Case of Valentino Acatrinei v. Romania
Case of Valentino Acatrinei v. Romania
Case of Valentino Acatrinei v. Romania
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THIRD SECTION
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JUDGMENT
STRASBOURG
25 June 2013
FINAL
25/09/2013
This judgment has become final under Article 44 2 of the Convention. It may be
subject to editorial revision.
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PROCEDURE
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THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
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6. The applicant was born in 1947 and lives in Bucharest. At the relevant
time, he was a judge inspector at the Bucharest Court of Appeal.
7. On 11 September 2000 the Romanian Intelligence Service (the RIS)
informed the Anti-Corruption Department of the Prosecutors Office
attached to the Supreme Court of Justice (the prosecutor) that the lawyer
L.P. (the applicant in case no. 25333/03) had given bribes to several judges,
including the applicant, in order to obtain decisions favourable to her
clients. It based the accusation on information obtained through intercepting
L.P.s telephone, measure taken because one of her clients was suspected of
crimes against national security. The surveillance activity was carried out
under the National Security Act (Law no. 51/1991). The RIS handed the
audio tapes and their transcripts over to the prosecutors office. The
prosecutor then continued the surveillance of the applicants activities,
including through telephone tapping. Several conversations between L.P.
and the applicant, concerning cases of L.P.s clients, were recorded between
7 and 14 June 2000.
8. On 22 March 2001 the prosecutor obtained the Ministry of Justices
approval to start criminal investigations in respect of the judges involved
that is the applicant and R.F. On 4 May 2001 he started criminal
proceedings against the applicant (nceperea urmririi penale).
9. On 7 May 2001 the prosecutor invited the applicant to his office,
informed him of the accusations against him and arrested him.
10. Under Law no. 92/1992 on the organisation of justice, the applicant
was suspended from his post from 7 May 2001.
11. On 21 May 2001 the applicant was released pending trial.
12. Throughout the proceedings, the applicant denied having committed
the crimes.
13. On 12 December 2001 the prosecutor indicted the applicant for
trading in influence (trafic de influen), for aiding and abetting to give
bribes (complicitate la darea de mit) and for favouring the commission of
crimes, and committed him and several other persons to trial. In particular,
the prosecutor accused him of accepting money from L.P. on several
occasions in order to convince the judges who were deciding on the cases
concerning L.P.s clients to release them pending trial and of acting upon
his promises by trying to persuade some of those judges to release L.P.s
clients.
14. The case was heard by the Criminal Division of the Supreme Court
of Justice.
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prosecutors report, as the law required); nor did the original hard-disk onto
which the recording had been done. In his report, the prosecutor attested to
the authenticity of the recordings and proved that the procedure in place for
the telephone tapping had been respected. The court confirmed those
aspects. The defendants had had ample opportunity to challenge it, as
provided for by the CCP.
Moreover, the court observed that the original recording had been digital,
done straight onto the hard-disk of the equipment used by the RIS for
telephone tapping; the tapes attached to the prosecutors report were
consequently copies of the original recordings. Because of its nature and
purpose, the hard-disk could not be attached to the prosecutors report;
furthermore, it did not need to be attached as it did not constitute evidence.
The court concluded that the absence of the hard-disk did not automatically
disqualify the transcripts from being used as evidence.
Furthermore, the court noted that, for obvious reasons related to respect
for the private life of those involved, it had not listened to all the
conversations recorded by the RIS, but only to those relevant to the charges
brought before it. However, the parts presented to it and to the defendants
by the prosecutor represented full conversations. The dialogues were
coherent; the sentences were not truncated and no words were missing or
had been inserted into the dialogues. It observed that neither the experts nor
the parties had claimed that the content of the conversations heard in court
had been falsified.
30. The court was therefore satisfied that the prosecutors report on the
telephone tapping and its transcripts qualified as lawful evidence for
admission to the case file.
31. All parties appealed against the judgment. In particular, the applicant
complained that the Supreme Court had failed to allow the parties to discuss
the new classification of the crimes; that the indictment did not comply with
the legal requirements as it had not been confirmed by the Prosecutor
General, which rendered it null and void; that the investigation had started
before the necessary approvals had been sought; that the telephone tapping
had been illegal and that the court had refused to send a constitutional
complaint raised by the applicant about that evidence to the Constitutional
Court; that the judgment had not been signed by the dissenting judge; and
that the operative part of the decision did not correspond to the one
delivered in public. He lastly complained about the courts interpretation of
the evidence in the file, in particular that the audio tapes had been taken into
account despite the expert opinion, and considered that the sentence was too
harsh.
