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FOURTH SECTION CASE OF MARDOSAI v. LITHUANIA (Application no. 42434/15) JUDGMENT STRASBOURG 11 July 2017 FINAL 11/10/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Mardosai v. Lithuania, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Ganna Yudkivska, President,Paulo Pinto de Albuquerque,Faris Vehabović,Egidijus Kūris,Iulia Motoc,Georges Ravarani,Péter Paczolay, judges,and Marialena Tsirli, Section Registrar, Having deliberated in private on 6 June 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 42434/15) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Lithuanian nationals, Ms Vaida Mardosienė (“the first applicant”) and Mr Vygandas Mardosas (“the second applicant”), on 21 August 2015. 2. The applicants were represented by Ms S. Mardosaitė, a lawyer practising in Vilnius. The Lithuanian Government (“the Government”) were represented by their Agent, Ms K. Bubnytė. 3. The applicants complained under Article 2 of the Convention regarding the effectiveness of the criminal investigation into the alleged medical negligence which had led to their newborn daughter’s death. 4. On 25 May 2016 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The first and second applicants were born in 1981 and 1971 respectively and live in Jurbarkas. They are wife and husband. A. Death of the applicants’ newborn daughter 6. On 15 May 2009 the first applicant, who was nine months pregnant and already past her due date, was admitted to the obstetrics and gynaecology ward of Jurbarkas Hospital. 7. On the morning of 20 May 2009 she was given medication in order to induce labour, but the medication was subsequently discontinued and she was given sedatives. In the late afternoon her waters broke. The doctors noticed that the heartbeat of the foetus was weak and decided to perform a Caesarean section. Following the surgery, the first applicant gave birth to a daughter. The newborn baby was in a serious condition, so she was taken to a hospital in Kaunas for intensive care. 8. On 22 May 2009 the baby died. The applicants decided not to have an autopsy performed on her body – according to them, they were informed by doctors that an autopsy was not necessary. The Government contested this and submitted that the applicants had been informed that an autopsy had been necessary but refused it nonetheless. 9. Following the baby’s death, Jurbarkas Hospital conducted an internal inquiry into the medical services provided to the first applicant. The inquiry report, issued on 16 June 2009, found that some erroneous entries had been made in the first applicant’s medical file, the assessment of her and the baby’s condition had probably been inadequate, and certain actions to resuscitate the baby had been taken too late. 10. At the applicants’ request, the Ministry of Healthcare also conducted an inquiry into the medical services provided to them at Jurbarkas Hospital. A provisional report, issued on 22 June 2009, found that the first applicant’s labour had not been induced in compliance with the relevant rules, the condition of the foetus had not been properly monitored, there had been shortcomings in the resuscitation of the baby, and one of the doctors (R.B.) had not been properly qualified to provide obstetric services. The report issued a series of recommendations to the hospital, and also suggested that the State Inspectorate for Medical Inquiries conduct a more in-depth inspection of the medical services at Jurbarkas Hospital. 11. The State Inspectorate for Medical Inquiries issued its report on 26 August 2009, in which it identified several shortcomings in the work of doctors who had provided care to the first applicant, and concluded that the medical services had been inadequate. 12. Subsequently, doctor R.B. was dismissed from Jurbarkas Hospital, and the hospital stopped providing obstetric services, citing a lack of qualified medical personnel. V.K., a gynaecologist, and three other doctors were officially reprimanded for having provided inadequate medical services to the first applicant and V.K. was later dismissed at her own request. B. Criminal proceedings 1. Pre-trial investigation 13. On 22 June 2009 the applicants asked the Jurbarkas district prosecutor (hereinafter “the prosecutor”) to open a pre-trial investigation into the medical negligence at Jurbarkas Hospital which had led to their newborn daughter’s death. The pre-trial investigation was opened on the same day and carried out by the Jurbarkas police. In July and August 2009 the applicants were interviewed and granted victim status in the investigation. 14. On 7 August 2009 a court-appointed doctor delivered a specialist opinion (specialisto išvada) that the applicants’ daughter’s death had resulted from asphyxia during birth and meconium aspiration syndrome. 15. In August and September 2009 the police interviewed the doctors who had provided medical services to the first applicant, and obtained various documents from Jurbarkas Hospital. 16. In September 2009 the applicants asked the prosecutor to exhume their daughter’s body so that an autopsy could be performed and the cause of her death could be more precisely determined. However, the prosecutor denied their request, relying on an opinion from medical experts that performing an autopsy more than three months after the baby’s death would not give any results because of the significant post-mortem changes to the body during that time. 17. In October 2009 the police asked four court-appointed doctors for a specialist opinion on the causes of the baby’s death and the actions of the doctors at Jurbarkas Hospital. The applicants also submitted questions and their questions were forwarded to the specialists. The opinion, delivered on 5 May 2010, stated that no causal link between the doctors’ actions and the death could be established, and that it was not possible to determine whether the death could have been avoided because an autopsy of the body had not been performed. Subsequently, the applicants asked the police to order another opinion from specialists, and they submitted additional questions. On 10 February 2011 three other court-appointed doctors provided answers to the applicants’ questions. Their overall conclusions were the same as those of the previous specialists. 18. On 4 March 2011 the prosecutor discontinued the pre‑trial investigation on the grounds that no causal link between the actions of the doctors at Jurbarkas Hospital and the baby’s death had been established. On 24 March 2011 a senior prosecutor upheld that decision, but on 2 May 2011 the Jurbarkas District Court upheld a complaint submitted by the applicants and reopened the pre-trial investigation. The court found that the two specialist opinions (see paragraph 17 above) had not answered some of the questions submitted because certain medical data had not been made available. It also found that the investigation had not established why an autopsy had not been performed (see paragraph 8 above). Therefore, the court ordered the prosecutor to ask additional questions of some of the witnesses and order a comprehensive forensic examination. 19. On 2 June 2011 the prosecutor asked the court to order a forensic examination of the causes of the baby’s death and the causal link between the doctors’ actions and the death. The applicants submitted a list of additional questions to be forwarded to the forensic expert. On 27 June 2011 the Jurbarkas District Court ordered the examination, but that order included only the prosecutor’s questions and did not provide any reasons as to why the applicants’ questions had not been included. The applicants appealed against it, but on 14 October 2011 the Kaunas Regional Court dismissed their appeal on the grounds that deciding which questions to forward to the expert was the lower court’s prerogative. 20. On 25 October 2011 the applicants again submitted their questions to the prosecutor and asked for an additional forensic examination. On 5 December 2011 the Jurbarkas District Court ordered an additional forensic examination, and that order included the applicants’ questions. However, the court’s order was only forwarded to the forensic expert on 5 February 2013. 21. On 29 January 2013 a court-appointed forensic expert delivered the answers to the prosecutor’s questions (see paragraph 19 above). The expert found that the cause of the baby’s death had been determined correctly, the medical services provided to the first applicant had been adequate, and there was no causal link between the doctors’ actions and the death. 22. On 13 February 2013 the applicants submitted a complaint to the Prosecutor General, stating that the pre-trial investigation was being conducted inefficiently and with undue delays. They complained, in particular, that the court’s decision of 5 December 2011 to order an additional forensic examination (see paragraph 20 above) had not been forwarded to the expert until 5 February 2013, one year and two months after it had been issued. The Prosecutor General’s Office conducted an official inquiry, which on 18 June 2013 concluded that Jurbarkas prosecutors had committed disciplinary violations, and that the pre-trial investigation had not been properly conducted and supervised. The inquiry found that the Jurbarkas district prosecutor’s office had been reorganised in 2012, which was the likely reason for the above-mentioned shortcomings. No individuals were penalised. 23. On 25 June 2013 a court-appointed forensic expert delivered the answers to the applicants’ questions (see paragraph 20 above). Among other things, the expert found that some of the doctors’ actions had not been in line with the relevant requirements, but there was no direct causal link between their actions and the applicants’ daughter’s death. 24. On 5 July 2013 the prosecutor discontinued the investigation on the grounds that no causal link between the actions of the doctors at Jurbarkas Hospital and the applicants’ daughter’s death had been established (see paragraphs 17, 21 and 23 above). The applicants appealed against that decision, and on 4 November 2013 a senior prosecutor reopened the pre‑trial investigation and assigned it to a different police department. The senior prosecutor considered that, following the decision to discontinue the investigation, new relevant circumstances had emerged, although he did not specify what those circumstances were. 25. On 28 February 2014 V.K., the gynaecologist, was served with a notice that, under Article 229 of the Criminal Code, she was suspected of having failed to perform her official duties (see paragraph 37 below). On 8 April 2014 the case was referred to the Jurbarkas District Court for examination on the merits. 2. Court proceedings 26. On 28 April 2014 the Jurbarkas District Court held an oral hearing. V.K. was not present and her lawyer informed the court that she had been admitted to hospital, although no medical certificate was submitted. The court adjourned the case until 12 May 2014. 27. On 12 May 2014 V.K. was again not present, and the court received a medical certificate confirming her hospitalisation until 14 May 2014. The court decided to adjourn the case and proposed three alternative dates: 13 May, 16 May and 19 May 2014. V.K.’s lawyer stated that V.K. would not be well enough by 13 May, and that on the later dates he would be unable to represent her. The court adjourned the case until 25 June 2014. 28. On 23 June 2014 the applicants applied to the court to reclassify the charges against V.K. as negligent homicide in violation of special conduct security rules under Article 132 § 3 of the Criminal Code (see paragraph 38 below). The court adjourned the case until 14 July 2014 in order to give the accused enough time to acquaint herself with the case file. 29. On 14 July 2014 the Jurbarkas District Court terminated the case on the basis that it was time-barred. It held that V.K. had been charged with a crime of negligence, and the five-year statutory limitation period had ended on 21 May 2014 (see paragraphs 8 above and 39 below). The court also dismissed the application to reclassify the charges and noted that, in any event, reclassification would not alter the statutory limitation period. 30. The applicants appealed against that judgment. They submitted that, in line with the Criminal Code, the statutory limitation period must have been suspended while the examination of the case had been adjourned owing to V.K.’s illness (see paragraph 40 below). 31. On 6 November 2014 the Kaunas Regional Court dismissed the applicants’ appeal and upheld the judgment of the first-instance court. It firstly held that the legal provision cited by the applicants had been adopted after the alleged offence had been committed, and that at the time the alleged offence had been committed domestic law had not provided for suspension of the statutory limitation period during the adjournment of a case (see paragraphs 39-40 below). The court further held that, in any event, the examination of the case had been adjourned for an important reason ‑ V.K.’s hospitalisation – so there were no grounds for suspending the statutory limitation period. 32. On 24 February 2015 the Supreme Court refused to examine a cassation appeal lodged by the applicants, on the grounds that it did not raise any important legal questions. C. Civil proceedings 33. The Government in their observations informed the Court that on 15 September 2011 the applicants instituted civil proceedings against Jurbarkas Hospital, claiming compensation in respect of pecuniary and non‑pecuniary damage caused by inadequate medical services provided to the first applicant and their newborn daughter. They revised their claim in December 2011 and August 2013. The applicants claimed a total of 600,000 Lithuanian litai (LTL – approximately 173,770 euros (EUR)) in respect of non-pecuniary damage and a total of LTL 16,295 (approximately EUR 4,720) in respect of pecuniary damage, consisting of funeral expenses and the second applicant’s lost earnings during his time off work after their daughter’s death. 34. On 26 November 2014 the Kaunas Regional Court granted the applicants’ claim in part. Relying on the available inquiry reports, as well as the specialist opinions and results of the forensic examinations delivered in the criminal proceedings (see paragraphs 9, 10, 11, 17, 21 and 23 above), the court held that the doctors at Jurbarkas Hospital had breached their duty of care and that their actions “had contributed” (turėjo įtakos) to the death of the applicants’ daughter, so there were grounds for the hospital incurring civil liability. However, the court considered that the doctors’ actions had not been premeditated or grossly negligent, so the applicants’ claim in respect of non-pecuniary damage was granted in part, and they were awarded a total of LTL 80,000 (approximately EUR 23,170) under that head. They were also awarded a total of LTL 6,716 (approximately EUR 1,945) in respect of pecuniary damage, on the basis of the documents in the court’s possession. 35. The applicants and the hospital appealed against that judgment, but on 17 September 2015 the Court of Appeal upheld the lower court’s findings. The hospital transferred the awarded amount to the applicants’ bank accounts in November and December 2015. II. RELEVANT DOMESTIC LAW 36. Article 19 of the Constitution of the Republic of Lithuania reads: “The right to life of a human being shall be protected by law.” 37. At the material time, Article 229 of the Criminal Code provided: Article 229. Failure to perform official duties “A civil servant or a person equivalent thereto who, by negligence, has failed to perform or has inadequately performed his or her official duties and has thereby caused major damage to the State, an individual or a legal entity, shall be punished by deprivation of the right to have a certain occupation or to engage in a certain type of activity, or a fine, or detention, or imprisonment for a term of up to two years.” 38. Article 132 § 3 of the Criminal Code provides: Article 132. Causing death by negligence “... 3. Anyone who has [negligently caused the death of another person] by violating special conduct security rules shall be punished by imprisonment for a term of up to eight years.” 39. The relevant parts of Article 95 of the Criminal Code, in force from April 2003 until June 2010, provided: Article 95. Statute of limitations for conviction “1. A person who has committed a criminal offence cannot be convicted if: 1) the following period has lapsed: ... b) five years, in the case of a crime of negligence or a minor premeditated crime; ... 2) during the period laid down in sub-paragraph 1, the person did not evade the pre‑trial investigation or the trial and did not commit a new criminal offence ...” 40. In June 2010 a new version of Article 95 of the Criminal Code was passed, the relevant parts of which provide: Article 95. Statute of limitations for conviction “1. A person who has committed a criminal offence cannot be convicted if: 1) the following period has lapsed: ... b) eight years, in the case of a crime of negligence or a minor premeditated crime; ... 2) during the period laid down in sub-paragraph 1, that person did not evade the pre‑trial investigation or the trial and did not commit a new premeditated criminal offence ... 5. During the examination of a case before a court, the statute of limitations is suspended for the period during which: 1) the court adjourns the examination of the case because of the absence of the accused or his or her counsel; 2) the court adjourns the examination of the case until a forensic examination requested by the court or a specialist investigation has been carried out, or until a legal assistance request sent to another State has been executed; 3) the court adjourns the examination of the case and instructs a prosecutor or a pre‑trial investigation judge to carry out investigative measures provided for in the Code of Criminal Procedure; 4) the court adjourns the examination of the case in order to allow newly appointed defence counsel to acquaint himself or herself with the case file ...” THE LAW I. ALLEGED VIOLATION OF THE PROCEDURAL LIMB OF ARTICLE 2 OF THE CONVENTION 41. The applicants complained that the criminal investigation into the alleged medical negligence which had led to their newborn daughter’s death had been lengthy and ineffective. They relied on the procedural limb of Article 2 of the Convention, the relevant part of which reads: “1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally ...” A. Admissibility 42. The Government submitted that the applicants had failed to exhaust domestic remedies, because they had not lodged a civil claim against the State for compensation in respect of damage caused by the allegedly ineffective criminal proceedings. They provided examples of domestic case‑law where damages had been awarded in similar cases. The Government also submitted that the applicants could have lodged a civil claim for compensation in respect of damage caused by the excessive length of the criminal proceedings – a remedy which the Court had found to be effective in Savickas and Others v. Lithuania ((dec.), no. 66365/09, 15 October 2013). 43. The applicants submitted that they had exhausted criminal and civil remedies against Jurbarkas Hospital and were therefore not required to initiate any more proceedings. 44. The Court observes that the applicants have fully exhausted both the criminal and civil law avenues in pursuit of their complaint concerning medical negligence. Accordingly, it does not share the Government’s view that they ought to have used a separate remedy of civil proceedings against the State (see Kraulaidis v. Lithuania, no. 76805/11, § 51, 8 November 2016, and the cases cited therein). Furthermore, the Court has previously held that, in the assessment of the authorities’ compliance with the procedural obligation under Article 2 of the Convention, length of proceedings remedies are insufficient, as it is not merely the length of the proceedings which is in issue. The main question is rather whether, in the circumstances of the case seen as a whole, the State could be said to have complied with its procedural obligation under Article 2 of the Convention (see Bilbija and Blažević v. Croatia, no. 62870/13, § 110, 12 January 2016, and the cases cited therein). The Government’s argument as to non‑exhaustion of domestic remedies must therefore be dismissed. 45. The Court further notes that the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions (a) The applicants 46. The applicants argued that the criminal proceedings concerning their daughter’s death at Jurbarkas Hospital had been lengthy and ineffective. They submitted that the pre-trial investigation had been discontinued and reopened twice (see paragraphs 18 and 24 above), there had been unexplained periods of inactivity, and the prosecutor had only forwarded the order for a forensic examination to the relevant expert one year and two months after it had been issued (see paragraph 20 above). They further submitted that the Jurbarkas District Court had not made any effort to speed up the examination of the case before the expiry of the statute of limitations. (b) The Government 47. The Government firstly argued that the criminal proceedings had been effective. They submitted that the pre-trial investigation had been opened on the day of the applicants’ request, it had been conducted by independent and impartial authorities, the applicants had been given sufficient opportunity to participate in it, and the authorities had carried out all the necessary investigative measures, such as obtaining documents, questioning witnesses and requesting forensic examinations. The Government argued that the decisions to discontinue the investigation had not been arbitrary, because they had been based on specialist opinions and forensic examinations which had found no causal link between the doctors’ actions and the baby’s death. The Government also argued that the applicants themselves had contributed to the length of the investigation by requesting additional specialist opinions and forensic examinations. 48. The Government further submitted that the length of the pre‑trial investigation had resulted mainly from the time taken to deliver specialist opinions and perform forensic examinations, and that had been caused by the experts’ workload. While acknowledging that the order for an additional forensic examination had only been forwarded to the expert one year and two months after it had been issued (see paragraph 20 above), the Government contended that that had not significantly prolonged the investigation, because the results of that examination had been delivered only five months after those of the previous forensic examination (see paragraphs 21 and 23 above). 49. Lastly, the Government submitted that the State’s positive obligations under Article 2 of the Convention did not require criminal liability in cases concerning medical negligence. They submitted that the applicants had successfully lodged civil proceedings against the hospital and had been awarded compensation for pecuniary and non-pecuniary damage caused by inadequate medical services (see paragraphs 33-35 above). The Government submitted that the Court had acknowledged the adequacy of the Lithuanian legal framework with regard to the liability of doctors in Rinkūnienė v. Lithuania ((dec.), no. 55779/08, 1 December 2009). 2. The Court’s assessment (a) Relevant general principles 50. The Court reiterates that the procedural obligation under Article 2 of the Convention requires the States to set up an effective independent judicial system so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable (see Šilih v. Slovenia [GC], no. 71463/01, § 192, 9 April 2009, and the cases cited therein). This procedural obligation is not an obligation of result but of means (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 71, ECHR 2002‑II). 51. The Court also reiterates that, although the Convention does not guarantee a right to have criminal proceedings instituted against third parties, the effective judicial system required by Article 2 may, and under certain circumstances must, include recourse to criminal law. However, if the infringement of the right to life is not caused intentionally, the procedural obligation imposed by Article 2 does not necessarily require the provision of a criminal-law remedy in every case. In the specific sphere of medical negligence the obligation may 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 responsibility of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and/or 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 Šilih, cited above, § 194). 52. Lastly, the Court reiterates that, apart from the concern for the respect of the rights inherent in Article 2 of the Convention in each individual case, more general considerations also call for a prompt examination of cases concerning death in a hospital setting. Knowledge of the facts and possible errors committed in the course of medical care is essential to enable the institutions and medical staff concerned to remedy the potential deficiencies and prevent similar errors. The prompt examination of such cases is therefore important for the safety of users of all health services (see Byrzykowski v. Poland, no. 11562/05, § 117, 27 June 2006, and Šilih, cited above, § 196). (b) Application of the above principles to the present case 53. Turning to the circumstances of the present case, the Court will firstly address the applicants’ submissions concerning the effectiveness of the criminal proceedings at the pre-trial and trial stage. 54. The pre-trial investigation in the case lasted more than four years and nine months (see paragraphs 13 and 25 above), a period which the Court considers excessive even taking into account the complexity of the case. As seen from the case file, there were several periods of inactivity (almost four months from October 2009 to February 2010, three months from June to September 2010, almost four months from September 2010 to January 2011, more than five months from December 2011 to May 2012, and more than two months from July to October 2012), which together amounted to about one year and six months of inactivity imputable to the authorities. The Court also notes that for the rest of the time the investigation was conducted very slowly and the investigative measures were sparse. 55. The Government submitted that many of the delays in the investigation had been caused by the workload of specialists and experts, but the Court cannot accept that argument and reiterates that it is for the State to organise its judicial system in such a way as to enable its institutions to comply with the requirements of the Convention (see, mutatis mutandis, O’Reilly and Others v. Ireland, no. 54725/00, § 33, 29 July 2004; Rakhmonov v. Russia, no. 50031/11, § 60, 16 October 2012; and W. v. Slovenia, no. 24125/06, § 69, 23 January 2014). The Government also argued that the applicants had themselves prolonged the investigation by requesting additional specialist opinions and forensic examinations. The Court acknowledges that the applicants’ request for an additional specialist opinion (see paragraph 17 above) appeared to have been based on their disagreement with the conclusions of the previous opinion rather than on any shortcomings therein. However, it notes that the authorities were not obliged to satisfy the applicants’ request for an additional opinion if they did not consider it necessary (see Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 180, 14 April 2015). The Court further observes that the applicants’ request for an additional forensic examination (see paragraph 20 above) resulted from the fact that their questions had not been forwarded to the experts conducting the previously ordered examination, without any reasons being provided (see paragraph 19 above), so in the Court’s view, the applicants cannot be reproached for asking for another examination which would address their questions. 56. Of particular concern to the Court is the authorities’ failure to forward an order for a forensic examination to the relevant experts for one year and two months, for which nobody was held responsible (see paragraphs 20 and 22 above). Although the Government submitted that that failure had prolonged the investigation by “only five months” (see paragraph 48 above), the Court considers such a delay to be significant, especially in view of the total length of the pre-trial investigation and the fact that the proceedings eventually became time-barred. 57. The Court further notes that, following the lengthy pre-trial investigation, the case was transferred to the Jurbarkas District Court for examination on the merits when only slightly more than one month remained until the expiry of the statute of limitations (see paragraphs 8 and 39 above). In such circumstances, the Court considers that there was little that the domestic court could do to avoid the case becoming time-barred, especially as the domestic law at that time did not allow suspending the statute of limitations (see paragraphs 39-40 above). It nonetheless observes that, after the first two hearings were adjourned as a result of the illness of the accused, the Jurbarkas District Court scheduled the next hearing on 25 June 2014 – a date which was already after the expiry of the statute of limitations – because of the defence lawyer’s schedule, without examining the possibility of finding another date before 21 May 2014 or suggesting that the accused appoint a different lawyer (see paragraph 27 above). 58. Accordingly, the Court is of the view that in the present case the criminal proceedings could not be regarded as effective for the purpose of Article 2 of the Convention. 