being had to the information in its
possession and the above criteria, the Court considers it reasonable
to award the sum of EUR 1,037 for the proceedings before it, less the
amount received by way of legal aid from the Council of Europe. The
Court thus awards EUR 187 for costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Declares the application admissible;
- Holds that there has been a violation of Article
9 of the Convention;
- Holds that there is no need to examine
separately the complaint under Article 14 in conjunction with Article
9 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,000
(three thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, and EUR 187 (one hundred and
eighty-seven euros) in respect of costs and expenses, to be converted
into Polish zlotys at the rate applicable at the date of settlement;
(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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 7 December 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President