32. The case was heard by a nine-judge bench of the Supreme Court
who rendered the final decision on 8 October 2003. The Supreme Court
gave a detailed answer to all arguments raised by the defence concerning
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both the procedural and the substantive aspects of the case before the
prosecutor and the first-instance court.
33. Answering to an appeal argument raised by R.F., the Supreme Court
ruled that the prosecutor had been right not to withdraw from the case after
having called the defendants offenders, as the incriminated remarks had
been uttered in the course of debates, where prosecutor and defendants were
in positions of equality and had been provoked by defence counsels
offensive statements concerning a witness.
34. The Supreme Court noted that the telephone tapping had not
observed the stricter requirements relating to magistrates. It was
nevertheless satisfied that such requirements were not relevant in the case
because the magistrates had not been targeted by the initial measure of
telephone tapping; on this point it reiterated that the information concerning
the magistrates alleged involvement had been obtained incidentally by the
prosecutor. It observed that for the procedural acts concerning the
magistrates the prosecutor had obtained all the necessary authorisations.
The court also reiterated that as the tapes had disclosed information on the
commission of crimes, they could not have been ignored by the authorities.
Furthermore, the tapes had been made with the prosecutors prior approval,
as the law had required at the time, and had not contravened public order.
The Supreme Court attached great importance to the fact that the defendants
had not denied having had the recorded conversations. It also noted that the
information obtained through the telephone tapping had been confirmed by
the evidence in the file. It therefore concluded that the tapes could be used
as evidence.
The Supreme Court also decided that the evidence had to be interpreted
in its entirety and in context, and reiterated that the law did not give
precedence to any type of evidence to the detriment of others.
35. It therefore concluded that the evidence in the file was sufficient and
that the first-instance court had correctly interpreted the facts based on the
elements at its disposal.
36. The Supreme Court noted that the first-instance court had changed
the legal classification of the crimes committed by L.P. from a continuous
crime of giving bribe to several individual crimes of giving bribes and of the
crimes committed by the applicant from a continuous crime of trading in
influence and aiding and abetting L.P. to give bribes to several individual
crimes of trading in influence and aiding and abetting L.P. to give bribes. It
accepted that the first-instance court had erred in not allowing the parties to
discuss the new legal classification of the crimes. However, it noted that
such a failure did not trigger the nullity of the judgment and that in fact
there had not been any risk of the defendants being disadvantaged by the
new classification as the consequences in law for both situations were
identical.
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It noted nevertheless that the conviction for one of the crimes committed
by the applicant had been pardoned. However, the final sentence remained
the same.
37. On 13 October 2003 the applicant started serving his sentence.
38. On 15 December 2004, while the applicant was still in prison, the
President of Romania granted individual pardon to several people, including
the applicant, by means of Presidential Decree no. 1164 issued under
Article 94 (d) of the Constitution and published the next day in the Official
Monitor.
39. On 16 December 2004 the applicant was released from prison.
40. The Presidents decision was widely criticised in the press, as one of
the persons who benefitted from the pardon was M.C. who had been
convicted of crimes against national security and was serving a sixteen-year
and six-month sentence for his role in the miners riots in Bucharest in
1991.
41. As a consequence of the protests, on 17 December 2004 the
president revoked the pardon, by means of Decree no. 1173, and the
applicant was incarcerated again on 18 December 2004.
42. On 20 December 2004 the applicant objected to his renewed
detention.
43. In a decision of 20 April 2005, after several remittals of the case, the
Bucharest County Court found that the applicants detention was illegal, on
the grounds that the individual pardon had been unconditional and that once
Decree no. 1164/2004 had been enforced, it was no longer revocable. The
court took account of the requirements of Articles 5 and 13 of the
Convention.
On 5 May 2005 the Bucharest Court of Appeal upheld the reasoning of
the County Court and ordered, in addition, that the applicant be released
promptly. The decision became final on 6 October 2005, before the High
Court of Cassation and Justice.
44. On 6 May 2005 the applicant was released from prison.
45. He then lodged a civil claim against the State for illegal detention for
the period from 18 December 2004 to 6 May 2005. He sought
1,400,000 euros (EUR) in damages.