59. However, the Court observes that there is no dispute that the death of the applicants’ daughter was not intentional. It reiterates that, in cases concerning medical negligence, the procedural obligation under Article 2 of the Convention does not necessarily require criminal liability, and civil liability may be sufficient (see Calvelli and Ciglio, § 51; Vo, § 90; and Šilih, § 194, all cited above). In the present case, the applicants lodged a civil claim against Jurbarkas Hospital and were awarded compensation for pecuniary and non-pecuniary damage caused by the inadequate medical services which had contributed to their daughter’s death (see paragraphs 33‑35 above). 60. The applicants lodged their civil claim in September 2011 (and revised it in December 2011 and August 2013 – see paragraph 33 above), but the first-instance judgment was only issued in November 2014 (see paragraph 34 above), thereby raising the question as to whether the proceedings were sufficiently prompt. No information was provided to the Court as to the reasons for that delay. However, it may be assumed that the civil proceedings were stayed pending the outcome of the criminal proceedings, especially as the courts in the former proceedings relied on the evidence obtained in the course of the latter (see paragraph 34 above; see, mutatis mutandis, Koceski v. the Former Yugoslav Republic of Macedonia (dec.), no. 41107/07, § 27, 22 October 2013). After the criminal proceedings became time‑barred, the civil proceedings were concluded without undue delay (see paragraphs 29, 31 and 34 above). 61. The Court further observes that the amount awarded to the applicants in the civil proceedings (EUR 23,170 in respect of non-pecuniary damage and EUR 1,945 in respect of pecuniary damage) corresponded to the degree of the hospital’s liability (see paragraph 34 above), and was adequate by Convention standards. 62. Lastly, the Court notes that the applicants complained only about the ineffectiveness of the criminal proceedings, but did not allege that the civil proceedings had been unfair or ineffective in any way, or that the amount awarded to them in the latter proceedings had been inadequate. 63. The foregoing considerations are sufficient for the Court to conclude that the State complied with its procedural obligations under Article 2 of the Convention. There has therefore been no violation of that provision in the present case. FOR THESE REASONS, THE COURT 1. Declares, by a majority, the application admissible; 2. Holds, by five votes to two, that there has been no violation of Article 2 of the Convention under its procedural limb. Done in English, and notified in writing on 11 July 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Marialena TsirliGanna YudkivskaRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a) joint partly dissenting opinion of Judges Yudkivska, Motoc and Ravarani; (b) dissenting opinion of Judge Motoc; (c) statement of dissent by Judge Paczolay. G.Y.M.T. JOINT PARTLY DISSENTING OPINION OF JUDGES YUDKIVSKA, MOTOC AND RAVARANI 1. To our regret, we are unable to agree with the majority’s finding concerning the admissibility of the application. Instead of finding no violation on the merits, the Court should have found the present application inadmissible, as the applicants had lost their victim status. 2. Even though the criminal proceedings might not have been effective, it follows clearly from the Court’s case-law that where medical negligence is at stake, an award of damages through civil or administrative proceedings may offer appropriate redress, a fact also conceded in the present judgment (see paragraph 51 of the judgment). In Calvelli and Ciglio v. Italy the Grand Chamber found that “if 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. Disciplinary measures may also be envisaged”[1]. In that case the Court also noted various procedural shortcomings in the criminal investigation, as a result of which the criminal proceedings instituted against the doctor concerned had become time-barred. However, since the applicants were also entitled to issue proceedings in the civil courts and had done so, the positive obligations arising under Article 2 were satisfied. In that connection, the Court reiterated that where a relative of a deceased person accepts compensation in settlement of a civil claim based on medical negligence he or she is in principle no longer able to claim to be a victim, and found it unnecessary to examine whether the fact that a time-bar had prevented the doctor being prosecuted for the alleged offence was compatible with Article 2. Therefore, having joined an objection on the applicants’ victim status to the merits of the case, the Court found no violation of Article 2, basing its finding precisely on the lack of victim status. The same approach, we believe, should have been taken here. 3. As the judgment concedes in paragraph 59, the applicants also had access to civil proceedings and introduced a civil claim against the hospital. They were awarded compensation for the pecuniary and non-pecuniary damage caused by the inadequate medical services that contributed to their daughter’s death. In its decision in Kolaczyk and Kwiatkowski v. Poland (no. 34215/11, 22 October 2013), the Court found that “the action for damages in the civil courts was an effective remedy that enabled the applicants to obtain redress ... Therefore it is not necessary to assess the effectiveness of the criminal investigation carried out in the present case. There is no doubt that the procedural obligation under Article 2 was complied with in the present case”[2]. 4. Against this background we wonder whether it was the correct approach, as stated in paragraph 53, to “firstly address the applicants’ submissions concerning the effectiveness of the criminal proceedings at the pre-trial and trial stage”, given that the detailed examination in paragraphs 54-57 ultimately led to a conclusion in paragraph 58 which remains a pure obiter dictum. 5. In sum, following the case-law of the Court and having regard to the fact that the present case concerns a death through negligence, we consider that the applicants had an effective remedy in civil proceedings (as they did not claim that these proceedings were unfair or ineffective[3]) and thus can no longer claim to be victims of the alleged violation of Article 2. Accordingly, this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and should have been rejected in accordance with Article 35 § 4. We therefore voted against point 1 in the operative part of the judgment. DISSENTING OPINION OF JUDGE MOTOC I have voted for the inadmissibility of the case for the reasons I have set out with Judges Yudkivska and Ravarani in our joint separate opinion. I consider, however, that once the case had been considered admissible, it was logical for the Court to find a violation of the procedural limb of Article 2 of the Convention. In fact, the domestic courts had never properly addressed the procedural violation of Article 2, only the substantive violation. STATEMENT OF DISSENT BY JUDGE PACZOLAY I am unable to follow the finding of the majority that there has been no violation of Article 2 of the Convention. [1]. Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002‑I. [2]. Kolaczyk v. Poland (dec.), no. 34215/11, § 50; see also Vo v. France [GC], no. 53924/00, § 91, ECHR 2004‑VIII. [3]. See § 60 of the judgment.

THIRD SECTION CASE OF CHEPINOGA AND OTHERS v. RUSSIA (Application no. 48836/09 and 4 others – see appended list) JUDGMENT STRASBOURG 6 July 2017 This judgment is final but it may be subject to editorial revision. In the case of Chepinoga and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Luis López Guerra, President,Dmitry Dedov,Jolien Schukking, judges,and Liv Tigerstedt, Acting Deputy Section Registrar, Having deliberated in private on 15 June 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2. The applications were communicated to the Russian Government (“the Government”). THE FACTS 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained that they had been denied an opportunity to appear in person before the court in the civil proceedings to which they were parties. THE LAW I. JOINDER OF THE APPLICATIONS 5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 6. The applicants complained that their right to a fair hearing had been breached on account of the domestic courts’ refusal of their requests to appear in court. They relied on Article 6 § 1 of the Convention, which reads as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” 7. The Court reiterates that the applicants, detainees at the time of the events, were not afforded an opportunity to attend hearings in civil proceedings to which they were parties. The details of those domestic proceedings are indicated in the appended table. The Court observes that the general principles regarding the right to present one’s case effectively before the court and to enjoy equality of arms with the opposing side, as guaranteed by Article 6 of the Convention, have been stated in a number of its previous judgments (see, among many other authorities, Steel and Morris v. the United Kingdom, no. 68416/01, §§ 59-60, ECHR 2005-II). The Court’s analysis of an alleged violation of the right to a fair trial in respect of cases where incarcerated applicants complain about their absence from hearings in civil proceedings includes the following elements: examination of the manner in which domestic courts assessed the question whether the nature of the dispute required the applicants’ personal presence and determination whether domestic courts put in place any procedural arrangements aiming at guaranteeing their effective participation in the proceedings (see Yevdokimov and Others v. Russia, nos. 27236/05 and 10 others, § 48, 16 February 2016). 8. In the leading case of Yevdokimov and Others v. Russia, nos. 27236/05 and 10 others, 16 February 2016, the Court already found a violation in respect of issues similar to those in the present case. 9. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. In particular, the Court dismisses the Government’s argument about belated applications in cases nos. 41652/12 and 27066/13. It notes that the applicants in the two cases first complained to the Court about their absence from civil proceedings in letters dispatched on 22 May 2012 and 17 March 2013, respectively, that is within the six months after the final judgments in their cases (see the appended table for further details). Having regard to its case-law on the subject, the Court considers that in the instant case the domestic courts deprived the applicants of the opportunity to present their cases effectively and failed to meet their obligation to ensure respect for the principle of a fair trial. 10. These complaints are therefore admissible and disclose a breach of Article 6 § 1 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 11. 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.” 12. Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the sums indicated in the appended table. 13. 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 these applications disclose a breach of Article 6 § 1 of the Convention concerning the applicants’ absence from civil proceedings; 4. Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State 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. Done in English, and notified in writing on 6 July 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv TigerstedtLuis López GuerraActing Deputy RegistrarPresident APPENDIX List of applications raising complaints under Article 6 § 1 of the Convention (applicant’s absence from civil proceedings) No. Application no.Date of introduction Applicant name Date of birth Nature of the disputeFinal decision First-instance hearing date Court Appeal hearing date Court Amount awarded for non-pecuniary damage and costs and expenses per applicant (in euros)[1] 48836/09 06/05/2009 Anatoliy Anatolyevich Chepinoga 02/03/1964 non-pecuniary damages for bad conditions of detention 08/10/2009 Abakan Town Court of the Khakassiya Republic 27/01/2010 Supreme Court of the Khakassiya Republic 1,500 41652/12 22/05/2012 Viktor Valeryevich Sablin 11/03/1976 non-pecuniary damages for wrongful conviction 02/08/2011 Tsentralnyy District Court of Chita 28/12/2011 Zabaykalskiy Regional Court 1,500 27066/13 17/03/2013 Andrey Mikhaylovich Korolenko 09/03/1968 victim’s claim for damages 13/08/2012 Leninskiy District Court of Vladimir 29/11/2012 Vladimirskiy Regional Court 1,500 19691/14 07/04/2014 German Nikolayevich Vyushkin 31/01/1976 non-pecuniary damages for bad conditions of detention (no doors in the restrooms; mould on the walls) 04/12/2013 Omutninskiy District Court of the Kirov Region 18/02/2014 Kirov Regional Court 1,500 35134/14 01/08/2014 Marsel Mirgayazovich Garayev 12/01/1978 non-pecuniary damages for unlawful criminal prosecution 21/10/2013 Aznakayevo Town Court of the Tatarstan Republic 16/01/2014 Supreme Court of the Tatarstan Republic 1,500 [1]. Plus any tax that may be chargeable to the applicants.

THIRD SECTION CASE OF ČESKÝ v. THE CZECH REPUBLIC (Application no. 33644/96) JUDGMENT STRASBOURG 6 June 2000 FINAL 04/10/2000 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It is subject to editorial revision before its reproduction in final form in the official reports of selected judgments and decisions of the Court. In the case of ČESKÝ v. the Czech Republic, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrL. Loucaides,MrP. Kūris,MrsF. Tulkens,MrK. Jungwiert,SirNicolas Bratza,MrsH.S. Greve, judges,andMrs S. Dollé, Section Registrar, Having deliberated in private on 31 August 1999 and 16 May 2000, Delivers the following judgment, which was adopted on that last-mentioned date: PROCEDURE 1. The case originated in an application (no. 33644/96) against the Czech Republic lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr Libor Český, a Czech citizen (“the applicant”), on 23 November 1995. 2. The applicant was represented by Mr K. Fiala, a lawyer practising in Prague. The Government of the Czech Republic (“the Government”) were represented by their Agent, Mr E. Slavík, Ministry of Justice. The application concerned the applicant’s detention on remand and the criminal proceedings brought against him. 3. On 14 January 1998 the Commission decided to communicate the application to the respondent Government. The Government’s written observations were submitted on 20 March 1998. The applicant replied on 5 May 1998. 4. On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol. The case was assigned to the Third Section. 5. On 31 August 1999 the Court declared admissible the applicant’s complaint under Article 5 § 3 of the Convention that there had been a breach of his right to trial within a reasonable time or to release pending trial. It declared inadmissible the remainder of the application concerning, inter alia, the alleged unreasonable length and unfairness of the criminal proceedings. 6. On the same day the Chamber decided that it was not necessary to hold a hearing. 7. On 22 December 1999, 31 October 1999, 11 and 16 February 2000 and 21 March 2000, the parties submitted their observations on the merits and just satisfaction. AS TO THE FACTS I.THE CIRCUMSTANCES OF THE CASE 8. In 1987 the Prague Municipal Court (městský soud) (hereinafter “the Municipal Court”) convicted the applicant of robbery and sentenced him to six and a half years’ imprisonment. On 4 April 1990 he was released and placed on probation for three years. At the beginning of October 1990 the former Czechoslovak authorities investigated a case about two missing persons. On 16 October 1990 a certain Mr B. was heard in connection with this investigation and stated that he, the applicant and another person had decided to rob these people at the apartment of one of them. Mr B. did not know how the two persons had been killed but he saw their bodies being removed from the apartment, and stated that the applicant and his accomplice had removed them. 1.Proceedings leading to the High Court’s decision of 16 January 1995 9. On 18 October 1990 the Prague Municipal Prosecutor (městský prokurátor) was requested by the investigator (vyšetřovatel) to authorise the applicant’s arrest. Agreement was given. On 19 October 1990 the Prague 1 police investigator charged the applicant with complicity in robbery under Article 9(2) and Article 234(1) and (3) of the Criminal Code. On 22 October 1990 the Municipal Court ordered the applicant’s arrest and detention. At the same time, a lawyer was appointed to represent the applicant. 10. On 12 January 1991 the applicant was arrested in Italy where he was working as a waiter. On 6 December 1991 he was released. On 2 December 1992 the Rome Court of Cassation upheld an extradition warrant. On 6 February 1993 the applicant was arrested, pursuant to the extradition warrant, and on 18 February 1993 he was extradited. 11. On 19 February 1993 a judge at the Municipal Court (soudce městského soudu), ordered the applicant’s detention on remand under Article 67(a)-(c) of the Code of Criminal Procedure with backdated effect from 6 February 1993. The court held that on 15 October 1990 the applicant had left the country although he had known that he was sought by the police. He had not returned and had not informed the competent authorities about his stay abroad. He had illegally obtained a passport with the likely intention of travelling to the United States. The court further noted that the applicant was being prosecuted for a robbery committed while on conditional release in connection with a sentence for a similar offence. This reasonably gave rise to the risk that he would re-offend. The court also found that the applicant could influence witnesses: during his stay in Italy, he had intervened in the investigation procedure and had advised potential witnesses. Moreover, the investigator did not hear the applicant, and it could not be excluded that he would influence his co-accused who were not detained on remand. 12. The applicant complained about his detention on remand to the High Court (Vrchní soud). He contended, in particular, that there was no reason to fear that he would abscond or influence witnesses, that he had his permanent residence in the Czech Republic where his family was living and that, in Italy, he had stayed at a known address and had appeared in court during the extradition proceedings. He also submitted that the majority of the witnesses had been heard. He further disputed the Municipal Court’s argument that his previous conviction justified the fear that he would re-offend. 13. On 29 March 1993 the High Court dismissed the applicant’s complaint as unsubstantiated and found that his detention was legal and justified. It upheld the reasons given by the Municipal Court. 14. Following the request of 29 March 1993 by the Prague Municipal Prosecutor (městský státní zástupce) (hereinafter “the Prosecutor”), on 5 April 1993 the Municipal Court extended the applicant's detention on remand until 6 June 1993. The court held that the detention was still necessary within the meaning of Article 67 (a)-(c) of the Code of Criminal Procedure. It stressed that the court awaited the results of the expert reports, the confrontation of the applicant with his co-accused and the completion of other steps in the investigation. 15. On 14 April 1993 the Municipal Court decided that, according to Article 71(7) of the Code of Criminal Procedure, the time spent in detention pending extradition, i.e. from 6 to 18 February 1993, would not be counted as part of the length of the applicant’s detention on remand. Accordingly, the applicant’s detention on remand started on 18 February 1993 when he was extradited to the Czech Republic. 16. On 2 June 1993 the Municipal Court, upon the Prosecutor’s request, extended the applicant’s detention on remand until 6 July 1993. 17. On 2 July 1993 the Prosecutor indicted the applicant, pursuant Article 234(1) and (3) of the Criminal Code, for robbery before the Municipal Court. He requested the Municipal Court, inter alia, to hear 62 witnesses and to consider further evidence taken during the investigation. At the same time, he requested the court to remand the applicant in custody under Article 67(a)-(c) of the Code of Criminal Procedure. 18. On 20 July 1993 the applicant lodged a request for release claiming that there was no concrete reason for him to remain in custody and that the previous conclusions drawn by the Municipal Court were incomplete or insufficiently justified. On 10 November 1993 the Municipal Court dismissed the request, considering that the reasons for the applicant’s detention on remand, as set out in the earlier decisions, were still relevant. It emphasised that the fear that the applicant would influence witnesses was justified by the existing contradictions between the statements given by the applicant and one of his two co-accused, who was not held in detention on remand. 19. On 17 November 1993 the applicant appealed against this decision, disputing the reasons for his detention on remand and claiming inter alia that four months had elapsed between the introduction of his request for release and the decision of the Municipal Court. 20. The trial before the Municipal Court was held on 13 December 1993, but was adjourned until 29 December 1993 and 28 February 1994, respectively, because one of the defendants and the victims were absent. The hearing on 28 February 1994 was held by a differently constituted chamber which had to recommence the assessment of the evidence. 21. On 3 March 1994 the Municipal Court dismissed the applicant’s further request for release, stating that there was still a risk that the applicant would abscond and considered, therefore, that the applicant’s detention was necessary within the meaning of Article 67(a) of the Code of Criminal Procedure. 22. On 10 March 1994 the applicant’s lawyer requested a hearing of further witnesses and the appointment of a medical expert. 23. The trial resumed on 11 April 1994 but was then adjourned until 6 June 1994 because of the absence of some witnesses and the need to repeat the evaluation of numerous elements of evidence. Moreover, the applicant and his co-accused requested the examination of further evidence. 24. On 15 April 1994 the Municipal Court rejected the applicant’s third request for release submitted on 8 April 1994. The court found that there was still a risk that the applicant would abscond. It referred to the fact that in Italy, when the applicant had become aware that criminal proceedings had been brought against him, he had not informed the Czech authorities of his whereabouts. On 11 May 1994 the applicant appealed against this decision submitting that, when he had become aware that criminal proceedings had been initiated against him, Czech television had portrayed him as a killer, contrary to the presumption of innocence. This had convinced him not to return to the Czech Republic. 25. On 10 June 1994 the Municipal Court convicted the applicant of robbery and sentenced him to 15 years’ imprisonment, and the confiscation of his car as well as a sum of CZK 4,372,000. The court found it established that in October 1990 the applicant and his two co-accused had killed two persons and stolen CZK 8,750,000. 26. On 16 January 1995 the High Court quashed the judgment and remitted the case to the Prosecutor for further investigations. The court considered that the Municipal Court had not established all the relevant facts of the applicant’s case with sufficient certainty. 2.Proceedings leading to the High Court’s decision of 17 February 1997 27. On 26 January 1995 the Supreme Court (Nejvyšší soud), at the High Court’s request of 17 January 1995, extended the applicant’s detention on remand until 30 June 1995 because of the complexity of the investigation. The court recalled that, shortly after the crime, the applicant had absconded to Italy. It further recalled that in the past the applicant had committed a similar offence. It therefore considered his detention necessary, within the meaning of Article 67(a)-(c) of the Code of Criminal Proceedings. 28. On 4 April 1995 the Prague 10 District Court (obvodní soud) dismissed the applicant’s fourth request for release of 8 March 1995, finding that there was a risk of absconding, repetition of offences of the same nature and influencing witnesses. The court recalled that the case had been remitted to the Municipal Prosecutor who would necessarily hear further witnesses whom the applicant could influence, thereby frustrating the investigation of the facts which were of importance for the conduct of the proceedings. The applicant appealed against this decision. He submitted that the Municipal Court had previously stated that there no longer existed specific grounds to believe that he would influence the witnesses or that he would re-offend. He also maintained that the necessity to hear further witnesses could not in itself justify the court’s anxiety that he would influence them and frustrate the criminal proceedings. 29. On 14 April 1995 the investigator ordered a medical examination of the applicant’s mental health and appointed two experts for that purpose. 30. On 3 May 1995 the Municipal Court dismissed the applicant’s appeal against the decision of the Prague 10 District Court of 4 April 1995. It found that there was still a suspicion that the applicant had committed the offence with which he had been charged. It held that the Municipal Court’s previous finding that there had been no reason for the applicant’s detention under Article 67(a) and (c) of the Code of Criminal Procedure related to that particular stage of the criminal proceedings. However, the situation with regard to the evidence had changed, as the High Court had quashed the judgment of the first instance court and had sent the case back to the investigating authorities. Moreover, the fear that the applicant would influence the witnesses was justified by the fact that one of his co-accused (Mr B.) had modified his statement and the court would call a new witness, whose identity was known to the applicant, and whose statement could be necessary for consideration of his guilt. 31. On 14 June 1995 the Supreme Court, upon the Prosecutor General’s (Nejvyšší státní zástupce) request, extended the applicant’s detention on remand until 30 November 1995, upholding the reasons given for the previous extension. 32. On 18 August 1995 the applicant lodged a constitutional appeal against this decision. He complained under Articles 5 § 3 and 6 § 1 of the Convention about delays in the proceedings and the unreasonable length of his detention on remand. The Constitutional Court apparently rejected the appeal as having been lodged outside the 60 day time-limit, pursuant to the Constitutional Court Act no. 182/1993. 33. On 21 November 1995 the High Court, at the Prosecutor General’s request, extended the applicant’s detention on remand until 31 March 1996, pursuant to Article 71(3) of the Code of Criminal Procedure, on the ground that it was necessary to examine further evidence, confirming that all the reasons for detention under Article 67(a)-(c) of the Code of Criminal Procedure continued to apply. The court stated that the investigating authorities had not yet been provided with a report by the Czech Commercial Bank or with a statement of a witness in France, taken by French judicial authorities. It further held that the applicant, being a dangerous offender who had already been convicted and sentenced to a heavy prison sentence, could, in case of his release, jeopardise the criminal proceedings. On 20 December 1995 the Supreme Court confirmed this extension. 34. On 16 January 1996 the applicant lodged a second constitutional appeal against the decisions of the High Court on 21 November 1995 and of the Supreme Court on 20 December 1995. He complained in particular that he had been detained for more than two years and that the courts had not dealt with the case fairly when extending his detention on remand. He invoked Article 8 §§ 1, 2 and 5 (personal liberty), Article 36 § 1 (fair trial) and Article 40 §§ 2 and 4 (presumption of innocence) of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod) (hereinafter “the Charter”). 35. On 26 March 1996 the High Court extended the applicant’s detention on remand until 30 June 1996, pursuant to Article 71(3) of the Code of Criminal Procedure, on the ground that the reasons for his detention within the meaning of Article 67(a) and (c) of the Code of Criminal Procedure continued to exist. The court considered inter alia that, given the legal qualification of the applicant’s offence, he was likely to be sentenced to a lengthy prison sentence. It also recalled that the applicant had already been convicted in the past and, if released, could frustrate the purpose of the present criminal proceedings. It noted that the applicant had frustrated the investigation when he had been in Italy. Even if he had stayed at a known address, he had not been at the disposal of the Czech authorities and his absence had therefore impeded the proceedings. 36. On 4 April 1996 the applicant appealed, disputing the findings of the High Court and claiming, inter alia, that there were no relevant facts justifying his continued detention on remand. On 2 May 1996 the Supreme Court upheld this extension. 37. On 14 May 1996 the applicant introduced a third constitutional appeal against the aforesaid decisions of the High Court and the Supreme Court. He alleged violations of his constitutional rights, in that the reasons for his detention invoked by the courts were not sufficient and relevant. The applicant also alleged that the decisions in question were not based on the real facts of his case. He complained that the detention had lasted unreasonably long. The applicant further pointed out that his previous constitutional appeal had still not been decided by the Constitutional Court. 