46. On 2 June 2006 the Bucharest County Court noted that the
applicants detention had been declared illegal and granted him
EUR 100,000 in respect of non-pecuniary damage. All parties appealed and
in a final decision of 20 September 2007 the High Court of Cassation and
Justice set the amount of compensation in respect of non-pecuniary damage
at EUR 10,000 and awarded it to the applicant.
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3. The report of execution of any preliminary investigation measure shall constitute
evidence.
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Article 228 1
Opening of the criminal proceedings (urmrirea penal)
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THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
50. Relying in substance on Article 8 of the Convention, the applicant
complained that the telephone interceptions had been illegal. Article 8 of the
Convention reads as follows:
1. Everyone has the right to respect for his private and family life, his home and
his correspondence.
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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.
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A. Admissibility
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51. The Government averred that the applicant could not pretend to be
the victim of a violation of the Article 8 rights, in so far as the authorities
had not intercepted his telephone, but that of L.P. Furthermore, they argued
that as the main aim of Article 8 was to protect individuals against arbitrary
interference, this Article is not applicable to the facts of the current case
because the interference had not been arbitrary, in so far as the measure had
been approved by the court.
52. The applicant contested that argument.
53. The Court reiterates that Article 8 applies irrespective of whether the
surveillance was carried out on a device belonging to the applicant or to a
third party (see, notably, Lambert v. France, 24 August 1998, 20-21,
Reports of Judgments and Decisions 1998-V; and Uzun v. Germany,
no. 35623/05, 49, ECHR 2010 (extracts)). Moreover, telephone
conversations between L.P. and the applicant were intercepted during the
operation and were used in the criminal proceedings (see paragraphs 7
in fine and 16 above). The point whether the interference was arbitrary or
not is a matter to be determined on the merits of the complaint.
The Governments pleas are therefore unsubstantiated.
54. The Court also notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 3 (a) of the Convention. It further
observes that it is not inadmissible on any other grounds. It must therefore
be declared admissible.
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B. Merits
1. The parties submissions
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55. The applicant argued that the content of the telephone conversations
had damaged his private life and reiterated that despite them not being
authentic and original, the recordings had been used in the criminal trial
against him thus further infringing his right to respect for his private life.
56. The Government contested that the telephone tapping constituted
interference with the applicants rights. Even assuming that such
interference occurred, they argued that it was done in accordance with the
law, the National Security Act. Relying on Klass and Others v. Germany
(6 September 1978, 49, Series A no. 28), they stated that the Court had
accepted that national security concerns could justify, in exceptional
circumstances, measures of secret surveillance. Furthermore, the measure
was authorised by the prosecutor and the applicant had the possibility to
have the tapes thus obtained examined by an expert.
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57. The Court observes at the outset that telephone conversations are
covered by the notions of private life and correspondence within the
meaning of Article 8 (see, among other authorities Craxi v. Italy (no. 2),
no. 25337/94, 57, 17 July 2003 and Drakas v. Lithuania, no. 36662/04,
52, 31 July 2012). It also notes that in the present case the conversations
between the applicant and L.P. were recorded in June 2000 under a mandate
given to the RIS by the prosecutor under the National Security Act
(see paragraph 7 in fine above).
58. The Court further reiterates that it has already examined whether the
system in place in Romania for telephone tapping on grounds of national
security complied with the requirements of Article 8 of the Convention
(see Dumitru Popescu, cited above, as well as Calmanovici v. Romania,
no. 42250/02, 120-26, 1 July 2008). It has ruled that the system lacked
proper safeguards and thus breached the requirements of Article 8, in so far
as the prosecutor authorising the surveillance was not independent from the
executive (see Dumitru Popescu, cited above, 71); a prosecutors decision
to intercept communications was not subject to judicial review before being
carried out (idem, 72); a person affected by the surveillance could not
challenge before a court the merits of the interception (idem, 74); and that
there was no mention in the law of the circumstances in which the
transcripts could be destroyed (idem, 79).
59. The Court notes that the facts of the present case are similar to the
ones examined in Dumitru Popescu and the same laws are applicable to
them. It also observes that in the case under examination the applicants
obtained an experts opinion on the authenticity and originality of the tapes
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62. The applicant complained that the criminal proceedings against him
had not been fair. He relied on Article 6 1 and 3 of the Convention which
reads as follows, in so far as relevant:
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1. In the determination of ... any criminal charge against him, everyone is entitled
to a fair ... hearing ... by [a] ... tribunal ...