38. On 31 May 1996 the Prosecutor informed the applicant about the re-assessment of his criminal offence and his new indictment for murder, pursuant to Article 219(1), (2)(a) and (h) of the Criminal Code. 39. On 3 June 1996 the Prosecutor formally indicted the applicant before the Municipal Court. 40. On 5 June 1996 the President of the Municipal Court submitted a request to the High Court for a further extension of the applicant’s detention on remand until 18 February 1997, pursuant to Article 67(a) and (c) of the Code of Criminal Procedure. She stated that the criminal proceedings were at the stage of an indictment, that the chamber dealing with the case would be overburdened until November 1996 and that the case was very complex. 41. On 18 June 1996 the High Court granted the request and extended the applicant’s detention on remand until 18 February 1997. The court referred to its decision of 26 March 1996, upheld by the Supreme Court on 2 May 1996, by which the applicant’s detention had been previously extended, recalling that the investigation was very complex and that there was still a risk that the applicant would abscond and re-offend. The court considered that there were no delays in the investigation. 42. On 24 June 1996 the applicant appealed against this decision to the Supreme Court, which dismissed his appeal on 11 July 1996. The court noted that the offence with which the applicant had been charged was punishable by a lengthy prison sentence, and that the applicant’s release would frustrate or hinder the purpose of the criminal proceedings. It recalled that the applicant had absconded from the Czech Republic to Italy, where he had lived illegally. It therefore considered his detention necessary, within the meaning of Article 67(a) of the Code of Criminal Procedure. The court further recalled that the applicant had been convicted in the past and concluded that he could re-offend. It therefore held that the applicant’s detention was also necessary, pursuant to Article 67(c) of the Code of Criminal Procedure. The court added that it lacked jurisdiction to deal with the applicant’s complaint about the delays in the proceedings, which fell within the sole competence of the President of the Municipal Court. 43. On 30 July 1996 the applicant made a fourth constitutional appeal, this time against the last extension of his detention on remand. 44. On 26 August 1996 the re-trial started before the Municipal Court and it was adjourned on 29 August 1996 until 18 November 1996 because certain witnesses did not appear and the applicant and his co-accused had suggested producing further evidence. Before the adjournment, the applicant requested to be released from custody. 45. On 28 August 1996 the Constitutional Court dismissed the applicant’s second constitutional appeal as manifestly ill-founded. It noted that the decisions extending the applicant’s detention had always been taken in accordance with the law, and that it was clear from the evidence available that the decisions concerned had always been given on the basis of the facts as they had been established at the relevant period. The court further held that it lacked jurisdiction to review the reasons for which the ordinary courts had considered the applicant’s detention on remand necessary. 46. On 3 September 1996 the Municipal Court dismissed the applicant’s request for release of 29 August 1996, considering that his detention was still necessary within the meaning of Article 67(a) and (c) of the Code of Criminal Procedure. The court referred to the applicant’s previous conviction and his avoidance of the criminal prosecution abroad. It also noted that neither the applicant nor his co-accused had given evidence before the court. 47. On 1 November 1996 the High Court rejected the applicant’s appeal against this decision. It noted that there was still a danger that he would abscond and re-offend. The court noted that the decision of the Municipal Court could have been formulated more precisely, but this did not make it unlawful. It recalled that the applicant had been charged, on the basis of the guilty plea of his co-accused, with an offence punishable by a heavy prison sentence, and that the circumstances in which he had left the Czech Republic and stayed successively in Germany and Italy unambiguously proved that he had not been looking for a job but had been trying to avoid the criminal prosecution. The court also recalled that the applicant had entrusted more than CZK 4,000,000 to an acquaintance, bought a car using another person’s identity card, obtained a false passport and tried to get details about the criminal procedure. It further noted that the character of the criminal offence with which the applicant had been charged justified the fear that he would re-offend, and recalled that the offence was committed during the applicant’s probationary period. 48. On 18 November 1996 the trial was resumed before the Municipal Court. It was adjourned on 21 November 1996 until 9 December 1996 because certain witnesses did not appear. 49. On 9 December 1996 the Municipal Court dismissed the applicant’s complaint of bias against the President of the chamber dealing with his case. 50. On 17 December 1996 the Municipal Court convicted the applicant of robbery under Article 234(1) and (3) of the Criminal Code and sentenced him as a very dangerous recidivist, pursuant Article 41(1) of the Criminal Code, to 13 years’ imprisonment and the confiscation of his car. 51. On the same day, the court rejected the applicant’s further request for release. It found that, with reference to the previous decisions concerning the latter’s detention, there was still the risk of his absconding and re-offending. 52. On 15 January 1997 the applicant completed his appeal against the decision of the Municipal Court of 9 December 1996, by which his complaint of bias against the President of the chamber had been dismissed. 53. On 3 February 1997 the High Court rejected the applicant’s appeal against the Municipal Court’s decision of 17 December 1996, by which his further request for release had been dismissed. The court stated that, having regard to the applicant’s personality and his criminal record, it could not be excluded that, if released, he would abscond and avoid prosecution. It also stated that the applicant’s prosecution for the offence committed during his probationary period justified the fear that he would re-offend. 54. On 10 February 1997 the High Court dismissed the applicant’s appeal against the Municipal Court’s decision of 9 December 1996. 55. On 17 February 1997 the High Court quashed the judgment of the Municipal Court of 17 December 1996 and remitted the case to that court for a new consideration of the case and a decision on the merits. The court considered that the Municipal Court had not properly assessed the evidence produced, had not established all the relevant facts of the applicant’s case and had based its judgment on evidence which had not been before it. The High Court determined what evidence it would be necessary to consider. 56. On 18 February 1997 the applicant was released because of the expiration of the four year maximum permissible period for detention on remand, pursuant to Article 71(4) of the Code of Criminal Procedure. 3.Proceedings leading to the High Court’s decision of 1 October 1997 57. On 8 July 1997 the Municipal Court convicted the applicant of robbery and sentenced him to 13 years’ imprisonment and the confiscation of his car. On 1 October 1997 the High Court quashed this judgment and sent the case back to the Municipal Court ordering that the case should be heard by a different chamber of the Municipal Court. It found, inter alia, that the Municipal Court had not respected the High Court’s decision of 17 February 1997 and had practically copied its previous judgment. 4.Proceedings leading to the High Court’s decision 18 September 1998 58. On 21 January 1998 the third re-trial before a new chamber of the Municipal Court was held. It was adjourned until 3 March 1998. 59. By judgment of 11 March 1998 the Municipal Court convicted the applicant of robbery and sentenced him to 13 years’ imprisonment and the confiscation of his car. On 18 September 1998 the High Court quashed this judgment and sent the case back to the Prague Municipal Court. 5.Proceedings leading to the Municipal Court’s judgment of 20 January 2000 60. On 20 January 2000 the Municipal Court delivered its fifth judgment convicting the applicant of robbery and sentencing him to 12 years’ imprisonment. The applicant’s appeal is still pending before the appellate court. II.RELEVANT DOMESTIC LAW 61. Until 31 December 1993, the relevant provisions of the Code of Criminal Procedure read as follows: Article 67 “An accused person may be remanded in custody only if there exist specific grounds to believe that he or she a) will abscond in order to avoid prosecution or punishment, in particular if his or her identity cannot be immediately established, if he or she has no permanent residence or if he or she is under the threat of a heavy penalty; b) will try to influence the witnesses or co-accused or otherwise frustrate the investigation into the facts which are of importance for the conduct of the proceedings, or c) will carry on the criminal activity for which he or she is prosecuted, will complete an offence attempted by him or her or will commit an offence which he or she was preparing or threatened to commit.” 62. Article 68 provides that only an accused person may be remanded in custody. The relevant decision shall be issued by a court or, at the pre-trial stage, by a judge upon a proposal lodged by the public prosecutor, and it must be justified by the particular circumstances of the case. 63. Under Article 72(2), an accused person is entitled to request his or her release at any time. Decisions on such requests are to be delivered without delay. In case of dismissal, a request for release may be re-introduced after fourteen days, when the dismissal becomes binding, unless it is based on different reasons. 64. As of 1 January 1994 the Code of Criminal Procedure was revised, its Article 67 continuing in effect, except for a slight modification to paragraph (b), as follows: “An accused person may be remanded in custody only if there exist specific grounds to believe that he … b) will try to influence the witnesses or co-accused who have not yet been heard by the court or otherwise frustrate the investigation into the facts which are of importance for the criminal proceedings, … .” 65. Pursuant to Article 71(1), the competent authorities shall give priority to cases involving a person’s detention on remand and shall deal with them as speedily as possible. 66. Article 71(3) provides that a person’s detention on remand shall not exceed two years. If, because of the complexity of the matter or for other serious reasons, it is not possible to complete the criminal proceedings within this period, and if the release of the accused person would jeopardise or substantially complicate achieving the aim of the proceedings, the High Court may extend the detention for the necessary period. 67. Under Article 71(4), a person’s detention on remand shall not exceed three years. In cases of particularly serious offences, within the meaning of Article 41(2) of the Criminal Code, the maximum permissible period of a person’s detention on remand is four years. FINAL SUBMISSIONS TO THE COURT 68. The Government asked the Court to find that the facts of the case disclose no breach of the Convention. 69. The applicant requested the Court to find a violation of Article 5 § 3 of the Convention and to make an award of just satisfaction under Article 41. AS TO THE LAW I.ALLEGED VIOLATIONS OF ARTICLE 5 § 3 OF THE CONVENTION 70. The applicant maintained that his detention on remand had been unreasonably long and that he should have been released pending the trial. He relied on Article 5 § 3 of the Convention which provides, so far as relevant, as follows: “Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article … shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” Right to trial within a reasonable time 1.Period to be taken into consideration 71. The Court may examine under Article 5 § 3 the length of the applicant’s detention between 6 February 1993 and 10 June 1994, i.e. from the moment when he was arrested in Italy, in respect of the criminal proceedings brought against him in the Czech Republic, until the delivery of the first Municipal Court’s judgment. It may also examine the applicant’s detention on remand between 16 January 1995 and 17 December 1996, i.e. from the moment when the High Court quashed the first judgment delivered by the Municipal Court until the latter delivered its second judgment, and between 17 and 18 February 1997, i.e. from the moment when the High Court quashed the second judgment given by the Prague Municipal Court until the applicant’s release (see the B. v. Austria judgment of 28 March 1990, Series A no. 175, pp. 15-16, § 39). Accordingly, the detention to be taken into consideration lasted three years, three months and seven days. 2.Reasonableness of the length of detention 72. The applicant contended that the national authorities had failed to establish any sufficient grounds reasonably permitting a suspicion of his having committed an offence. 73. The Government maintained that the reasons invoked in the relevant decisions were sufficient and that the detention did not exceed the maximum period permissible under Czech law. 74. The Court recalls that the reasonableness of the length of the detention must be assessed in each case according to its special features. Continued detention may be justified in a given case only if there are clear indications of a genuine public interest which, notwithstanding the presumption of innocence, outweigh the right to liberty. 75. It falls in the first place to the national judicial authorities to examine the circumstances for or against the existence of such an imperative interest, and to set them out in their decisions on the applications for release. It is essentially on the basis of the reasons given in these decisions, and of the facts established by the applicant in his appeals, that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention. 76. The persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices: the Court must then establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see, for example, the Assenov v. Bulgaria judgment of 28 October 1998, Reports of Judgments and Decisions 1998‑VIII, p. 3300, § 154, and the I.A. v. France judgment of 23 September 1998, Reports 1998-VII, p. 2978, § 102). 77. The Court notes that the applicant was charged with complicity in a robbery during which two persons were killed. The national investigation authorities heard a certain Mr B. who had stated that he, the applicant and another person had decided to rob these people at the apartment of one of them. In these circumstances, the Court considers that there existed a reasonable suspicion that the applicant had committed an offence. 78. As to the grounds for continued detention, the domestic courts relied on the complexity of the investigation, the danger that the proceedings would be obstructed if the applicant were released due to the risk of his absconding, influencing witnesses and repeating offences of the same nature. 79. As regards the risk of the applicant’s absconding, the Czech courts noted, in particular, that the applicant had left the country although he had known that criminal proceedings had been initiated against him and that he was sought by the police. He had not returned to the Czech Republic and had not informed the competent authorities about his stay abroad. The circumstances in which he had left the country and stayed successively in Germany and Italy, unambiguously proved that he had not been looking for a job but had been trying to avoid the criminal prosecution. Moreover, the applicant had entrusted more than CZK 4,000,000 to an acquaintance, bought a car using another person’s identity card, obtained a false passport and tried to get details about the criminal proceedings. The national courts also noted that, given the legal qualification of the applicant’s offence, he was likely to be sentenced to a lengthy prison sentence. In the Court’s view, this reasoning is “sufficient” and “relevant” and it outweighs the arguments put forward by the applicant based on his claim to have left the country to find a job, and his permanent residence in the Czech Republic where he was living with his family. 80. Having reached this conclusion, the Court does not consider it necessary to examine the other grounds for the applicant’s detention invoked by the domestic courts. 81. As regards the conduct of the proceedings by the national authorities, the Court notes that almost four months elapsed between remanding the applicant in custody and filing the indictment on 2 July 1993. The Government do not explain the length of this period. 82. Over five more months then elapsed between the filing of the indictment and the first trial hearing before the Municipal Court on 13 December 1993. Subsequently, the Municipal Court adjourned four other hearings because of the absence of certain participants to the proceedings and the request by the applicant and one of his co-accused to have further evidence examined. As a result, it delivered its first judgment after a period of six months. 83. The High Court subsequently quashed the judgment of 10 June 1994 on the ground that the Municipal Court had not established all the relevant facts of the applicant’s case with sufficient certainty. 84. The Municipal Court delivered its second judgment after a delay of another twenty-three months. The length of this period does not appear, as such, to be excessive as the Municipal Court held and adjourned three main hearings for different procedural reasons, such as the non-appearance of certain witnesses, and requests by the applicant and his co-accused for the hearing of further witnesses and the production of further evidence. Moreover, the national authorities were faced with difficulties in obtaining evidence from the French judicial authorities, namely the statement of a witness living in France, and from the Czech Commercial Bank. 85. The Municipal Court delivered its second judgment on 17 December 1996. It was quashed by the High Court on 17 February 1997, i.e. two months later, on the grounds that the Municipal Court had not properly assessed the evidence produced, had not established all the relevant facts of the case, and had based its judgment on evidence which had not been before it. The High Court determined what evidence it would be necessary to consider. The next day the applicant was released as the maximum length of detention permitted by law expired. 86. Nevertheless, having regard to the circumstances of the case as a whole, the Court finds that “special diligence” was not displayed in the conduct of the proceedings. 87. Accordingly, there has been a violation of Article 5 § 3 of the Convention as a result of the length of the applicant’s detention on remand. II.APPLICATION OF ARTICLE 41 OF THE CONVENTION 88. 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 89. The applicant originally claimed DEM 440,000 (CZK 8,052,000), which he subsequently reduced to DEM 286,000 (CZK 5,233,800), as compensation for the length of his detention on remand. This amount included compensation for the applicant’s loss of earnings (CZK 324,000), calculated on the basis of average wages in the Czech Republic between 1993 and 1997, and compensation for his health, psychological and social injuries which, according to the applicant, could not be objectively assessed. 90. The Government opposed these claims, arguing that they were unjustified and unsubstantiated. They also maintained that the calculation of loss, on the basis of average salary, was not relevant in the present case. 91. The Court notes that the fifth judgment of the Municipal Court of 20 January 2000, by which the applicant was convicted of robbery and sentenced to 12 years’ imprisonment, has not yet become final as the applicant’s appeal against this judgment is still pending before the appellate court. It cannot, therefore, be said that the length of the applicant’s detention pending trial was deducted from his sentence. In these circumstances, and even assuming that the applicant did not have permanent employment in the Czech Republic when he was arrested and detained on remand, the Court considers that there is a certain causal link between the violation of Article 5 § 3 of the Convention found and the sums claimed by the applicant to compensate for his loss of earnings. The Court awards the applicant, on an equitable basis, CZK 100,000 as compensation for pecuniary damage. 92. The Court further considers that the finding of a violation of Article 5 § 3 of the Convention constitutes in itself sufficient just satisfaction in respect of any non-pecuniary damage suffered by the applicant. B.Costs and expenses 93. The applicant claimed payment of the costs and expenses he had incurred before the Czech courts (CZK 60,000) and the Court (CZK 6,000). He presented the relevant documents in this respect. 94. The Government made no comment on these claims. 95. The Court recalls that in order for costs and expenses to be recoverable under Article 41 of the Convention, it must be established that they were actually and necessarily incurred, and reasonable as to quantum (see, among other authorities, the Nikolova v. Bulgaria judgment of 25 March 1999, to be published in the Court’s official reports, § 79). 96. The Court is satisfied that the applicant’s claim is established and accordingly awards the applicant the total sum of CZK 66,000. C.Default interest 97. According to the information available to the Court, the statutory rate of interest applicable in the Czech Republic at the date of adoption of the present judgment is 10% per annum. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.Holds that there has been a violation of Article 5 § 3 of the Convention; 2.Holds (a)that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts: (i) 100,000 (one hundred thousand) Czech crowns in respect of pecuniary damage, (ii) 66,000 (sixty six thousand) Czech crowns for costs and expenses, (b)that simple interest at an annual rate of 10% shall be payable from the expiry of the above-mentioned three months until settlement; 3.Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant; 4.Dismisses the remainder of the applicant’s claims for just satisfaction. Done in English, and notified in writing on 6 June 2000, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. DolléJ.-P. CostaRegistrarPresident

THIRD SECTION CASE OF STEPANOV AND OTHERS v. RUSSIA (Applications nos. 44388/17 and 3 others - see appended list) JUDGMENT STRASBOURG 28 June 2018 This judgment is final but it may be subject to editorial revision. In the case of Stepanov and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Alena Poláčková, President,Dmitry Dedov,Jolien Schukking, judges,and Liv Tigerstedt, Acting Deputy Section Registrar, Having deliberated in private on 7 June 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2. The applications were communicated to the Russian Government (“the Government”). THE FACTS 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention. In applications nos. 44497/17 and 60480/17 the applicants also raised complaints under Article 13 of the Convention. THE LAW I. JOINDER OF THE APPLICATIONS 5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 6. The applicants complained principally of the inadequate conditions of their detention. They relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 7. The Court notes that the applicants were kept in detention in poor conditions. The details of the applicants’ detention are indicated in the appended table. The Court refers to the principles established in its case‑law regarding inadequate conditions of detention (see, for instance, Kudła v. Poland [GC], no. 30210/96, §§ 90‑94, ECHR 2000‑XI, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 139‑165, 10 January 2012). It reiterates in particular that extreme lack of space in a prison cell or overcrowding weighs heavily as an aspect to be taken into account for the purpose of establishing whether the impugned detention conditions were “degrading” from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see, amongst many authorities, Karalevičius v. Lithuania, no. 53254/99, §§ 36‑40, 7 April 2005). 8. In the leading case of Sergey Babushkin v. Russia, no. 5993/08, 28 November 2013, the Court already found a violation in respect of issues similar to those in the present case. 9. Having examined all the material submitted to it, as well as the Government’s objection concerning the six-month requirement in relation to application no. 60480/17, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court rejects the Government objection of six months in application no. 60480/17, considering the applicant’s situation to be of a “continuous” nature (see Benediktov v. Russia, no. 106/02, § 31, 10 May 2007), and finds that in the instant case the applicants’ conditions of detention as described in the appended table below were inadequate. 10. These complaints are therefore admissible and disclose a breach of Article 3 of the Convention. III. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 11. In applications nos. 44497/17 and 60480/17, the applicants also submitted complaints under Article 13 of the Convention. These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Sergey Babushkin, cited above, §§ 38-45. IV. REMAINING COMPLAINTS 12. In applications nos. 44497/17 and 63056/17, the applicants also raised other complaints under Article 3 of the Convention. 13. The Court has examined the applications listed in the appended table and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that this part of the applications must be rejected in accordance with Article 35 § 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 14. 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.” 15. Regard being had to the documents in its possession and to its case‑law (see, in particular, Sergey Babushkin v. Russia, (just satisfaction), no. 5993/08, 16 October 2014, and Mozharov and Others v. Russia, no. 16401/12 and 9 others, 21 March 2017), the Court considers it reasonable to award the sums indicated in the appended table. 16. 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 complaints concerning the inadequate conditions of detention and the other complaints under well-established case-law of the Court, as set out in the appended table, admissible and the remainder of the applications nos. 44497/17 and 63056/17 inadmissible; 3. Holds that these complaints disclose a breach of Article 3 of the Convention concerning the inadequate conditions of detention; 4. Holds that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court (see appended table); 5. Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State 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. Done in English, and notified in writing on 28 June 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv TigerstedtAlena Poláčková Acting Deputy RegistrarPresident APPENDIX List of applications raising complaints under Article 3 of the Convention (inadequate conditions of detention) No. Application no. Date of introduction Applicant name Date of birth Representative name and location Facility Start and end date Duration Inmates per brigade Sq. m. per inmate Number of toilets per brigade Specific grievances Other complaints under well-established case-law Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros)[1] 44388/17 25/05/2017 Stepan Sergeyevich Stepanov 03/08/1988 IK-34 Krasnoyarsk Region 15/04/2015 to 17/05/2017 2 year(s) and 1 month(s) and 3 day(s) 1.3 m² Overcrowding, lack of privacy for toilet. 5,000 44497/17 13/06/2017 Natalya Vasilyevna Zhorzhesko 02/01/1974 Vinogradov Aleksandr Vladimirovich Kostroma IK-8 Kostroma Region 24/08/2011 to 19/05/2017 5 year(s) and 8 month(s) and 26 day(s) 100 inmate(s) 0.6 m² Infestation of cell with insects/rodents, overcrowding, lack of or insufficient physical exercise in fresh air, lack of or insufficient electric light, sharing cells with inmates infected with contagious disease, poor quality of food, lack of privacy for toilet, no or restricted access to shower. Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention. 5,000 60480/17 04/08/2017 Yuriy Nikolayevich Lobynev 09/07/1987 Egle Denis Sergeyevich Krasnoyarsk IK-15 Norilsk 14/11/2011 to 22/12/2016 5 year(s) and 1 month(s) and 9 day(s) IK-17 Krasnoyarsk Region 22/12/2016 to 03/03/2017 2 month(s) and 10 day(s) 180 inmate(s) 0,25 m² 6 toilet(s) 220 inmate(s) 0,45 m² 5 toilet(s) Lack of fresh air, lack of or inadequate hygienic facilities, lack of privacy for toilet, no or restricted access to shower, no or restricted access to toilet, overcrowding; Inadequate temperature, lack of fresh air, lack of or inadequate hygienic facilities, lack of privacy for toilet, no or restricted access to shower, no or restricted access to toilet, overcrowding, poor quality of food. Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention. 5,000 63056/17 14/08/2017 Grigoriy Vladimirovich Larionov 17/03/1966 IK-5 Kirov Region 15/11/2016 to 15/03/2017 4 month(s) and 1 day(s) IK-5 Kirov Region 28/03/2017 to 03/08/2017 4 month(s) and 7 day(s) 1 m² 1 m² No or restricted access to potable water, poor quality of potable water, no or restricted access to shower, no or restricted access to warm water, inadequate temperature, lack of or insufficient physical exercise in fresh air, infestation of cell with insects/rodents, lack of fresh air, lack of or poor quality of bedding and bed linen, overcrowding. See above. 3,900 [1] Plus any tax that may be chargeable to the applicants.

THIRD SECTION CASE OF ABDULKHADZHIYEVA ANDABDULKHADZHIYEV v. RUSSIA (Application no. 40001/08) JUDGMENT STRASBOURG 4 October 2016 FINAL 30/01/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Abdulkhadzhiyeva and Abdulkhadzhiyev v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Luis López Guerra, President,Helen Keller,Dmitry Dedov,Branko Lubarda,Pere Pastor Vilanova,Alena Poláčková,Georgios A. Serghides, judges,and Stephen Phillips, Section Registrar, Having deliberated in private on 6 September 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 40001/08) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Russian nationals, Ms Malika Abdulkhadzhiyeva (“the first applicant”) and Mr Ramzan Abdulkhadzhiyev (“the second applicant”), on 29 July 2008. 2. The applicants were represented by Mr I.Y. Timishev, a lawyer practising in Nalchik, the Republic of Kabardino-Balkariya. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights. 3. The applicants alleged, in particular, that in October 1999 they had been wounded by State servicemen and that the authorities had failed to effectively investigate the matter. 4. On 8 November 2011 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicants were born in 1953 and 1957 respectively and live in the village of Savelyevskaya, in the Naurskiy District of the Chechen Republic. The second applicant is the first applicant’s brother-in-law. 6. The facts of the case, as submitted by the parties, may be summarised as follows. The events of 8 October 1999 1. Background information 7. At the material time, a counterterrorist campaign – involving intense military clashes between federal troops and local rebels – was taking place in the Chechen Republic. The law-enforcement bodies and the courts were not functioning. Upon the arrival of the military in Savelyevskaya, the local residents did not flee but remained in their homes. The village and the area around it were under the control of federal troops that were stationed in the vicinity. 8. At the beginning of October 1999 the outskirts of the village came under artillery fire, which forced the residents to seek the military’s permission to evacuate their cattle. 2. Wounding of the applicants 9. After permission to evacuate the cattle was obtained, on 8 October 1999 (in the documents submitted the date was also referred to as 8 October 2000), at around noon, the applicants and their neighbours, Mr R.M. and Mr M.R., arrived at the agreed spot at a copse of trees next to Savelyevskaya and approached the Russian federal servicemen who were stationed in the vicinity. The servicemen agreed to let them pass through to the field where their cattle were pastured to retrieve them. However, after the applicants, Mr R.M. and Mr M.R., had walked about several dozen metres away in the direction of the pasture, the servicemen opened fire on them. As a result, both applicants received wounds to the upper extremities (верхние конечности) and fell on the ground. Having witnessed the attack, a civilian, Mr D., tried to approach the servicemen, but was shot dead in the presence of the applicants and Mr M.R. Meanwhile, Mr R.M. managed to crawl away and inform the local authorities about the incident. 10. Both applicants and Mr M.R. remained on the ground for several hours; each time they tried to get up they were subjected to gunfire. Then three military servicemen approached, blindfolded them and took them to the premises of military unit no. 54262. In the meantime, after Mr R.M. informed the authorities of the incident, the head of the local administration, Mr Kh.S., arrived at the military unit, spoke to the servicemen and had the detainees released. As a result of the injuries she had sustained during the attack the first applicant was left with a permanent disability of the third degree. 11. The applicants’ cattle remained under the control of the servicemen and were never returned. According to the first applicant, as a result of the incident she lost sixteen head of cattle and the second applicant four head of cattle. In November 1999, after military unit no. 54262 had changed its stationing location from the vicinity of Savelyevskaya to a site elsewhere, the applicants and their relatives found the remains of seven cows whose meat had been consumed by the military unit; nine head of cattle were missing completely. 12. In July 2000, as soon as the local law-enforcement bodies had begun functioning again in their district, the applicants lodged an official complaint in respect of the events of 8 October 1999 with the local police (see paragraph 15 below). Towards September 2000 the law-enforcement bodies in other parts of Chechnya started to function again. 13. In support of their account of the events of 8 October 1999 the applicants furnished the Court with statements from witnesses Mr M.R. and Mr R.M., both dated 10 July 2008. 14. The Government did not contest the applicants’ account of the attack against them on 8 October 1999 and the loss of their cattle, but stressed that the perpetrators had not been identified. In their observations on the admissibility and merits of the application of 9 April 2012, they stated, in particular, the following: “... the damage to the applicants’ health occurred as a result of unidentified persons opening fire on them on 8 October 1999 in the village of Savelyevskaya in the Naurskiy District. After the shooting the unidentified persons stole cattle belonging to the applicants ...” 3. The official investigation and related court proceedings (a) The official investigation 15. On 17 July 2000 the first applicant complained in writing of the infliction of bodily injuries and the theft of her livestock to the Naurskiy district temporary department of the interior (Наурский Временный Отдел Внутренних Дел) (hereinafter “the Naurskiy VOVD”). 16. In her complaint she described the circumstances of the attack and stated, in particular, that she had been wounded by military servicemen, who had then blindfolded her and taken her and two other men to the premises of their military unit. She further stated that after her release the cattle had remained in the hands of the military and that all her efforts to recover them had been to no avail. 17. On 20 July 2000 the investigators questioned the first applicant, who stated that on 8 October 1999 she, the second applicant and Mr M.R. had gone to the pasture where cattle had been grazing, including a number of cows belonging to her. On the way there, at around noon, she had seen one of her cows lying shot and dying on the ground. The first applicant had approached her cow, but had been stopped by a group of military servicemen in light-coloured camouflage uniform, armed with machine guns, standing next to an armoured personnel carrier (hereinafter “the APC”). The first applicant had asked for their permission to drive the cattle home; one of the servicemen had gone to the APC and spoken to someone on the radio. After that he had returned and said that the applicants and Mr M.R. could proceed and collect their cattle. The applicant had walked just several metres away when she and her two companions had been subjected to gunfire, as a result of which she had been wounded in the left arm and the second applicant in the right arm. They had fallen to the ground and stayed there for about three to five hours; each time they had tried to get up, shots had been fired in their direction. Then three military servicemen had approached them, ordered them to put their hands behind their heads, blindfolded them and taken them in the APC to the premises of military unit no. 54262. The applicant provided the investigators with a detailed description of those three servicemen’s appearance. At the military unit the applicants had been given medical assistance. The applicant had asked the unit commander to drive her cattle over to pasture land lying closer to the village. The commander had promised to do that but he had not kept his promise and her cattle had gone missing. Then the head of the village administration had arrived and taken the applicants and Mr M.R. home. The applicant provided the investigators with a detailed description of the unit commander. She further stated that after the military unit had left the place where it had been stationed, she had gone to the field and found an envelope with the address of one of the servicemen who had been stationed there and that she still had the envelope and could provide it to the investigators. Subsequently the unit commander, Vadim, had visited her at home with a nurse to assist with the treatment of her wounded arm. Between August 1999 and February 2000 the applicant had not been able to seek official medical assistance, as hospitals in Chechnya had not been functioning. In February 2000, when the local hospital had resumed its activities, she had gone there and sought medical assistance for her wounded arm; she had stayed in the hospital for one month but had been left with a disability. 18. On 20 July 2000 the investigators questioned the second applicant and Mr M.R., both of whom stated that on 8 October 1999 they and the first applicant had gone out to drive their cattle home. On their way to the pasture they had met military servicemen who had given them permission to take their cattle home. However, after they and the applicant had then walked a dozen metres away from the servicemen the latter had opened fire. The first applicant had fallen to the ground, bleeding. Then the second applicant and Mr M.R. had screamed, asking the servicemen to stop firing, but to no avail. As a result, the second applicant had been shot in the upper extremities. Then they had fallen to the ground and after several hours had been found by the servicemen and taken to the military unit. 19. On 12 October 2000 the Naurskiy VOVD opened criminal case no. 30471 on account of the infliction of minor bodily injuries on the applicants (Article 112 § 2 of the Criminal Code). The decision stated: “... on 8 October 1999 during the day unidentified persons intentionally inflicted bodily injuries on [the applicants] ...” 20. On 20 October 2000 the investigators granted the first applicant victim status in the criminal case and questioned her again. She reiterated her earlier statement (see paragraph 17 above) and added that the unit commander’s name had been Vadim and that he had had the rank of lieutenant-colonel. She also provided a detailed description of her disappeared cattle and reiterated that as a result of the incident she had lost sixteen cows. 21. On 20 October 2000 the investigators seized the envelope found by the applicant on the former premises of the military unit (see paragraph 17 above). 22. On 23 October 2000 the investigators granted the second applicant victim status in the criminal case and questioned him again. His statement was similar to that of the first applicant (see paragraph 17 above). In addition, he stated that after the servicemen had taken him, the first applicant and Mr M.R. to the military unit’s premises, they had provided him with medical assistance for his wounded arm and that the unit commander, a lieutenant-colonel named Vadim, had given him his apologies for his soldiers’ actions. Subsequently, the officer had visited him at home with a nurse to assist with the treatment of his wounds, as the local hospitals had not been functioning at that time. The second applicant also provided the investigators with a detailed description of his four cows, which had disappeared as a result of the incident. 23. On 24 October 2000 the investigators granted Mr M.R. victim status in the criminal case and questioned him. His statement concerning the incident was similar to the ones given by the applicants (see paragraphs 17 and 18 above). In addition, he provided a detailed description of the three servicemen who had approached him and the applicants after the shooting. He also stated that the commander’s name had been Vadim and that his military rank had been that of lieutenant-colonel. Two days after the events, on 10 October 1999, he had gone to the place of the incident and found the corpses of two of his cows, which had been shot. Two other cows had gone missing. 24. On 24 October 2000 the investigators questioned two of the first applicant’s neighbours, Ms S.G. and Ms P.Kh., both of whom stated that they had not witnessed the incident in October 1999, but that they had been told that the first and second applicants had been shot and wounded by the military servicemen and one man had been shot dead by them and that as a result of the incident the applicants’ cattle had been lost. 25. On 30 October 2000 an expert examination ordered by the investigator took place; the examination identified the scars on the first applicant’s left forearm as likely to have resulted from a perforating firearms wound in the circumstances described by her and categorised them as bodily harm of “medium gravity”. 26. On the same day, 30 October 2000, the second applicant was also examined by the expert. The examination identified the scars on his right forearm and the fingers of the left hand as likely to have resulted from perforating firearms wounds and categorised them as bodily harm of “minor gravity”. 27. On 20 and 23 October 2000 respectively both applicants were granted victim status in the criminal case. The relevant decisions stated, amongst other things, that: “... on 8 October 1999 unidentified persons ... inflicted bodily injuries on [the applicants] and stole [their] cattle ...” 28. Two months later, on 12 December 2000, the investigation was suspended for failure to identify the perpetrators. The applicants were not informed of that suspension. 29. On an unspecified date between January 2001 and May 2005 the first applicant complained to a supervising prosecutor about the delays in the investigation. On 29 July 2005 the Naurskiy VOVD replied to the complaint, stating that the investigation had been suspended for failure to identify the perpetrators. 30. On an unspecified date in 2005, the first applicant also lodged an official complaint about his lack of access to the investigation file. On 28 December 2005 the Naurskiy district prosecutor’s office (hereinafter “the district prosecutor’s office”) replied to her, stating that she could access the file only upon the completion of the criminal investigation. 31. In 2005 the first applicant lodged several complaints about the delays in the investigation with the Prosecutor General’s office, which forwarded them to the district prosecutor’s office. The complaints remained unanswered. 32. It appears that as a result of the first applicant’s complaints, the investigation was resumed on 18 January 2006 and the applicants were informed accordingly. 33. On 28 January 2006 the investigators examined the envelope seized from the first applicant (see paragraph 21 above). As a result, the name and the address of officer B. (to whom it had been sent at an address in the town of Kostroma) were established. 34. On 6 February 2006 the investigators examined the crime scene in the vicinity of the village of Savelyevskaya. No evidence was collected. 35. On 20 February 2006 the investigators again questioned the first applicant, whose statement was similar to the ones she had given previously (see paragraphs 17 and 20 above). 36. On 22 February 2006 the investigators questioned the second applicant, who reiterated his earlier statements (see paragraphs 18 and 22 above). In addition, he stated that the body of the man who had been shot dead during the incident had been recovered by the villagers about a week after the events and buried shortly afterwards. 37. On 22 February 2006 the investigators questioned Mr Z. Kh., who stated that in October 1999 he had assisted in negotiating the applicants’ and Mr M.R’s release from the premises of the military unit. Mr Z. Kh. stated that he did not know what military unit it was. 38. On 22 February 2006 the investigators questioned Mr Kh.S., who stated that since 1999 he had been the head of the local administration. His statement was similar to those given by the applicants. In addition, he stated that the commander of the military unit had promised to drive the cattle back to the village, but that this had not happened. 39. On 22 February 2006 the investigators again questioned Mr M.R., whose statement was similar to the ones he had previously given (see paragraphs 18 and 23 above). 40. On 26 February 2006 the investigators terminated the investigation of criminal case no. 30471 because of the expiry of the time-limits for prosecution under Articles 78 and 112 of the Criminal Code. 41. On the same date (26 February 2006) the investigators refused (in the light of the expiry of the time-limit) to initiate a new criminal investigation into the injuries sustained by the applicants on 8 October 1999. 42. On 17 March 2006 investigators in Kostroma questioned officer B., who stated that in October 1999 he had been serving in military unit no. 54262, which had been stationed in the Naurskiy District, Chechnya. He had no information concerning the attack on the applicants and had no idea who had been the commander of the military unit at the material time. Officer B. stated that in December 2000 (while he had been in Chechnya) he had been questioned about the incident, but he could not remember by whom and under what circumstances. 43. On 26 April 2008 the head of the Naurskiy VOVD overruled the decision to terminate the criminal investigation as unsubstantiated and premature and ordered that the proceedings be reopened and the case file be transferred to another law-enforcement body, in accordance with the rules of jurisdiction. The reasoning for the decision stated, inter alia, the following: “... The investigation established that an unidentified person had opened fire and wounded in the arm [the first and the second applicants], causing them medium and minor gravity bodily harm, respectively [...] ... it was also established that unidentified persons had committed the theft of sixteen cows belonging to [the applicants] and of two cows belonging to Mr M.R. On 26 February 2006 the investigation of the criminal case was terminated for failure to identify the perpetrators. The examination of the contents of the criminal case file demonstrated that the victims [the applicants] had been shot at with firearms, from a distance ... and the location of their wounds showed that life-threatening damage could have been caused to them ... In addition, according to the information in the case file, Mr D. had been shot and killed on the spot in [the applicants’] presence. In the light of the above, the investigation of the criminal case failed to establish in full whether an attempt on the lives of [the applicants] had been made by the unidentified persons who [were responsible for] their gunshot wounds ...” 44. On 29 April 2008 the re-opened criminal case file no. 30471 was forwarded to the Naurskiy Inter-district Investigations Department of the Chechnya Prosecutor’s office (hereinafter “the investigations department”) for investigation. 45. On 7 May 2008 the investigations department refused to institute criminal proceedings, noting that: “... [the applicants] had been injured in non-vital parts of their bodies, which was confirmed by expert examinations. Therefore, there are no grounds for thinking that the alleged perpetrators intended to commit ... ‘attempted murder’,.. as argued by [the applicants] ...” The decision did not mention anything about the applicants’ cattle. 46. On 14 May 2008 the investigations department adopted a decision terminating the investigation in criminal case no. 30741 because of the expiry of the time-limits for prosecution. 47. From the documents submitted it appears that on 10 July 2008 the supervising prosecutor overruled the above decision to terminate the criminal investigation as unsubstantiated and premature. 48. On 14 March 2012 the deputy Chechnya district prosecutor overturned the investigations department’s decision of 7 May 2008 to refuse to open a criminal case (see paragraph 45 above) as unlawful and unsubstantiated. The applicants were informed thereof. 49. On the same date (14 March 2012) the deputy Chechnya prosecutor also ordered that the criminal case file be sent to the Chechnya Investigations Committee for further investigation. The decision criticised the investigators’ failure to take basic steps and stated, amongst other things, the following: “... at the same time, the investigation established that the shooting had been aimed at them [the applicants, Mr M.R., Mr R.M. and Mr D.] and had been carried out with automatic firearms simultaneously, from the same place next to the forest; as a result [the applicants] had received gunshot wounds of varying gravity and [Mr D.] had been shot dead. Therefore, the above information provides grounds for concluding unequivocally that the unidentified person had the clear intention of killing [the applicants and Mr D.]; ... thus, the actions of the unidentified person should be deemed to constitute murder under parts 1 and 2 (subparagraph “a”) of Article 105 of the Russian Criminal Code, and the case file in respect of criminal case no. 30471 should be transferred to the Chechnya Investigations Committee for investigation and joined with criminal case no. 60012 [concerning the killing of Mr D.]. In addition, up until the present, no request for information concerning the exact place where military unit no. 546262 was stationed has been sent. Neither has any request for information concerning the possible stationing of a military unit next to Savelyevskaya in the Naurskiy District been forwarded. The military commander of the Naurskiy District, officer A.S. Kalugin, has not been questioned about the circumstances of the incident.” 50. As can be seen from the documents submitted, the investigation is still pending. (b) Proceedings against the investigators 51. On 12 April 2008 the first applicant lodged a complaint before the Naurskiy District Court (hereinafter “the District Court”) challenging the decision of 26 February 2006 to terminate the investigation. She argued, inter alia, that she had been both the target of an attempted murder and a victim of theft and asked for the case to be transferred to the Military Prosecutor’s Office for a proper investigation. 52. On 26 April 2008, shortly before the scheduled start of the first-instance court hearing (see paragraph 43 above), the prosecutor quashed the decision of 26 February 2006 and as a result, by a decision of 28 April 2008 the District Court rejected the first applicant’s complaint as groundless. 53. On 19 June 2008 each applicant lodged a complaint before the District Court challenging the investigations department’s refusal of 7 May 2008 to initiate a criminal investigation. 54. On 10 July 2008 the District Court rejected the complaints, as the impugned decision had already been quashed earlier on the same date (see paragraph 47 above). 55. On an unspecified date between January and March 2009 the applicants lodged a complaint before the District Court about the defects in the investigation and the investigators’ failure to act with expedition. 56. On 8 April 2009 the District Court examined and partly rejected their complaint. It ruled that the investigators could only be criticised for their failure to inform the applicants in a timely manner about the procedural decisions in the criminal case. The decision stated, among other things, the following: “... the court has no legal rights to impose obligations on the investigation bodies concerning the order and direction of the conduct of the investigation. ... The complaint should be allowed only in part and only in so far as the investigator ... failed to inform [the applicants] in a timely manner about the decisions taken in the case ...”. 57. On 13 May 2009 this decision was upheld by the Supreme Court of the Chechen Republic on appeal. II. RELEVANT DOMESTIC LAW AND INTERNATIONAL MATERIALS 58. For a summary of the relevant domestic law and the relevant Council of Europe documents, see Abakarova v. Russia, no. 16664/07, §§ 59-62 and §§ 68-70, 15 October 2015. THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 59. The applicants complained that the attack of 8 October 1999 constituted a violation of their right to life. They also alleged that no effective investigation of the incident had been carried out, in breach of Article 2 of the Convention, which reads as follows: “1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” A. The parties’ submissions 1. The Government 60. The Government submitted that the applicants had failed to appeal against the decision to suspend the investigation of 12 December 2000, that they had remained passive during the subsequent suspension of the proceedings and that they had lodged their complaint with excessive delay. Therefore, the applicants had failed to demonstrate due diligence and to comply with the six-month requirement. 61. In the same submission, the Government also argued that the complaint was premature, as the criminal investigation – conducted in compliance with the national legislation – was still in progress. The applicants had failed to exhaust domestic remedies, as they had not appealed before the domestic courts against the investigators’ actions and omissions. 62. The Government further argued that the complaint should be dismissed as manifestly ill-founded and unsubstantiated, as there was no proof that the perpetrators of the attack on the applicants had been State agents. 2. The applicants 63. The applicants submitted that they had complied with the six‑month rule as they had done everything possible to assist the authorities with the investigation and that there been no excessive delays in the submission of their application to the Court. 64. The applicants further alleged that the only remedy in their case – the criminal investigation – had proved to be ineffective. They stated that – contrary to the Government’s submission – they had complained about the inactivity of the investigators before the domestic courts, but to no avail. 65. The applicants alleged that the perpetrators of the attack on them had been State servicemen and that the use of lethal force against them had been unjustified. B. The Court’s assessment 1. Admissibility 66. A summary of the principles concerning compliance with the six‑month rule in cases involving violations of Article 2 allegedly perpetrated by military servicemen may be found in Kukavica v. Croatia (dec.), no. 79768/12, §§ 19-25, 2 June 2015 and, mutatis mutandis, Sultygov and Others v. Russia, nos. 42575/07, 53679/07, 311/08, 424/08, 3375/08, 4560/08, 35569/08, 62220/10, 3222/11, 22257/11, 24744/11 and 36897/11, §§ 369‑74, 9 October 2014. 