3. Everyone charged with a criminal offence has the following minimum rights:
...
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(d) to examine or have examined witnesses against him and to obtain the attendance
and examination of witnesses on his behalf under the same conditions as witnesses
against him; ...
A. Admissibility
63. The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 3 (a) 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 parties arguments
64. The applicant argued, mainly, that the prosecutor had not followed
the procedure for indicting him, claiming both the non-observance of the
formal requirements for the indictment act and the absence of the necessary
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approvals from the Ministry of Justice; that the evidence obtained through
telephone tapping had been illegal, in so far as it had been gathered before
the commencement of the criminal proceedings and without the proper
procedures being observed; that the witnesses and L.P. had been coerced by
the prosecutor into testifying against him; that the accusations against him
were unfounded; and that the operative part of the first-instance judgment
had been falsified. He also complained that the first-instance court had
changed the legal classification of the alleged crimes without allowing the
parties to discuss the new situation. Lastly he put forward that the courts
had made an erroneous interpretation of the evidence in the file.
65. The Government contended that the proceedings against the
applicant, seen as a whole, had been fair. They put forward that the
applicant had had the possibility to present his arguments, to adduce
evidence and to challenge the evidence brought by the prosecution. They
argued that the telephone interceptions had been authorised by the
prosecutor according to the law; that the defendants had not contested
having had the conversations or their content; and that in any case the
recordings had not constituted the only evidence against the defendants.
They also pointed out that the applicant had suffered no consequence from
the change of the legal classification of the crimes operated by the court.
Furthermore, the domestic courts had given answers to all the claims
brought by the applicant before the Court.
2. The Courts assessment
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66. At the outset, the Court points out that the guarantees enshrined in
paragraph 3 of Article 6 represent specific applications of the general
principle stated in paragraph 1 of that Article and for this reason it will
examine them together (see, among many others, Deweer v. Belgium,
27 February 1980, 56, Series A no. 35; Doorson v. the Netherlands,
26 March 1996, 66, Reports 1996-II; and Artico v. Italy, 13 May 1980,
32, Series A no. 37).
67. According to the Courts case-law, for the purposes of Article 6, the
charge could be defined as the official notification given to an individual
by the competent authority of an allegation that he has committed a criminal
offence or where the situation of the [suspect] has been substantially
affected (see Deweer, cited above, 46).
68. The Court further reiterates that it is not competent to deal with an
application alleging that errors of law or fact have been committed by
domestic courts, except where it considers that such errors might have
involved a possible violation of any of the rights and freedoms set out in the
Convention (see Bykov v. Russia [GC], no. 4378/02, 88, 10 March 2009).
Moreover, it is not its role to examine the legislation in abstracto, but to
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72. The Court notes that the complaint raised by the applicant is
manifold. It will examine the main arguments in the following paragraphs.
(i). the transcripts of the telephone conversations
73. The Court observes that pursuant to the relevant provisions of the
Code of Criminal Procedure, the domestic courts accepted as evidence in
the case file the prosecutors report concerning the telephone conversations
between the defendants recorded during the preliminary investigation. The
defendants argued that the tapes had been unlawfully obtained and that they
had been proven not to be authentic and original.
74. The domestic courts responded extensively to the arguments
concerning the impact of the contested evidence raised by the defendants
(see paragraph 29 above).
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75. The Court observes that the applicant freely engaged in the
incriminatory conversations (see Bykov, cited above, 102). Moreover, both
the applicant and the defence counsels availed themselves of numerous
opportunities to question the validity of that evidence, and the courts gave
thorough answers to their objections. It is to be noted that the applicant did
not question the reality of the conversations recorded or the authenticity of
their content. The domestic courts also insisted on that point when they
examined the experts opinion disputing the authenticity and originality of
the tapes (see paragraph 29 above and Dumitru Popescu, cited above,
109).
76. The Court further reiterates that the evidence does not have a
pre-determined role in the respondent States criminal procedure. The courts
are free to interpret it in the context of the case and in the light of all the
elements before them (see Dumitru Popescu, cited above, 110). In the
case at hand, the recording was not treated by the courts as a plain
confession or an admission of knowledge capable of lying at the core of a
finding of guilt (see Bykov, cited above, 103); it played a limited role in a
complex body of evidence assessed by the court.