67. Turning to the circumstances of the case at hand, the Court notes that the criminal investigation was pending when the applicants lodged their application with the Court and is still in progress. The applicants complained about the events in question to the authorities in July 2000 – that is to say shortly after the law-enforcement bodies in the Chechen Republic had begun functioning again – and that was not contested by the Government. Furthermore, shortly after the beginning of the investigation in October 2000, the applicants provided detailed statements to the investigators, underwent expert medical examinations and handed over the piece of evidence found by the first applicant (see paragraphs 17 and 21 above). The steps taken by the authorities must have appeared to the applicants as a promising start to the investigation into the attack on them. However, from the documents submitted it can be seen that the investigation was suspended on 12 December 2000 and that the applicants were not informed of that suspension. Further, the documents submitted indicate that – unaware that the investigation had been suspended – on several occasions in 2005 (including in July 2005) the first applicant tried to obtain information on the progress of the proceedings; the documents further indicate that that upon her requests for information and access to the investigation file proceedings in respect of the criminal case were resumed in January 2006 (see paragraphs 29-32 above). Therefore, considering that the applicants lodged an offical complaint without undue delay and that they demonstated an active stance in the proceedings, the Court does not find that the lack of progress in the criminal proceedings during their five-year suspension should be held against the applicants or interpreted as a failure on their part to demonstrate due diligence and to comply with the six-month requirement (see, by contrast, Nasirkhayeva v. Russia (dec.), no. 1721/07, 31 May 2011, and Kukavica, cited above, §§ 5-6 and 32). 68. In the light of the foregoing, the Court finds that the applicants complied with the six-month time-limit. 69. As to the Government’s non-exhaustion plea, the Court considers that the question of whether the applicants exhausted domestic remedies is closely linked to the question of whether the domestic authorities carried out an effective investigation into their allegations. These issues relate to the merits of their complaint under Article 2 of the Convention. The Court therefore decides to join these issues to the merits, which are to be examined below, and declares the complaint admissible. 2. Merits (a) Alleged violation of the right to life 70. At the outset, the Court should address the issue of the applicability of Article 2 of the Convention to the present case. It is true that the applicants did not lose their lives in the attack, but the Court has held before that the requirements of Article 2 apply to an attack where the victim survives but which, because of the lethal force used, by its very nature put his or her life at risk (see Makaratzis v. Greece [GC], no. 50385/99, §§ 49‑55, ECHR 2004‑XI; Makhauri v. Russia, no. 58701/00, § 117, 4 October 2007; Nakayev v. Russia, no. 29846/05, § 58, 21 June 2011; and Sašo Gorgiev v. the former Yugoslav Republic of Macedonia, no. 49382/06, § 29, ECHR 2012 (extracts)). Having regard to the circumstances of the attack on the applicants and the injuries sustained by them, the Court concludes that the degree and type of force used clearly bring the facts of the present case into the ambit of Article 2 of the Convention. 71. The Court reiterates that Article 2 of the Convention, which safeguards the right to life and sets out the circumstances where deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention. In the light of the importance of the protection afforded by Article 2 of the Convention, the Court must subject deprivations of life to the most careful scrutiny, particularly where deliberate lethal force is used, taking into consideration not only the actions of the State agents who actually administer the force but also all the surrounding circumstances, including such matters as the planning and control of the actions under examination (see McCann and Others v. the United Kingdom, 27 September 1995, §§ 146‑50, Series A no. 324; Andronicou and Constantinou v. Cyprus, 9 October 1997, § 171, Reports of Judgments and Decisions 1997‑VI; and Oğur v. Turkey [GC], no. 21594/93, § 78, ECHR 1999‑III). The same applies to an attack where the victim survives but which, because of the lethal force used, amounted to attempted murder (see Isayeva and Others v. Russia, nos. 57947/00, 57948/00 and 57949/00, § 171, 24 February 2005, with further references). 72. It is not disputed by the parties that on 8 October 1999 the applicants were the victim of an attack during which they were wounded and one person killed. The Government did not dispute the circumstances of the incident but denied that State servicemen had been responsible for the incident. At the same time, the Government did not put forward any alternative version of the events or suggest that the exceptions set forth in the second paragraph of Article 2 of the Convention could be applicable in the present case. The question remains as to whether the respondent State may be held responsible for this attack. 73. The Court notes in this connection that the applicants and at least two other persons, Mr R.M. and Mr M.R., were subjected to gunfire by the servicemen and that from the very beginning of the official investigation all of them were consistent in their allegation of an attack by military servicemen and provided a detailed description of the perpetrators and their military unit (see paragraphs 17, 18, 20, 22 and 23 above). As can be seen from the documents submitted, the forensic reports corroborated the applicants’ allegations (see paragraphs 25 and 26 above); further the domestic investigators must have accepted the applicants’ submissions because they attempted to take (albeit unsuccessfully) some steps to identify the military unit that had been stationed in Savelyevskaya at the relevant time (see paragraphs 21, 33, 42 and 49 above). 74. Furthermore, the Government did not deny that federal military troops had been stationed at the place in question at the material time and did not dispute the circumstances of the incident. They submitted, however, that it had been impossible to establish the identity of the perpetrators of the attack (see paragraphs 14 and 49 above) and that the allegation of the involvement of State agents in the attack was groundless. At the same time, in their submission the Government did not advance any explanation for the events or any other version of the incident. 75. The Court observes that all of the witnesses questioned by the investigators supported the applicants’ version of the events (see paragraphs 18, 23, 24, 37 and 37 above). Moreover, from the documents submitted it does not appear that the investigators made any attempts to identify other witnesses to the attack, such as the servicemen who had driven the applicants in the APC to the premises of the military unit after the wounding or the nurse who had tended their injuries (see paragraphs 17 and 22 above). 76. In such circumstances, the Court accepts the applicants’ argument that they were attacked in the circumstances described by them and considers that the applicants have made a prima facie case that State servicemen attempted to kill them on 8 October 1999 in Savelyevskaya. 77. In the absence of any justification put forward by the Government in respect of the use of lethal force by their agents, the Court finds that there has been a violation of Article 2 of the Convention under its substantive limb. (b) Alleged ineffectiveness of the investigation 78. The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, §§ 169-82, 14 April 2015). The authorities must take whatever reasonable steps they can to secure evidence concerning such an incident. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard (see Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 301, ECHR 2011). What form of investigation will achieve the purposes of Article 2 of the Convention may vary depending on the circumstances. However, whatever mode is employed, the authorities must act of their own motion once a matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures (Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 165, ECHR 2011). 79. The Government submitted that the official investigation into the incident of 8 October 1999 had been carried out in accordance with the national legislation and that the applicants could have appealed before domestic courts against the investigators’ actions and omissions, but had failed to do so. In any event, the effectiveness of the investigation had been largely undermined by the lateness of the submission of their complaint – eight months after the attack had occurred – which had impeded the investigation into the incident. 80. The Court observes that it is uncontested by the Government that at the material time and at least until July 2000 the law-enforcement bodies in the Chechen Republic were not functioning due to violent confrontations between the federal armed forces and rebel fighters (see paragraphs 7 and 12 above). There was a delay of eight months between the attack on the applicants and their lodging of an official complaint in July 2000, when the relevant authorities resumed their functioning (see paragraph 15 above). It is for the Court to assess whether the delay hampered the progress of the proceedings and affected their effectiveness. 81. The Court observes that once the complaint was lodged on 17 July 2000, a few days later – on 20 July 2000 – the police questioned the applicants, who gave detailed statements about the attack and the loss of their livestock, described the military servicemen and named the witnesses to the events. However, the criminal investigation into the incident was only initiated almost three months later, on 12 October 2000. Within the following couple of weeks, the investigators obtained from the applicants and from Mr M.R. a detailed description of the alleged culprits and the piece of evidence found by the first applicant and carried out an expert examination of the wounds the applicants had sustained as a result of the attack (see paragraphs 20-26 above). However, in December 2000, without any examination of the crime scene or the evidence obtained and without questioning key witnesses such as Mr Kh.S. (who had negotiated the applicants’ release from the military unit) or any attempt to establish the identity of the lieutenant-colonel named Vadim – the proceedings were suspended; and the applicants were not informed of that suspension. It appears that – being unaware proceedings had been suspended – the applicant lodged requests for information with the investigators and that those efforts to obtain information galvanised the investigators into resuming the suspended proceedings in January 2006; basic steps were taken, such as an examination of the crime scene (see paragraphs 29-31 above). Considering the inactivity on the part of the investigators after the initiation of the official investigation in 2000 and the fact that they took important steps only several years after the events, it is doubtful that the delay of eight months in the lodging of the complaint with the authorities could have hampered the investigation to such an extent as to undermine its overall progress. Moreover, the Court also notes that a number of important steps were taken only after the applicants spurred on the proceedings (see paragraphs 32 and 43 above) and reiterates in this connection that the authorities cannot leave it to the initiative of the next of kin to conduct an investigative procedure (see Al-Skeini and Others, cited above, § 165). 82. The Court further notes the criticism of the investigation by the supervisory authorities (see paragraphs 43 and 49 above) and the Court’s findings concerning the ineffectiveness of investigations into similar incidents in which applicants were wounded by State servicemen in the region at the material time (see, for example, Goncharuk v. Russia, no. 58643/00, § 82, 4 October 2007; Makhauri, cited above, § 125; and Umayeva v. Russia, no. 1200/03, § 81, 4 December 2008). 83. Turning to the Government’s non-exhaustion plea, the Court notes that the applicants, contrary to the Government’s submission, did lodge complaints before domestic courts challenging the investigators’ decisions (see paragraphs 51-57 above) and that their complaints were rejected as groundless in the light of the quashing of the impugned decisions just prior to their judicial examination (see paragraphs 52 and 54 above) or the inability of the court to order which steps the investigators were to take (see paragraph 56 above). In such circumstances, the remedy referred to by the Government was incapable of remedying shortcomings in the criminal investigation and was therefore ineffective. 84. The Court concludes that the applicants should be considered to have exhausted the domestic remedies available to them within the context of the criminal investigation. It therefore dismisses the Government’s preliminary objection in this respect. 85. The Court finds on the basis of what has been established above that the authorities failed to carry out an effective investigation into the circumstances of the applicants’ wounding. There has therefore been a violation of the procedural aspect of Article 2 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 86. The applicants complained of the loss of their cattle as a result of the incident of 8 October 1999. Article 1 of Protocol No. 1 to the Convention provides, in particular: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. ...” A. The parties’ submissions 87. The Government submitted that the complaint should be declared inadmissible for the applicants’ failure to exhaust domestic remedies within the criminal investigation. In their observations on the admissibility and merits of the application, the Government stated that “after the attack on [the applicants] unidentified persons had stolen the applicants’ cattle” but that the investigators had not established the identity of the perpetrators and that the applicants should have appealed before the domestic courts against the investigators’ actions. 88. The applicants argued that they had lodged complaints before the domestic courts challenging the investigators’ decisions and that the attackers had deprived them of their property, in breach of the provisions of Article 1 of Protocol No. 1 to the Convention. B. The Court’s assessment 1. Admissibility 89. The Court considers, in the light of the parties’ submissions, that the applicants’ complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. Further, the Court has already found that the Government’s objection concerning the alleged non-exhaustion of domestic remedies should be joined to the merits of the complaint (see paragraph 69 above). The complaint under Article 1 of Protocol No. 1 to the Convention must therefore be declared admissible. 2. Merits 90. As to the Government’s objection that the applicants failed to exhaust available domestic remedies, the Court points out that on several occasions the applicants reported the events of 8 October 1999 to the domestic authorities and mentioned, in particular, the seizure of their cattle by military servicemen (see paragraphs 15-18 above). In the absence of any domestic findings of State responsibility for the alleged attack on the applicants and the seizure of their cattle, the Court is not persuaded that the court remedy referred to by the Government was accessible to the applicants and would have had any prospects of success (see Betayev and Betayeva v. Russia, no. 37315/03, § 112, 29 May 2008, and Khutsayev and Others v. Russia, no. 16622/05, § 151-55, 27 May 2010). The Government’s objection concerning the non-exhaustion of domestic remedies must, therefore, be dismissed. 91. The Court further notes that the information concerning the loss of the cattle was communicated promptly to the domestic law-enforcement authorities and that the latter considered the actions of the perpetrators as theft (see paragraphs 27 and 43 above). Further, it observes that although the Government denied their responsibility for the alleged violations of the applicants’ rights under Article 1 of Protocol No. 1 to the Convention, they conceded that the perpetrators of the attack had taken the applicants’ cattle (see paragraphs 14, 27 and 43 above). In their submission to the Court, the Government neither questioned the applicants’ title to the livestock nor disputed the circumstances of its seizure, as submitted by the applicants; they only denied State responsibility for it. 92. In the light of the fact that the Court has already found above that the men who attacked the applicants on 8 October 1999 were State servicemen, it therefore finds that the loss of the applicants’ cattle was imputable to the respondent State. Accordingly, there was an interference with the applicants’ right to respect for the protection of their property. 93. In the absence of any justification on the part of the State for its agents’ actions in that regard, the Court finds that there has been a violation of the applicants’ right to protection of property, as guaranteed by Article 1 of Protocol No. 1 to the Convention. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 94. The applicants complained that they had been deprived of effective remedies in respect of the aforementioned violations, contrary to Article 13 of the Convention, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. The parties’ submissions 95. The Government contended that the applicants had had effective remedies at their disposal, as required by Article 13 of the Convention, and that the authorities had not prevented them from using those remedies. The applicants had had an opportunity to challenge any acts or omissions on the part of the investigating authorities in court. In sum, the Government submitted that there had been no violation of Article 13 of the Convention. 96. The applicants reiterated their complaint. B. The Court’s assessment 1. Admissibility 97. The Court notes that these complaints are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. 2. Merits 98. The Court reiterates that in circumstances where, as here, a criminal investigation has been ineffective and the effectiveness of any other remedy that might have existed has consequently been undermined, the State has failed in its obligation under Article 13 of the Convention (see Umayeva, cited above, § 103). 99. Consequently, there has been a violation of Article 13 in conjunction with Article 2 of the Convention. 100. As to the applicants’ complaint under Article 13 of the Convention, in conjunction with Article 1 of Protocol No. 1 to the Convention, the Court considers that given that the authorities denied involvement in the attack on the applicants and the taking of their cattle and that the domestic investigators failed to effectively investigate the matter, the applicants did not have access to any effective domestic remedies in respect of the alleged violations of their rights under Article 1 of Protocol No. 1 to the Convention. Accordingly, there has been a violation on that account. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 101. 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. Pecuniary damage 102. The first applicant claimed 480,000 Russian roubles (RUB), about 12,000 euros (EUR) for the loss of sixteen head of cattle, that is RUB 30,000 per head, and RUB 33,200,000 (about EUR 830,000) in lost profits in respect of the cattle. The second applicant claimed RUB 120,000 (about EUR 3,000) for the loss of four head of cattle, that is RUB 30,000 per head, and RUB 11,670,000 (about EUR 292,000) in lost profits in respect of the cattle. The applicants’ calculations were based on their own estimate of the value of the livestock and projections concerning potential income from breeding. No other documents, other than calculation sheets, were enclosed. 103. The Government submitted that the applicants’ claim for pecuniary damages was not supported by any documents and invited the Court to reject it as unsubstantiated. 104. Having regard to its conclusions above under Article 1 of Protocol No. 1 to the Convention and the parties’ submissions, the Court awards EUR 12,000 to the first applicant and EUR 3,000 to the second applicant in respect of pecuniary damage, plus any tax that may be chargeable on these amounts. B. Non-pecuniary damage 105. The first applicant claimed EUR 50,000 under this head. In support of her claim, she enclosed a translation of a medical statement dated 3 November 2004 certifying that she suffered from permanent disability of the third degree. The second applicant claimed EUR 40,000 under this head. 106. The Government stated that the finding of a violation would constitute adequate satisfaction in the applicants’ case, but submitted that any award should be determined on an equitable basis. 107. The Court observes that it has found a violation of the procedural and substantive limbs of Article 2 and a violation of Article 13 of the Convention. The Court accepts that the applicants have suffered non‑pecuniary damage which cannot be compensated solely by the finding of violations. It awards the first applicant EUR 30,000 and the second applicant EUR 10,000, plus any tax that may be chargeable on that amount. C. Costs and expenses 108. The applicants did not make any claim under this head. D. Default interest 109. 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 to the merits the Government’s objection as to non‑exhaustion of criminal domestic remedies and dismisses it; 2. Declares the application admissible; 3. Holds that there has been a substantive violation of Article 2 of the Convention in respect of the applicants; 4. Holds that there has been a procedural violation of Article 2 of the Convention; 5. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 6. Holds that there has been a violation of Article 13 of the Convention in respect of the alleged violations of Article 2 of the Convention and Article 1 of Protocol No. 1 to the Convention; 7. Holds (a) that the respondent State is to pay, within three months from the date on which the judgment becomes final, in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the date of settlement: (i) EUR 12,000 (twelve thousand euros), plus any tax that may be chargeable, to the first applicant in respect of pecuniary damage; (ii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, to the second applicant in respect of pecuniary damage; (iii) EUR 30,000 (thirty thousand euros), plus any tax that may be chargeable, to the first applicant in respect of non-pecuniary damage; (iv) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, to the second applicant in respect of non-pecuniary damage; (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; 8. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 4 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsLuis López GuerraRegistrarPresident

SECOND SECTION CASE OF MUSTAFA AND ARMAĞAN AKIN v. TURKEY (Application no. 4694/03) JUDGMENT STRASBOURG 6 April 2010 FINAL 06/07/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Mustafa and Armağan Akın v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Ireneu Cabral Barreto,Vladimiro Zagrebelsky,Danutė Jočienė,András Sajó,Nona Tsotsoria,Işıl Karakaş, judges,and Sally Dollé, Section Registrar, Having deliberated in private on 16 March 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 4694/03) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Turkish nationals, Mr Mustafa Akın and Mr Armağan Akın (“the applicants”), on 6 January 2003. 2. The applicants were represented by Ms Leyla Hülya Tuna, a lawyer practising in İzmir. The Turkish Government (“the Government”) were represented by their Agent. 3. The applicants alleged, in particular, that a domestic court decision, which prevented the second applicant from seeing his younger sister, had infringed their right to respect for their family life within the meaning of Article 8 of the Convention. 4. On 22 January 2008 the President of the Second 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 § 3). THE FACTS THE CIRCUMSTANCES OF THE CASE 5. The applicants were born in 1957 and 1988 respectively and live in Ödemiş. 6. On 30 September 1999 the first applicant's wife instituted divorce proceedings and asked for the custody of their two children; Armağan (the second applicant) and his younger sister Damla who was born in 1993. 7. The Ödemiş Civil Court of First Instance (“the Ödemiş Court”) granted the couple's divorce on 23 June 2000. Having regard to the “parties' incomes and the ages of the two children”, the Ödemiş Court awarded custody of Armağan to the first applicant and that of Damla to her mother. It also decided that the parents would exchange the children between 1 and 15 February every year, during the month of July and for a total period of four days during the two religious holidays. 8. On 30 November 2000 the first applicant requested the Ödemiş Court to grant an interim measure to the effect that he would have both children one weekend and his ex-wife would have them the next. This way, he argued, the children would not lose contact with each other and he would have the opportunity to spend every other weekend with both his children. This request was rejected on 19 December 2000 by the Ödemiş Court which considered that its decision concerning the custody issue had been correct. 9. The appeal lodged by the applicant against the Ödemiş Court's decision of 23 June 2000 was rejected by the Court of Cassation on 8 December 2000. A request made by the first applicant for a rectification of that decision was rejected on 8 February 2001. 10. On 11 September 2001 the first applicant brought a court case on behalf of his son and on his own behalf against his ex-wife. He claimed that although he and his son were living in the same town and very close to his ex-wife and his daughter, the decision of the Ödemiş Court had prevented the two children from seeing each other and him from spending time with both his children. This, he claimed, was causing irreversible psychological problems for the children. Even when the children saw each other in the street they were prevented from talking to each other by their mother. He requested that the children be able to see each other every weekend. He also asked the court to order his ex-wife to pay maintenance to him in respect of Armağan. 11. The Ödemiş Court refused the applicants' requests on 1 February 2002. It held that, although diligence had to be shown to satisfy the needs of the parents and their children and to improve the ties between them, ordering Damla to spend every weekend with her father would mean a continual change of environment for her and would confront her with variations in discipline. 