77. Having examined the safeguards surrounding the analysis of the
admissibility and reliability of the evidence concerned, the nature and
degree of the alleged compulsion, and the use to which the material
obtained through telephone tapping at the preliminary investigation stage
was put by the courts in the current case, the Court considers that the use of
transcripts in the trial did not breach the rights of the defence.
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78. It is to be noted that L.P. lodged the same complaint with the Court
which declared it inadmissible in a decision of 15 September 2009. The
Court observed that the court of last resort had addressed the issue of
reclassification and had concluded that it had concerned only the sentence
and not the legal classification of the facts themselves and that the
defendants had had the opportunity to contest the facts attributed to them
(see Peter v. Romania (dec.), no. 25333/03, 80, 15 September 2009 and
paragraph 7 above). The Court further notes that the parties arguments
regarding the new classification were fully taken into account in the appeal
proceedings.
79. The Court reiterates that the circumstances of the present case differ
essentially from those examined in Constantinescu v. Romania
(no. 28871/95, ECHR 2000-VIII), where the Court concluded that there had
been a violation of Article 6 in so far as the applicant was convicted for the
first time by the court of last resort, without being heard by that court about
the new classification given to the crimes.
80. For these reasons, the Court sees no reason to depart in the present
case from its findings in the decision Peter, cited above. Therefore it
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81. The applicant further raised under Article 6 of the Convention most
of the arguments he had advanced in the domestic appeals.
82. The Court observes that the Supreme Court answered those pleas in
great detail in a well-reasoned decision (see paragraphs 32 and following,
above). The domestic courts paid particular attention to the manner in which
the stricter procedural requirements for the investigation of magistrates had
been observed by the prosecutor and gave sufficient reasons why they
considered the proceeding to have been adequate (see paragraph 34 above
and, mutatis mutandis, Kudeshkina v. Russia, no. 29492/05, 97,
26 February 2009, and Oleksandr Volkov v. Ukraine, no. 21722/11, 136,
9 January 2013).
83. The Court sees no reason to contradict the domestic courts findings
in the matter and does not detect any grave procedural omissions in the
proceedings carried out against the magistrates, including thus the applicant.
(iv). conclusion
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84. The Court is satisfied that the domestic courts based their decisions
on an important body of evidence: they heard testimony from several
witnesses for the prosecution and for the defence, and took the opportunity
to study the conflicting positions and to explain them in the context of the
case.
85. For these reasons, the Court finds that the proceedings in the
applicants case, considered as a whole, were not contrary to the
requirements of a fair trial.
It follows that there has been no violation of Article 6 1 and 3 (d) of
the Convention.
III. ALLEGED VIOLATION
CONVENTION
OF
ARTICLE
OF
THE
86. The applicant further complained of the fact that the prosecutor I.K.
had infringed the presumption of his innocence when, during the hearing
that took place on 27 February 2002, she had called the defendants
offenders. He pointed out that I.K. had continued to represent the
prosecutors office throughout the proceedings. He relied on Article 6 2 of
the Convention.
87. The Government contested the arguments put forward by the
applicant.
88. The Court notes that L.P. lodged the same complaint with the Court
which declared it inadmissible in a decision of 15 September 2009 whereby
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the Court observed that the statements by the prosecutor had been made
during the debates, while a witness was being interrogated, and not
independently from the court proceedings and therefore could not constitute
a breach of the presumption of the applicants innocence (see Peter (dec.),
72, cited above and paragraph 7 above).
89. In addition, the Court notes that the applicant complained about the
prosecutors statements and the court examined his arguments
(see paragraph 22 above). The mere fact that his objection was dismissed by
the domestic courts is not sufficient to render the applicants claims
admissible under Article 6 of the Convention.
90. For these reasons, the Court sees no reason to depart in the present
case from its findings in the decision Peter, cited above. It follows that this
complaint is manifestly ill-founded and must be rejected in accordance with
Article 35 3 (a) and 4 of the Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
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A. Damage
94. The applicant claimed EUR 173,906 in respect of pecuniary damage,
having as basis the salary of a judge that he could no longer perceive after
his suspension from post in May 2001.
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C. Default interest
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98. 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.
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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 25 June 2013, pursuant to
Rule 77 2 and 3 of the Rules of Court.
Josep Casadevall
President
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Santiago Quesada
Registrar