12. The applicants appealed and referred in their appeal to a number of decisions of the Court of Cassation. According to those decisions, the applicable law and procedure required domestic courts to ensure that access arrangements do not prevent the children of divorced parents from seeing each other. The applicants maintained that ensuring this was a matter for a court of law to consider of its own motion. They also argued that the children's best interests should be given paramount importance. They drew the Court of Cassation's attention to the fact that the two siblings had not seen each other for two years. 13. The appeal was rejected by the Court of Cassation on 29 April 2002 which considered that the Ödemiş Court had “adequately examined the evidence available to it and that its conclusion had been in accordance with the applicable legislation”. A subsequent rectification request lodged by the applicants was rejected on 15 July 2002. In their request for rectification the applicants submitted that the two children had not seen each other for almost three years and that their request for rectification was their last chance of seeing each other. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 14. The applicants complained that the decision of the domestic court preventing the two children from seeing each other infringed their right to respect for their family life within the meaning of Article 8 of the Convention, the relevant part of which reads as follows: “1. Everyone has the right to respect for his ... family life,... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the protection of health or morals, or for the protection of the rights and freedoms of others.” 15. The Government contested that argument. A. Admissibility 16. 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 17. The applicants argued that the domestic court's decision amounted to an unjustified interference with their right to respect for their family life, Moreover, in reaching their decisions the domestic court had failed to observe and protect the best interests of the two children. 18. The Government were of the opinion that the decisions adopted by the domestic courts had not prevented the two siblings from seeing each other; as the children were living in the same neighbourhood, contact was possible. In any event, if the applicants' requests had been accepted by the domestic courts, Damla would have spent one weekend with her mother and the next weekend with her father. This, in the opinion of the Government, would have adversely affected her development. 19. The Court considers at the outset that there can be no doubt that a bond amounting to family life within the meaning of Article 8 § 1 of the Convention exists between the parents and the children born from their marriage-based relationship, as is the case in the present application. Such a natural family relationship is not terminated by reason of the fact that the parents separate or divorce, as a result of which the child ceases to live with one of its parents (see Cılız v. the Netherlands, no. 29192/95, § 59, ECHR 2000‑VIII and the cases cited therein). Likewise, the Court considers that family life within the meaning of the same provision also exists between the second applicant Armağan and his sister Damla, with whom he lived in the same house until the divorce of his parents in 2000 (see, inter alia, Olsson v. Sweden (no. 1), 24 March 1988, § 81, Series A no. 130). Noting, in any event, that the existence of a family life in the instant case is not disputed by the parties, the Court will proceed to examine whether the applicants' right to respect for their family life has been adequately protected. 20. The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities. There are in addition positive obligations inherent in effective “respect” for family life. However, the boundaries between the State's positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests and in both contexts the State enjoys a certain margin of appreciation (see Tuquabo-Tekle and Others v. the Netherlands, no. 60665/00, § 42, 1 December 2005). 21. In the present case the Court considers that the decision of the Ödemiş Court separating the two siblings constituted an interference with the applicants' right to respect for their family life. It not only prevented the two siblings from seeing each other, but also made it impossible for the first applicant to enjoy the company of both his children at the same time. Having regard to the facts of the present application, and in particular the fact that the domestic courts have been requested on a number of occasions by the applicants to reconsider their decisions, the Court deems it more appropriate to examine whether the respondent State complied with its positive obligation and whether its authorities acted with a view to maintaining and developing the family ties. 22. In its examination the Court will take into account its case-law under Article 8 of the Convention, which emphasises the authorities' obligation to have regard to the best interests of the child (see Maslov v. Austria [GC], no. 1638/03, § 82, 23 June 2008). Moreover, an assessment of the quality of the decision-makıng process requires the Court to establish whether the conclusions of the domestic authorities had a sufficient evidentiary basis (including, as appropriate, statements by witnesses, reports by competent authorities, psychological and other expert assessments and medical notes) and whether the interested parties, including the children themselves, were able to express their views (see, for example, Havelka and Others v. the Czech Republic, no. 23499/06, § 62, 21 June 2007; Haase v. Germany, no. 11057/02, § 97, ECHR 2004‑III (extracts)). 23. The Court notes at the outset that the custody of the second applicant and his younger sister was determined by the Ödemiş Court of its own motion; neither parent had requested the judge to make such a determination. In fact, the mother had asked the Ödemiş Court for the custody of both children (see paragraph 6 above). The Court is thus struck by the absence of reasoning justifying the separation of the children. 24. The Government submitted that the decisions adopted by the domestic courts had not prevented the two siblings from seeing each other because the children were living in the same neighbourhood and it was thus possible for them to keep in contact. The Court cannot accept that argument and considers that maintaining the ties between the children is too important to be left to the discretion and whim of their parents. Indeed, it is not disputed by the Government that the children were prevented by their mother from even speakıng to each other when they saw each other in the street. 25. On two occasions the applicants made pertinent submissions to the Ödemiş Court and argued that the access arrangements was rupturing the family ties between them and Damla (see paragraphs 8 and 10). They also submitted that the situation was causing irreversible psychological problems for the children. The Ödemiş Court was informed about the mother's uncooperative behaviour. Nevertheless, it concluded that regulating contact between the applicants and Damla in the way sought by the applicants would mean “a continual change of environment for her and would confront her with variations in discipline”. 26. The Court cannot concur with that conclusion for a number of reasons. Firstly, it notes that no explanation was given by the Ödemiş Court as to exactly how and why allowing the two siblings to spend time together every weekend would confront Damla with variations in discipline or would amount to an unacceptable change of environment, especially given the fact that they lived in the same neighbourhood. In the alternative, even if it deemed the access arrangements proposed by the applicants to be unsuitable, it would have been possible for the Ödemiş Court to consider other methods of access between the two children and thus uphold their rights under Article 8 of the Convention. 27. Neither did the Ödemiş Court seek to differentiate the case from those of the Court of Cassation's previous decisions which had been relied on by the applicants in support of their submissions and from which it appears that the established practice of the judiciary in Turkey is to ensure that contact between the children of divorced couples is maintained (see paragraph 12 above). Moreover, the Court observes that the Ödemiş Court did not only fail to seek the opinion of the children but also failed to base its decision on any evidence, such as psychological and other expert assessments, despite the fact that it was informed by the applicants that the situation had been causing them psychological problems. 28. Neither can the Court accept the Government's argument that allowing Damla to spend every other weekend with her father would have adversely affected her development, in the absence of solid evidence in support of that submission, such as the psychological or other expert assessments referred to in the preceding paragraph. At this juncture the Court reiterates that, contrary to the Government's submission, the mutual enjoyment by parents and children of each other's company constitutes a fundamental element of “family life” within the meaning of Article 8 of the Convention (see Kutzner v. Germany, no. 46544/99, § 58, ECHR 2002‑I and the cases cited therein). 29. The Court also observes with regret that, despite the importance of the case it had before it, in its decision rejecting the appeal the Court of Cassation did not address the two detailed submissions made by the applicants which included references to its own case-law concerning the need for siblings to keep in contact (see paragraphs 12-13 above) but merely held that the Ödemiş Court had “adequately examined the evidence available to it and that its conclusion had been in accordance with the applicable legislation”. 30. In the light of the foregoing, the Court considers that the domestic courts' handling of the applicants' case, during which they failed to have due regard to the best interests of the family, fell short of the State's positive obligation. There has therefore been a violation of Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLES 6 AND 14 OF THE CONVENTION AND ARTICLE 5 OF PROTOCOL No. 7 TO THE CONVENTION 31. The applicants complained that different conclusions reached by different courts were not compatible with Article 6 of the Convention. They also argued that the inability of the children to see each other, and that ordering the first applicant to pay maintenance to his ex-wife in respect of his daughter because he was a male, was discriminatory within the meaning of Article 14 of the Convention and infringed their rights under Article 5 of Protocol No. 7 to the Convention. 32. The Court has examined these complaints. Having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 33. 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 34. The applicants claimed 13,352 euros (EUR) in respect of pecuniary damage. This amount represented the first applicant's unsuccessful claim for maintenance payments from his ex-wife in respect of his son Armağan (see paragraphs 10-11 above). The applicants also claimed the sum of EUR 80,000 in respect of non-pecuniary damage. In support of this latter claim the applicants submitted medical reports showing that they had received treatment for depression. 35. The Government submitted that the claim in respect of pecuniary damage had no basis. Concerning the claim for non-pecuniary damage, the Government suggested that, after Damla reaches the age of eighteen, she will be able to have contact with other members of her family. 36. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, deciding on an equitable basis, it awards the applicants jointly the sum of EUR 15,000 in respect of non-pecuniary damage. B. Costs and expenses 37. The applicants also claimed EUR 1,796 for the costs and expenses incurred before the domestic courts and EUR 5,882 for the fees of their legal representative before the Court. In support of their claims the applicants submitted various bills and a fee agreement with their representative. 38. The Government considered that the expenses relating to the domestic proceedings could not be claimed under this head. As for the applicants' claim for their costs and expenses before the Court, the Government submitted that they were not supported by any documentary evidence. 39. 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 response to the Government's argument concerning the costs and expenses relating to the proceedings at the national level, the Court reiterates that, if it finds that there has been a violation of the Convention, it may award the applicant the costs and expenses incurred before the national courts for the prevention or redress of the violation (see Société Colas Est and Others v. France, no. 37971/97, § 56, ECHR 2002-III, and the cases cited therein). In the present case the applicants brought the substance of their Convention rights, that is their right to respect for their family life, to the attention of both the first-instance court and the appeal court. In the light of the foregoing, the Court considers that the applicants have a valid claim in respect of part of the costs and expenses incurred at the national level. 40. Regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,500, covering costs under all heads. C. Default interest 41. 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 1. Declares the complaint under Article 8 of the Convention admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 8 of the Convention; 3. Holds (a) that the respondent State is to pay the applicants jointly, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, and EUR 2,500 (two thousand five hundred euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicants, to be converted into Turkish liras at the rate applicable on 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; 4. Dismisses the remainder of the applicants' claim for just satisfaction. Done in English, and notified in writing on 6 April 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Sally DolléFrançoise TulkensRegistrarPresident

THIRD SECTION CASE OF VRBANEC v. SLOVENIA (Application no. 33549/02) JUDGMENT STRASBOURG 1 June 2006 FINAL 01/09/2006 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 Vrbanec v. Slovenia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrJ. Hedigan, President,MrB.M. Zupančič,MrL. Caflisch, MrV. Zagrebelsky,MrE. Myjer,MrDavid Thór Björgvinsson,MrsI. Ziemele, judges,and Mr V. Berger, Section Registrar, Having deliberated in private on 11 May 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 33549/02) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mrs Marija Vrbanec (“the applicant”), on 11 June 2001. 2. The applicant was represented by the Verstovšek lawyers. The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič, State Attorney-General. 3. The applicant alleged under Article 6 § 1 of the Convention that the length of the proceedings before the domestic courts to which she was a party was excessive. In substance, she also complained about the lack of an effective domestic remedy in respect of the excessive length of the proceedings (Article 13 of the Convention). 4. On 7 September 2004 the Court decided to communicate the complaints concerning the length of the proceedings and the lack of remedies in that respect to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time. 5. In accordance with Article 36 § 1 of the Convention and Rule 44 of the Rules of Court, the Registrar informed the Croatian Government of their right to submit written comments. On 20 February 2006 they informed the Court that they did not wish to exercise their right to intervene in the instant case. THE FACTS 6. The applicant was born in 1964 and lives in Nedelišče. 7. On 29 November 1981 the applicant was injured in a car accident which was caused by V.D. 8. On 16 May 1988 the applicant instituted civil proceedings against V.D. in the Celje Basic Court, Velenje Unit (Temeljno sodišče v Celju, Enota v Velenju), seeking damages for the injuries sustained. On 24 March 1994 the court upheld the applicant’s claim in part. On 28 June 1994 the Convention entered into force with respect to Slovenia. On 29 June 1994, forward to the applicant’s appeal of 20 April 1994, the Celje Higher Court (Višje sodišče v Celju) quashed the first-instance decision and remitted the case for re-examination. The decision was served on the applicant on 17 August 1994. 9. Further to the reorganisation of the Slovenian judicial system, the case was transferred to the Celje District Court (Okrajno sodišče v Celju) on 30 December 1994. On 13 February 1997 the judge to whom the case had been assigned was promoted and the case was consequently reassigned to a new judge. Between 6 September 1994 and 2 June 1999 the applicant lodged three preliminary written submissions and/or adduced evidence. A hearing was held on 3 June 1999. On 30 June 1999 the court delivered a judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 7 December 1999. 10. On 22 December 1999 V.D. appealed to the Celje Higher Court (Višje sodišče v Celju). On 4 July 2001 the court dismissed the appeal. The judgment was served on the applicant on 29 August 2001. THE LAW I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION 11. The applicant complained about the excessive length of the proceedings. She relied on Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 12. In substance, the applicant further complained that the remedies available for excessive legal proceedings in Slovenia were ineffective. Article 13 of the Convention reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 13. The Government pleaded non-exhaustion of domestic remedies. 14. The applicant contested that argument, claiming that the remedies available were not effective. 15. The Court notes that the present application is similar to the cases of Belinger and Lukenda (Belinger v. Slovenia (dec.), no. 42320/98, 2 October 2001, and Lukenda v. Slovenia, no. 23032/02, 6 October 2005). In those cases the Court dismissed the Government’s objection of non-exhaustion of domestic remedies because it found that the legal remedies at the applicant’s disposal were ineffective. The Court recalls its findings in the Lukenda judgment that the violation of the right to a trial within a reasonable time is a systemic problem resulting from inadequate legislation and inefficiency in the administration of justice. 16. As regards the instant case, the Court finds that the Government have not submitted any convincing arguments which would require the Court to distinguish it from its established case-law. 17. The Court further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Article 6 § 1 18. The period to be taken into consideration began on 28 June 1994, the day when the Convention entered into force with respect to Slovenia, and ended on 29 August 2001, the day the Celje Higher Court’s judgment was served on the applicant. Given that the case was remitted for re-examination on 29 June 1994, the Court will consider that the proceedings lasted about seven years and two months for two levels of jurisdiction. Nonetheless, in order to assess the reasonableness of the length of time in question, the Court will have regard to the stage reached in the proceedings on 28 June 1994 (see, among other authorities, Humen v. Poland [GC], no. 26614/95, § 59, 15 October 1999). 19. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 20. Having examined all the material submitted to it, and having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable-time” requirement. There has accordingly been a breach of Article 6 § 1. 2. Article 13 21. The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI). It notes that the objections and arguments put forward by the Government have been rejected in earlier cases (see Lukenda, cited above) and sees no reason to reach a different conclusion in the present case. 22. Accordingly, the Court considers that in the present case there has been a violation of Article 13 on account of the lack of a remedy under domestic law whereby the applicant could have obtained a ruling upholding her right to have her case heard within a reasonable time, as set forth in Article 6 § 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 23. 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 24. The applicant claimed 22,500 euros (EUR) in respect of non-pecuniary damage. 25. The Government contested the claim. 26. The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards her EUR 4,800 under that head. B. Costs and expenses 27. The applicant also claimed approximately EUR 1,450 for the costs and expenses incurred before the Court. 28. The Government argued that the claim was too high. 29. According to the Court’s case-law, an applicant is entitled to reimbursement of her costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. The Court also notes that the applicant’s lawyers, who also represented the applicant in Lukenda (cited above), lodged nearly 400 applications which, apart from the facts, are essentially the same as this one. Accordingly, 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 applicant the sum of EUR 1,000 for the proceedings before the Court. C. Default interest 30. 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 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 13 of the Convention; 4. 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 4,800 (four thousand eight hundred euros) in respect of non-pecuniary damage and EUR 1,000 (one thousand euros) in respect of costs and expenses, plus any tax that may be chargeable; (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 applicant’s claim for just satisfaction. Done in English, and notified in writing on 1 June 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Vincent BergerJohn HediganRegistrarPresident

FOURTH SECTION CASE OF ELORANTA v. FINLAND (Application no. 4799/03) JUDGMENT STRASBOURG 9 December 2008 FINAL 09/03/2009 This judgment may be subject to editorial revision. In the case of Eloranta v. Finland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Giovanni Bonello,David Thór Björgvinsson,Ján Šikuta,Päivi Hirvelä,Ledi Bianku,Nebojša Vučinić, judges,and Lawrence Early, Section Registrar, Having deliberated in private on 18 November 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 4799/03) against the Republic of Finland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Finnish national, Ms Vera Eloranta (“the applicant”), on 24 January 2003. 2. The applicant was represented by Mr R. Virtanen, a lawyer practising in Turku. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. 3. On 20 December 2007 the President of the Fourth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1939 and lives in Masku. 5. On 16 February 1980 the applicant was injured in a car accident. On 15 October 1980 the Turku City Court (raastuvanoikeus, rådstuvurätten) rejected her request to increase the amount of compensation she had already received from an insurance company. She unsuccessfully appealed against the decision to the Turku Court of Appeal (hovioikeus, hovrätten) and subsequently the Supreme Court (korkein oikeus, högsta domstolen), which gave their decisions on 13 May and 5 October 1981 respectively. 6. Subsequently, another insurance company, as well as the Social Insurance Institution (kansaneläkelaitos, folkpensionsanstalten) granted the applicant a pension on grounds of her disability. 7. On 14 September 1993 the Supreme Court partly annulled the above court decisions in the light of new medical evidence presented by the applicant. On 1 December 1993 she filed a new claim for compensation alleging that she had become permanently unfit for work due to her physical injuries and a traumatic stress reaction caused by the accident. On 8 November 1994 the Turku District Court (käräjäoikeus, tingsrätten) ordered the other party to the accident and the insurance company to pay the applicant approximately 1,500,000 Finnish marks (FIM), mainly for loss of income. 8. On 9 March 1995 the police started a pre-trial investigation, suspecting the applicant of, inter alia, multiple fraud. The applicant was questioned as a suspect for the first time on 19 April 1995. 9. On 19 January 1996 the public prosecutor brought charges against the applicant in the Turunseutu District Court, which held its first session on 4 March 1996. In addition to written evidence, the court received testimony from several witnesses in the course of the proceedings. 10. On 8 May 2000 the court concluded, inter alia, that the applicant had continued to work as an entrepreneur in the cleaning trade after the accident, although she was receiving a pension at that time. Furthermore, she had given false information to the tax authorities about her business activities and had falsely claimed to be disabled in order to obtain financial benefits. She was convicted of several offences including, inter alia, tax fraud, an accounting offence and aggravated fraud and was sentenced to one year and ten months’ unconditional imprisonment. She was also ordered to pay damages. 11. The applicant appealed against the judgment to the Turku Court of Appeal claiming, inter alia, that the District Court had unlawfully relied on witness statements given to the police because some of the witnesses had refused to testify in court. The applicant had not been able to put questions to these witnesses. The court had also relied on the applicant’s own pre-trial statement. Furthermore, she claimed that the court had made an assessment of her medical condition on the basis of insufficient evidence. 12. On 28 June 2002 the Court of Appeal, having held an oral hearing, upheld the judgment specifying, however, its own conclusions on the facts regarding the dates of the offences and modifying the amount of damages. The court received testimony from 20 witnesses as well as from the applicant herself. In its reasons it stated, inter alia, that the medical evidence presented to the court did not have any relevance to the assessment of the applicant’s criminal liability, since other evidence had shown that she had been working as an entrepreneur and cleaner at the relevant time. The Court of Appeal, unlike the District Court, did not rely on statements given to the police as evidence. 13. On 1 April 2003 the Supreme Court refused the applicant leave to appeal. II. RELEVANT DOMESTIC LAW 14. The Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken) provides that a statement in a pre-trial investigation report may not, as a rule, be admitted as evidence in court. The court may exceptionally admit such a statement as evidence, if the witness in question cannot be questioned before the court (Chapter 17, article 11; Act no. 690/1997). A witness must give testimony orally before the court. Oral evidence given during a pre-trial investigation may be read out in court only if the witness in question retracts an earlier statement or states that he or she is unable or unwilling to testify before the court (Chapter 17, article 32; Act no. 571/1948). THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION 15. The applicant complained under Article 6 of the Convention that the length of the proceedings had been incompatible with the “reasonable time” requirement. She also complained that the proceedings had been unfair as a whole. In particular, she claimed that the presumption of innocence had been violated by the police, as the pre-trial investigation report had contained assertions of her guilt. The police had also ignored facts favourable to her defence and had failed to include them in the report. She further asserted that the District Court had unlawfully, and almost solely, relied on pre-trial statements as evidence and that she had been denied the opportunity to obtain the attendance of all relevant witnesses on her behalf and to examine witnesses against her. She also complained about the District Court’s assessment of the medical evidence. She further maintained that several authorities dealing with her case, as well as her own representative, had been partial, since they had connections with insurance companies. She finally asserted that several documents containing information about her private life had been made public in the course of the proceedings. Article 6 reads insofar as relevant: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by an ... impartial tribunal ... ... 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 3. Everyone charged with a criminal offence has the following minimum rights: ... (b) to have adequate time and facilities for the preparation of his defence; ... (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 16. The Court notes that the complaint about the length of the criminal proceedings 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. 17. As to the complaint concerning the presumption of innocence, the Court observes that the summary of the pre-trial investigation report appears to have contained assertions of the applicant’s guilt. However, the main reason for drawing up such a report was to enable the public prosecutor to decide whether or not to bring charges on the basis of sufficient evidence of her guilt. As a rule, the report is not available to the public until the trial has begun or the prosecutor has decided not to bring charges. The summary part of the report is not used as evidence. Taking into account the context in which the assertions were made, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 18. The Court recalls that the admissibility of evidence is primarily a matter for regulation by national law and, as a rule, it is for the national courts to assess the evidence before them. The Court’s task is to ascertain whether the proceedings considered as a whole, including the way in which the evidence was taken, were fair. 19. It is a fundamental aspect of the right to a fair trial that criminal proceedings should be adversarial and that there should be equality of arms between the prosecution and defence. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and evidence adduced by the other party (see Rowe and Davis v. the United Kingdom [GC], no. 28901/95, § 60, ECHR 2000-II). 20. All the evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument. As a rule, a conviction should not be based on the testimony of a witness whom the accused has not had an opportunity to challenge and question. However, Article 6 does not grant the accused an unlimited right to secure the appearance of witnesses in court. It is normally for the national courts to decide whether it is necessary or advisable to hear a particular witness (see, among other authorities, Laukkanen and Manninen v. Finland, no. 50230/99, § 35, 3 February 2004). 21. A conviction should not be based either solely or to a decisive extent on statements which the defence has not been able to challenge (see, mutatis mutandis, Doorson v. the Netherlands, 26 March 1996, § 76, Reports of Judgments and Decisions 1996-II). 22. As to the allegation that the police had ignored facts favourable to the applicant at the pre-trial stage, the Court notes that, even if that had been the case, the applicant still had ample opportunity to produce evidence on her own behalf before the courts in the course of adversarial proceedings. This complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 23. As regards the complaint about the District Court having relied on earlier statements as evidence, the Court observes that the said court had relied on at least four statements included in the pre-trial investigation report, one of which was the applicant’s. It would appear from the documents that the applicant had in court, at least partially, retracted her earlier statement. The case materials also suggest that the other statements were admitted as evidence because the witnesses in question had been unwilling to testify before the court. The Court does not have to decide whether those statements played a decisive role in the applicant’s conviction. It notes in this connection that, unlike the District Court, the Court of Appeal, which also held an oral hearing, did not rely on the above-mentioned statements as evidence. Any possible disadvantages caused to the applicant by the District Court’s decision to admit and rely on those statements as evidence were, therefore, remedied in the appellate proceedings. In these circumstances, this complaint must also be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 and 4 of the Convention. 24. As to the complaints about the applicant not being given the opportunity to obtain the attendance of all relevant witnesses or to examine witnesses against her and the District Court’s allegedly incorrect assessment of the medical evidence, the Court would make the following observations. In her letter of appeal to the Court of Appeal, the applicant requested that 24 persons be heard. The court received testimony from 17 of them. Most of the witnesses who were not heard before the court were independent medical experts who normally, under the national legislation, only give a written statement but are not heard in person. However, two medical experts, called by the applicant, were heard before the Court of Appeal. Unlike the District Court, the Court of Appeal, which gave reasons for its decision, did not regard the medical evidence as relevant in deciding the matter. In these circumstances the Court cannot conclude that the adversarial nature of the proceedings was disrespected or that the national courts exceeded their margin of appreciation in the admission and assessment of evidence. It follows that these complaints must be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 and 4 of the Convention. 25. The applicant’s allegations about partiality are unsubstantiated and must be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 and 4 of the Convention. 26. As regards the complaint about the alleged public disclosure of documents containing information about the applicant’s private life, the Court notes that she has failed to establish that she had raised this complaint at the domestic level. Consequently, it must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. B. Merits of the length of proceedings complaint 27. The period to be taken into consideration began on 19 April 1995, when the applicant was first questioned by the police, and ended on 1 April 2003 when the Supreme Court refused leave to appeal. It thus lasted almost eight years for three levels of jurisdiction. 28. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II). 29. The Government pointed out that the case was somewhat complex. The police had had to prepare several pre-trial investigation reports which had been transferred to the prosecutor on different dates. The proceedings before the District Court had concerned two defendants and six plaintiffs, and at that stage the case file already consisted of 2,250 pages. The District Court’s hearing had comprised 19 sessions. In the Court of Appeal several witnesses had also been heard and over 150 written items of evidence presented. The Court takes note of these observations, but considers that they do not justify the entire length of the proceedings, notwithstanding that the facts of the case were disputed. 30. The Government further submitted that on one occasion the applicant had requested an adjournment of the pre-trial investigation and that the hearing of the case had to be adjourned on another occasion, inter alia, for the purpose of summoning her to the court. These adjournments took up some two months. Moreover, the examination of the case had been adjourned 15 times. Three of these adjournments had been requested by the applicant. On one occasion the case was adjourned in order to hear a witness called by her. These adjournments altogether took up some eight months. Other parties had requested adjournments on five occasions. In the Government’s understanding, the applicant had not objected to these requests. The remaining adjournments had been requested by the prosecutor. The delivery of the District Court’s decision had been postponed three times in order to await the delivery of judgment in the civil proceedings concerning the applicant’s disability pension. These postponements, which altogether took up over a year and ten months, had been made twice on the initiative of the prosecutor and another party and once on the initiative of the court. The applicant had not objected to the postponements. 31. In the Government’s view, the proceedings in the District Court had been adjourned at the applicant’s request or as the direct result of her actions for a total period of some two years and eight months, including the postponement of the delivery of the court’s decision. 32. In conclusion, the Government asserted that there were no unnecessary delays in the proceedings caused by the authorities. The conduct of the parties, including the applicant, contributed to a significant extent to the length of the proceedings. She had not claimed in her requests for leave to appeal to the Supreme Court that the proceedings had lasted too long. In view of the requirement of ensuring the proper administration of justice, a thorough examination of the case was necessary. In the particular circumstances of the case, it had to be concluded that the proceedings were conducted within a reasonable time in accordance with Article 6 § 1 of the Convention. 33. The Court notes that the total length of the proceedings cannot be explained by the conduct of the applicant alone. The District Court proceedings alone lasted some four years and two months. While it is true that some delays resulted from the applicant’s requests for adjournment, the Government have not persuaded the Court that the postponement of the delivery of the District Court’s judgment pending the resolution of parallel civil proceedings, which resulted in a delay of one year and ten months, was necessary. Furthermore, the Government have not offered any explanation for the length of the proceedings before the Court of Appeal, which took up more than two years. While the Government stressed that the applicant had not objected to the adjournments requested by other parties or to the postponement of the delivery of judgment, the Court does not find that this can be regarded as conduct either contributing to the length of the proceedings or an implied renunciation of her right to a fair trial within a reasonable time. 34. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to that in the present case (see Pélissier and Sassi, cited above). 35. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 36. 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 37. The applicant claimed 250,000 euros (EUR) in respect of pecuniary damage and EUR 135,340 in respect of non-pecuniary damage. 38. The Government contested these claims stating, firstly, that there was no causal link between the alleged violation of Article 6 of the Convention and any pecuniary damage claimed by the applicant. As to non-pecuniary damage, the Government considered the applicant’s claim exorbitant as to quantum. In the event that the Court were to find a violation of Article 6 of the Convention, compensation for non-pecuniary damage should not exceed EUR 3,000. 39. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. As regards non-pecuniary damage, having regard to the circumstances of the case and deciding on an equitable basis, the Court awards the applicant EUR 3,300. B. Costs and expenses 40. The applicant did not submit a claim for costs and expenses. C. Default interest 41. 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 1. Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. 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 3,300 (three thousand three hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 9 December 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyNicolas BratzaRegistrarPresident

FIRST SECTION CASE OF VOLKOVA AND BASOVA v. RUSSIA (Application no. 842/02) JUDGMENT STRASBOURG 5 July 2007 FINAL 31/03/2008 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 Volkova and Basova v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrL. Loucaides,MrsN. Vajić,MrA. Kovler,MrK. Hajiyev,MrD. Spielmann,MrS.E. Jebens, judges,and Mr S. Nielsen, Section Registrar, Having deliberated in private on 14 June 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 842/02) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Russian nationals, Mrs Anna Ivanovna Volkova and Mrs Taisiya Timofeyevna Basova (“the applicants”), on 3 July 2001. 2. The applicants were represented by Mr I.V. Novikov, a lawyer practising in Novosibirsk. The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights. 3. The applicants alleged, in particular, that the domestic judicial authorities had reconsidered a judgment given in their favour having improperly used the procedure for reconsidering judgments on the basis of newly discovered circumstances. 4. By a decision of 17 November 2005 the Court declared the application partly admissible. 5. The Government, but not the applicants, filed further written observations (Rule 59 § 1). The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine), the applicants replied in writing to the Government's observations. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicants were born in 1928 and 1936 respectively and live in Novosibirsk. 7. The applicants receive old-age pensions. The Law of 21 July 1997 on the Calculation and Upgrading of State Pensions (“the Pensions Act”) introduced, from 1 February 1998 onwards, a new method for calculating pensions. The idea behind this method, based on what is known as an “individual pensioner coefficient”, was to link the pension to the pensioner's previous earnings. 8. The authority in charge of the applicants' pension, the Pension Fund Agency of the Zheleznodorozhniy District of Novosibirsk (“the Agency”), fixed the applicants' coefficient at 0.525. The applicants challenged the Agency's decision in the Zheleznodorozhniy District Court of Novosibirsk. They argued that their coefficient should be 0.7. 9. On 13 August 1999 the District Court found for the applicants, considering that the Agency had misinterpreted the Pensions Act. In particular, it held as follows: “The opinion of [the Agency] ... is unfounded because Article 4 [of the 1997 Pensions Act] specifically indicates that the individual pensioner coefficient ... is fixed at the rate of 0.7. [The Agency] has no grounds to interpret this provision of the law arbitrarily or not to enforce it.” The District Court decided that the Agency was to recalculate the applicants' pensions using a coefficient of 0.7 from 1 February 1998. 10. The Agency appealed against the judgment. On 19 October 1999 the Novosibirsk Regional Court upheld the judgment, which became enforceable on the same day. The judgment was never executed. 11. On 29 December 1999 the Ministry of Labour and Social Development (“the Ministry”) issued an Instruction on the “Application of Limitations” established by the Pensions Act (“the Instruction”). The Instruction clarified how to apply the Pensions Act. 12. Some time thereafter a group of individuals challenged the Instruction before the Supreme Court of the Russian Federation. On 24 April 2000 the Supreme Court dismissed the complaint. It found that, contrary to what the complainants had suggested, the Ministry of Labour had not acted ultra vires in issuing the Instruction, and that the Ministry's interpretation of the Pensions Act had been correct. On 25 May 2000 the Cassation Division of the Supreme Court upheld this judgment on appeal. 13. On 30 August 2000 the Agency lodged an application with the District Court for the reconsideration of the applicants' case owing to newly discovered circumstances. 14. On 7 February 2001 the District Court examined the Agency's request. It noted that the Instruction had been upheld by the Supreme Court and held as follows: “As it can be seen from [the Instruction], the decision of the RF Supreme Court of 24 April 2000 and the decision of the Cassation Division of the RF Supreme Court of 25 May 2000, the limiting coefficient of 0.7, which was established by [the Pensions Act], ... does not apply to [an 'individual pensioner coefficient']. The existence of the interpretation [of the Pensions Act] by the Ministry of Labour constitutes a significant circumstance. In accordance with ...article 333 of [the CCivP] the ground for reconsideration of judgments ... on the basis of newly discovered circumstances shall be a significant circumstance which was not and could not have been known to a complainant. ... Therefore there are grounds for reconsideration of the judgment of the district court of 13 August 1999 owing to newly discovered circumstances.” The court noted that the Agency's application was not time barred. 15. In a decision of 7 February 2001 the District Court granted the Agency's application, under Article 337 of the Code of Civil Procedure, and quashed the judgment of 13 August 1999, as upheld on 19 October 1999. 16. As a result of the fresh examination of the case the District Court delivered a judgment of 27 February 2001 in which it relied on the Instruction and rejected the applicants' claims in full. The applicants appealed against the judgment. 17. From 1 May 2001, following changes to the pension regulations, the applicants' pensions were calculated based on coefficients of 0.816 and 0.804 respectively. 18. On 21 June 2001 the Novosibirsk Regional Court dismissed the applicants' appeal and upheld the judgment of 27 February 2001. II. RELEVANT DOMESTIC LAW AND PRACTICE 19. The Code of Civil Procedure of 1964 (“CCivP”), in force at the material time, provided as follows: Article 333. Grounds for reconsideration “[Judgments] which have come into force may be reconsidered on the basis of newly discovered circumstances. The grounds for reconsideration ... shall be as follows: 1. significant circumstances which were not and could not have been known to the party who applies for reconsideration; ... 4. cancellation of a court [judgment] or of another authority's decision which served as legal basis for the [judgment] in question.” Article 334. Lodging of application “... [An application for reconsideration of a [judgment] owing to newly discovered circumstances] shall be lodged within three months after the discovery of the circumstances.” Article 337. Court decision on reconsideration of a case “After examination of an application for reconsideration of a [judgment] owing to newly discovered circumstances, the court may either grant the application and quash the [judgment], or dismiss the application. The court decision by which an application for reconsideration of a [judgment] owing to newly discovered circumstances is granted shall not be subject to appeal. ...” 20. On 2 February 1996 the Constitutional Court of the Russian Federation adopted a ruling concerning certain provisions of the Code of Criminal Procedure (“CCrP”). In that ruling the Constitutional Court decided that Article 384 of the CCrP (“Grounds for reconsideration of a [criminal] case on the basis of newly discovered circumstances”, which was in many respects similar to Article 333 of the CCivP) was unconstitutional in that it limited the grounds for the reopening of a criminal case to situations of “newly discovered circumstances”. In that ruling the Constitutional Court suggested that this provision of the CCrP prevented rectification of judicial errors and miscarriages of justice. In its ruling of 3 February 1998 the Constitutional Court came to the conclusion that Article 192 § 2 of the Code of Commercial Procedure was unconstitutional in so far as it had served as a basis for the dismissal of applications for reconsideration of judgments of the Presidium of the Supreme Commercial Court, where the judgment had been delivered as a result of a judicial error which had not been and could not have been established earlier. 21. The Instruction of the Ministry of Labour and Social Development of 29 December 1999 on the “Application of Limitations” established by the Pensions Act was registered by the Ministry of Justice on 31 December 1999 and became binding in February 2000, ten days after its official publication. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 1 OF PROTOCOL No. 1 22. The applicants complained that the State had reconsidered a final judgment in their favour. The Court will examine this complaint under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. Article 6 § 1 of the Convention, as far as relevant, reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” Article 1 of Protocol No. 1 reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. The parties' submissions 1. The Government 23. The Government submitted that the complaint was incompatible with the Convention ratione materiae, as it did not concern “civil rights and obligations” or “property” or, alternatively, that there had been no breach of Article 6 § 1 or Article 1 of Protocol No. 1 on account of the reconsideration of the case concerning the applicants' pension. (a) Applicability of Article 6 § 1 24. The Government stressed that the judgment of 13 August 1999 had not determined any definite amount due to the applicants, but had rather established how the pensions should be calculated. In their words, “the subject-matter of the dispute was not the applicants' claim to award [them] monetary sums, but the matter of lawfulness ... of application of the Instruction”. According to the Government, the dispute at issue was not a civil one because “the determination of the order of calculation of pensions belongs to the realm of public law”. They referred to Schouten and Meldrum v. the Netherlands (judgment of 9 December 1994, Series A no. 304, § 50), Pančenko v. Latvia, ((dec.), no. 40772/98, 28 October 1999), and Kiryanov v. Russia ((dec.), no. 42212/02, 9 December 2004). (b) Applicability of Article 1 of Protocol No. 1 25. The Government contested that the pension awarded to the applicants by virtue of the judgment of 13 August 1999 constituted their “possession”. They noted that in the case of Pravednaya v. Russia (no. 69529/01, 18 November 2004) the Court had regarded a judicial award of that type as the applicant's “possession”. In that case the Court had ordered the restoration of the initial judgment in the applicant's favour and the payment of the pension in the amount established by that judgment. However, in the Government's view, such an approach created confusion. If the sum awarded by a court was a pensioner's “possession”, it should not be affected by any subsequent increase in pension rates. Therefore, in Pravednaya the applicant would have had to return the money “excessively” paid to her by virtue of the later changes in the legislation on State pensions. They concluded that in order to avoid such situations the Court should not regard the pension amounts awarded by the domestic courts as the claimants' “possessions” within the meaning of Article 1 of Protocol No. 1. (c) Merits of the complaint 26. The Government submitted that it was the Supreme Court's decision upholding the Instruction which had constituted a newly discovered circumstance and warranted the reopening of the case within the meaning of Article 333 of the CCivP. This was a major difference with the Pravednaya case (cited above). The Government explained that to consider the Supreme Court's decision as a newly discovered circumstance was in line with the position of the Constitutional Court set out in its decisions of 2 February 1996 and 3 February 1998. In another decision of 14 January 1999 the Constitutional Court had held that court judgments might be reconsidered if relevant provisions of law had been found unconstitutional. 27. The Government further submitted that the Instruction had been issued after the initial judgment had become final, so the Agency could not have relied on it in the appeal proceedings. This was another difference with the Pravednaya case, where the Instruction had been adopted while the proceedings were still pending. Therefore, the Agency's request to reopen the case had not been an “appeal in disguise” but a conscientious effort to make good a miscarriage of justice. 28. The Government observed that the reopening of the case had been lawful and complied with the procedure prescribed by law, the request having been lodged within the statutory three-month time-limit. 29. The Government concluded that the reopening of the case had not infringed the principle of legal certainty as guaranteed by Article 6 § 1 nor had it interfered with the applicants' property rights as guaranteed by Article 1 of Protocol No. 1. 2. The applicants 30. The applicants disagreed with the Government's arguments. They pointed out that the Instruction had not existed at the time when their case had been examined in court and when the judgment of 13 August 1999 had been delivered. Therefore, neither the Instruction nor the subsequent Supreme Court decision, which addressed the lawfulness of the Instruction, could be considered a newly discovered circumstance within the meaning of Article 333 of the CCivP. The Instruction had had no retrospective effect and could not have applied to situations which had arisen before its adoption. Furthermore, the Agency had missed the time-limit for reopening a case: it had applied to the court more than seven months after the Instruction had been issued, instead of three months as required by the civil procedure. Therefore, the applicants' case had been reopened in breach of the domestic law. The Government's reference to the Constitutional Court's decision of 14 January 1999 was irrelevant because the Pensions Act had never been declared unconstitutional. 31. The applicants further noted that it was clearly established by the European Court that Article 6 applied to court proceedings concerning the right to a State pension. They referred to a number of judgments and decisions including Francesco Lombardo v. Italy (judgment of 26 November 1992, Series A no. 249-B), Androsov v. Russia (no. 63973/00, 6 October 2005), Vasilyev v. Russia ((dec.), no. 66543/01, 1 April 2004), and Pravednaya v. Russia ((dec.), no. 69529/01, 25 September 2003). They pointed out that in Pravednaya the dispute had concerned the application of a specific pension law to the applicant's case, and not the general system of pension calculation. B. The Court's assessment 1. Applicability of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 32. The Court notes that the dispute as to the increase of the applicants' old-age pension entitlement was one of a pecuniary nature and undeniably concerned a civil right within the meaning of Article 6 § 1 of the Convention (see Schuler-Zgraggen v. Switzerland, judgment of 24 June 1993, Series A no. 263, p. 17, § 46; Massa v. Italy, judgment of 24 August 1993, Series A no. 265‑B, p. 20, § 26; Süßmann v. Germany, judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1170, § 42; and, as a recent authority, Tričković v. Slovenia, no. 39914/98, § 40, 12 June 2001). 33. It reiterates that Article 1 of Protocol No. 1 does not guarantee, as such, the right to an old-age pension or to any social benefit in a particular amount (see, for example, Aunola v. Finland (dec.), no. 30517/96, 15 March 2001). However a “claim” – even concerning a pension – can constitute a “possession” within the meaning of Article 1 of Protocol No. 1 if it is sufficiently established to be enforceable (see Stran Greek Refineries v. Greece, judgment of 9 December 1994, Series A no. 301, § 59). The judgment of the Zheleznodorozhniy District Court of 13 August 1999, which became final after it had been upheld on appeal by the Novosibirsk Regional Court on 19 October 1999, provided the applicants with an enforceable claim to receive an increased pension based on a coefficient of 0.7. 34. The Court notes that the objections and arguments put forward by the Government were rejected in the earlier similar case of Bulgakova v. Russia (no. 69524/01, §§ 27-32, 18 January 2007) and sees no reason to reach a different conclusion in the present case. 35. Accordingly, the Court considers that in the present case the applicants' dispute concerned a civil right within the meaning of Article 6, and that the applicants had a “possession” within the meaning of Article 1 of Protocol No. 1. 2. Alleged violation of Article 6 § 1 36. The Court reiterates that the right to a fair hearing before a tribunal as guaranteed by Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention, which, in its relevant part, declares the rule of law to be part of the common heritage of the Contracting States. One of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, among other things, that where the courts have finally determined an issue, their ruling should not be called into question (see Brumărescu v. Romania, judgment of 28 October 1999, Reports 1999‑VII, § 61). This principle underlines that no party is entitled to seek a review of a final and binding judgment merely for the purpose of obtaining a rehearing and a fresh determination of the case. Review by higher courts should not be treated as an appeal in disguise, and the mere possibility of there being two views on the subject is not a ground for re-examination. A departure from that principle is justified only when made necessary by circumstances of a substantial and compelling character (see Ryabykh v. Russia, no. 52854/99, § 52, ECHR 2003-IX). 37. The Court examined the quashing of a final judgment on the ground of newly discovered circumstances in Pravednaya (cited above), a case with a similar set of facts, where it held: “27. The procedure for quashing of a final judgment presupposes that there is evidence not previously available through the exercise of due diligence that would lead to a different outcome of the proceedings. The person applying for rescission should show that there was no opportunity to present the item of evidence at the final hearing and that the evidence is decisive. Such a procedure is defined in Article 333 of the CCivP and is common to the legal systems of many member States. 28. This procedure does not by itself contradict the principle of legal certainty in so far as it is used to correct miscarriages of justice. ...” 38. In the case of Pravednaya the Instruction of the Ministry of Labour had been issued between the first-instance and appeal judgments. The relevant pension agency had not relied on the Instruction in the appeal proceedings but had only done so later, in their request for the judgment, then final, to be set aside owing to “newly discovered circumstances”. The Court considered that the agency's request had been an “appeal in disguise” and found that by granting it the court had infringed the principle of legal certainty and the applicant's “right to a court” under Article 6 § 1 of the Convention (see Pravednaya, cited above, §§ 29-34). 39. The present case differs from Pravednaya in that the Instruction of the Ministry of Labour was issued after the first-instance judgment had been upheld on appeal. The Court's task is to determine whether, on the facts of the present case, the quashing of the judgment was exercised in a manner compatible with Article 6. To do so it will examine the reasons adduced by the Zheleznodorozhniy District Court for the quashing of the judgment (see paragraph 14 above). 40. The Zheleznodorozhniy District Court held that the interpretation of the Pensions Act by the Ministry of Labour, which had been upheld by the Supreme Court, was a “newly discovered circumstance”. Therefore, the District Court decided that the Agency's request should be granted and the judgment be quashed. 41. The Court first notes that the Instruction and the Supreme Court's decision upholding it did not exist during the examination of the applicants' case. They were adopted after the judgment had been upheld on appeal. In the Court's view, the above-mentioned Instruction and decision were new legal acts and did not constitute newly discovered circumstances as considered by the District Court (see Article 333 of CCivP, paragraph 19 above). 42. Further, the judgment of 13 August 1999 was a result of the District Court's interpretation and application of the Pensions Act to the applicants' case. As it transpires from the decision of 7 February 2001, the fact that the Ministry's interpretation of that Act in an Instruction, a subordinate legal instrument, differed from the court's findings, with the effect that it would have led to a different outcome of the proceedings, was considered by the District Court a sufficient reason to quash the judgment and reconsider the case. The Court finds that this reason as such could not justify the reopening of the case after a final and binding judgment. 43. The Court notes the Government's argument that the reopening was necessary to make good a miscarriage of justice. However, other than referring to the Ministry's interpretation of the law as a reason for the reopening, the District Court said nothing in its decision to explain why its original findings were to be considered a “miscarriage of justice” such as to justify the reopening. 44. The Court finds that by granting the Agency's request to reconsider the applicants' case and setting aside the final judgment of 13 August 1999, as upheld on 19 October 1999, the domestic authorities infringed the principle of legal certainty and the applicants' “right to a court” under Article 6 § 1 of the Convention. 45. There has accordingly been a violation of that Article. 3. Alleged violation of Article 1 of Protocol No. 1 46. The Court notes that the “possession” in this case was the applicants' claim to a pension based on a coefficient of 0.7 from 1 February 1998, in accordance with the judgment of the Zheleznodorozhniy District Court of 13 August 1999, upheld on 19 October 1999. 47. The District Court did not determine the date until which this method of calculation should have been maintained. When delivering its judgment it applied the statutory pension regulations which were in force at the time. Those regulations, however, “are liable to change and a judicial decision cannot be relied on as a guarantee against such changes in the future” (see Sukhobokov v. Russia, no. 75470/01, § 26, 13 April 2006). Thus the Court observes that, as a result of such changes, the coefficient for the calculation of the applicants' pensions changed to 0.816 and 0.804 respectively from 1 May 2001. 48. The Court notes that the applicants' concern under Article 1 of Protocol No. 1 was the loss of their entitlement to a pension based on a coefficient of 0.7 for the period between 1 February 1998 and 1 August 2000 for the first applicant and for the period between 1 February 1998 and 1 May 2001 for the second applicant, as opposed to the pensions calculated and actually paid. However, the Court further notes that before those periods ended on 1 August 2000 and 1 May 2001, the Instruction had removed the ambiguity of the Pensions Act with the effect that the applicants' dispute over the coefficient had been resolved, at the level of the statutory regulations, in favour of the Agency. The Court considers that it was until the moment when the Instruction became binding in February 2000, and apparently changed the legislative framework relevant to the applicants' dispute, that the applicants' claim – and “possession” under Article 1 of Protocol No. 1 – had been secured by the judgment. 49. The effect produced by the decision of the Zheleznodorozhniy District Court of 7 February 2001, by which the application for reconsideration was granted, was that the applicants became deprived, retrospectively in respect of the above-mentioned period from February 1998 to February 2000, of the right to receive the pension in the amount initially determined by the court or, in other words, deprived of their possessions within the meaning of the second sentence of the first paragraph of Article 1 of Protocol No. 1. The taking of property, in the light of this rule, can only be justified if it is shown, inter alia, to be “in the public interest” and “subject to the conditions provided for by law” (see Pravednaya, cited above, §§ 39-40). 50. While assuming that it was in the public interest to ensure a uniform application of the Pensions Act, the compliance of the reconsideration of the applicants' case with the “lawfulness” requirement is questionable (see paragraph 41 above). Even assuming that the court's interpretation of the domestic procedural law was not arbitrary (see the Government's argument concerning the Constitutional Court's decisions and the relevant domestic law in paragraphs 26 and 20 above), it still remains to be established whether the interference was proportionate to the legitimate aim pursued. 51. In this connection the Court reiterates its finding in Pravednaya that “the State's possible interest in ensuring a uniform application of the Pensions Law should not have brought about the retrospective recalculation of the judicial award already made” (Pravednaya, cited above, § 41). Having regard to the fact that the reconsideration of the case resulted in the full dismissal of the applicants' claim that had been granted in the initial judgment, the Court finds no reason to depart from that conclusion in the present case. 52. Based on the above considerations, the Court finds that by depriving the applicants of the right to benefit from the pension in the amount secured in a final judgment, the State upset the fair balance between the interests at stake. 53. There has, accordingly, been a violation of Article 1 of Protocol No. 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 54. 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 1. Pecuniary damage 55. As regards pecuniary damage, Mrs Volkova claimed 713.06 euros (EUR) and Mrs Basova claimed EUR 723.69. These amounts represented the underpayment of their pensions between 1 February 1998 and 1 August 2000 in Mrs Volkova's case and between 1 February 1998 and 1 May 2001 in Mrs Basova's case, and the relevant inflation-related losses. The difference in pension was based on an “individual pensioner coefficient” of 0.7 and a coefficient linked to the region of the applicants' residence. 56. The Government submitted that no just satisfaction should be awarded to the applicants because there had been no violation of their rights under the Convention. Alternatively, the finding of a violation in itself would constitute sufficient just satisfaction. As regards the claim in respect of pecuniary damage, it should be rejected because it was open to the applicants to request a re-trial, which would be the most appropriate form of redress in this case. The Government further asserted that, as regards the period from February 1998 to December 2001, the difference between the pensions calculated with a coefficient of 0.7 and the pensions actually paid would be 4,787.83 roubles (RUR) in respect of Mrs Volkova and RUR 2,247.74 in respect of Mrs Basova. 57. The Court considers it appropriate to award the applicants, in respect of the violation of Article 1 of Protocol No. 1, the sums they would have received had the reduction of the pensions as a result of the reconsideration of the case not been backdated (see, mutatis mutandis, Vasilyev v. Russia, no. 66543/01, § 47, 13 October 2005). The Court notes that the sums calculated by the applicants were based on official certificates which confirm the amounts of the pensions actually paid and the rates of inflation. However, the sums to be awarded by the Court should not take account of the coefficient linked to the region of the applicants' residence, as that claim was not secured by the judgment of 13 August 1999, upheld on 19 October 1999, having been rejected by the second-instance court (see the facts in the Volkova and Basova v. Russia admissibility decision of 17 November 2005). Nor should it cover the whole periods taken by the applicants. The period relevant to the violation of Article 1 of Protocol No. 1 is indicated in paragraph 48 above. Those adjustments being made, the Court awards EUR 321 to Mrs Volkova and EUR 186 to Mrs Basova in respect of pecuniary damage. 2. Non-pecuniary damage 58. Each applicant further claimed EUR 5,000 in respect of non-pecuniary damage. They submitted that the pension was their only means of subsistence. Because of the underpayment of their pensions they could not afford to buy basic foodstuffs or medication, and this had caused them psychological suffering. They further submitted that during the court proceedings the facts had been misinterpreted, their right to a fair hearing had been infringed and they had been subjected to humiliation. 59. The Government submitted that the claim was “wholly ill-founded, unsubstantiated and unreasonable”. 60. The Court considers that the applicants have sustained non-pecuniary damage as a result of the violations found and that this cannot be made good merely by the Court's finding of a violation. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards each applicant EUR 2,000. B. Costs and expenses 61. Mrs Basova claimed EUR 31.36 for postal expenses incurred in connection with her application to the Court, together with EUR 11.84 that she had paid to obtain official information on rates of inflation for the preparation of her claim in respect of pecuniary damage. 62. The Government agreed with the claim. 63. According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. Having regard to the information in its possession, the Court awards Mrs Basova EUR 43.20 in respect of costs and expenses. C. Default interest 64. 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 1. Holds that there has been a violation of Article 6 § 1 of the Convention; 2. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 3. Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement: (i) EUR 321 (three hundred and twenty-one euros) to Mrs Volkova and EUR 186 (one hundred and eighty-six euros) to Mrs Basova in respect of pecuniary damage; (ii) EUR 2,000 (two thousand euros) to each applicant in respect of non-pecuniary damage; (iii) EUR 43.20 (forty-three euros twenty cents) to Mrs Basova in respect of costs and expenses; (iv) any tax that may be chargeable on the above amounts; (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; 4. Dismisses the remainder of the applicants' claim for just satisfaction. Done in English, and notified in writing on 5 July 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident

FOURTH SECTION CASE OF M.M. v. THE UNITED KINGDOM (Application no. 24029/07) JUDGMENT STRASBOURG 13 November 2012 FINAL 29/04/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of M.M. v. the United Kingdom, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Lech Garlicki, President,Nicolas Bratza,Päivi Hirvelä,George Nicolaou,Ledi Bianku,Nebojša Vučinić,Vincent A. De Gaetano, judges,and Lawrence Early, Registrar, Having deliberated in private on 23 October 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 24029/07) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, Ms M.M. (“the applicant”), on 1 March 2007. The Vice-President of the Section granted the applicant anonymity (Rule 47 § 3 of the Rules of Court). 2. The applicant was represented by Mr B. Kennedy QC, a lawyer practising in Belfast. The United Kingdom Government were represented by their Agents, Ms H. Moynihan and Ms A. Sornarajah, of the Foreign and Commonwealth Office. 3. The applicant complained in particular about the retention and disclosure in the context of a criminal record check of data concerning a caution she received from the police. 4. On 5 October 2010 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1951 and lives in County Tyrone, Northern Ireland. 6. In April 2000 the girlfriend of the applicant’s son wished to leave Northern Ireland with the applicant’s ten-month old grandson and return to live in Australia following her separation from the applicant’s son. In order to try and force her son and his girlfriend to reconcile their differences, and in the hope that her grandson would not return to Australia, the applicant disappeared with her grandson at 6 p.m. on 19 April 2000 without the parents’ permission. The police were called and the child was returned unharmed on the morning of 21 April 2000. 7. The applicant was subsequently arrested for child abduction. At a police interview on 24 April 2000, in the presence of her solicitor, the applicant confirmed that she had been aware at the time that she took her grandson that her conduct amounted to child abduction. 8. By letter dated 10 October 2000 the Director of Public Prosecutions recorded his decision that the public interest did not require the initiation of criminal proceedings against the applicant and that no such proceedings should therefore be brought. Instead, he indicated that a caution should be administered. 9. The applicant received a caution for child abduction which was formally administered on 17 November 2000. 10. On 6 March 2003, in reply to a query from the applicant, the police advised her that her caution would remain on record for five years, and so would be held on record until 17 November 2005. 11. On 14 September 2006 the applicant was offered employment as a Health Care Family Support Worker within Foyle Health and Social Services Trust (“the Trust”) through Westcare Business Services (“Westcare”), subject to vetting. She was asked to disclose details of prior convictions and cautions. She accordingly disclosed details of the incident of April 2000 and her subsequent caution on the form provided, and consented to a criminal record check. Westcare contacted the Criminal Records Office of the Police Service of Northern Ireland (“Criminal Records Office”) to verify the details disclosed. The existence of the caution was duly verified. 12. On 31 October 2006 Westcare withdrew the offer of employment, indicating that it had taken into account the verification by the Criminal Records Office of the caution for child abduction. 13. The applicant subsequently sought to challenge her acceptance of the caution in November 2000 by letter to the Criminal Records Office. In an undated letter, the Criminal Records Office replied to her in the following terms: “... in a case where someone agrees to be cautioned by the police for a particular offence, by doing so they are accepting that they were guilty of the offence in the first place. This information is printed on the caution form, which you signed on 17th November 2000. Regrettably there is no way to change that. The case cannot be brought back to a court because the whole idea of the caution was to keep it out of court in the first instance. I should also point out that the information given to Sgt Dunne and which he relayed to you in 2003, about the weeding date for an adult caution, was correct at that time but there has since been a policy change. Normally an adult caution will be weeded after a period of five years, provided the defendant has not been convicted of any further offences. However following the murder of the schoolgirls in Soham England and the subsequent Bichard Report the weeding policy was changed in relation to all cases where the injured party is a child. The current policy is that all convictions and cautions, where the injured party is a child, are kept on the record system for life.” 14. The letter concluded: “I fully appreciate that the offence in your case was not the normal type of offence and that the child did not suffer any harm and that it was never your intention that he should suffer any harm. The offence code under which the offence comes for computing purposes classes the offence as ‘child abduction’ (by other person). Which means a person other than a parent of the child. ... Perhaps you would be good enough to contact me ... in order that we might discuss the matter and perhaps find some means of ameliorating the consequences of the information given above.” 15. By letter dated 6 May 2006 to the applicant’s solicitor, the Criminal Records Office confirmed that in signing the caution form the applicant had accepted guilt for the offence in question and that nothing could be done to change the criminal record. The applicant’s solicitor subsequently informed her that there did not appear to be any action which she could take in relation to the removal of the caution. 16. By letter dated 6 December 2006 Detective Superintendent Thomson of the Northern Ireland Police Service confirmed that he would not delete the caution from police records. However he proposed, with the applicant’s agreement, to add a comment to the effect that the incident was domestically related and that in any vetting context the applicant should be approached for an explanation. 17. In January 2007 the Northern Ireland Legal Services Commission (“the LSC”) refused an application for legal aid, made by the applicant’s solicitor, to review the Trust’s decision not to employ the applicant. The solicitor informed the applicant that she could appeal the LSC’s decision at a cost of GBP 500 for representation by counsel, but the applicant could not afford to instigate legal proceedings without public funding. 18. In February 2007 the applicant was interviewed for a position as a Family Support Worker. The interview letter advised that the position was a regulated one under Article 31 of the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003 and she was asked to complete a consent form and bring it to the interview. 19. On 29 March 2007 the applicant was informed that her application for the position was unsuccessful. No reasons were provided. II. RELEVANT DOMESTIC LAW AND PRACTICE A. The aims and nature of a caution 20. At the relevant time the purpose of a formal caution was set out in Police Force Order no. 9/96 issued by the Royal Ulster Constabulary, namely: “(a) to deal quickly and simply with less serious offenders; (b) to divert offenders in the public interest from appearance in the criminal courts; and (c) to reduce the likelihood of re-offending.” 21. The Order further noted: “... a formal caution is not a form of sentence ... (a) A formal caution is nonetheless a serious matter. It is recorded by police; it may be relevant in relation to future decisions as to prosecution, and it may be cited in any subsequent criminal prosecutions. Properly used, caution is an effective form of disposal. ...” B. Retention of conviction and caution data in police records 1. The statutory background 22. Article 29(4) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (as subsequently amended) provides that: “... the Secretary of State may by regulations make provision for recording in police records convictions for such offences as are specified in the regulations.” 23. The regulations made by the Secretary of State under this provision are the Northern Ireland Criminal Records (Recordable Offences) Regulations 1989. These regulations identify the relevant convictions as being those for offences punishable by imprisonment, as well as a number of additional specified offences. The regulations do not make any reference to cautions. 24. According to the Government, the recording of cautions in Northern Ireland takes place under the police’s common law powers to retain and use information for police purposes. That power is subject to the provisions of the Data Protection Act 1998 (see generally paragraphs 65-71 below). 2. Policy and practice (a) The policy and practice of the Police Service in Northern Ireland 25. According to the Government, the policy and practice of the Police Service in Northern Ireland (“PSNI”) at the time of the issue of the applicant’s caution in 2000 was to delete cautions from the individual’s criminal record after five years. 26. However, following publication of the Bichard Report in 2006 (see paragraphs 31-32 below), the PSNI changed its practice so as to retain information on adult cautions for the rest of a person’s life. (b) Relevant policy documents (i) The ACPO Codes of Practice of 1995, 1999 and 2002 27. The chief constable of PSNI is a member of the Association of Chief Police Officers of England and Wales and Northern Ireland (“ACPO”). 28. Pursuant to the ACPO Code of Practice 1995 (“the 1995 ACPO Code”), in cases of conviction for an offence that carried the possibility of imprisonment, a record of the conviction had to be retained for a period of twenty years. Exceptions to this included cases where the conviction was for an offence against a child or young person, where the record was to be retained until the offender was 70 years old, subject to a minimum 20-year retention period; and cases involving rape, where the record was to be retained for the life of the offender. 29. Records of cautions (assuming there were no other convictions or further cautions) were to be retained for a five-year period. 30. The 1995 ACPO Code was updated in 1999 and subsequently replaced by another code of practice in 2002. Neither instrument substantially altered the provisions regarding retention of data relating to cautions. (ii) The Bichard Inquiry Report 2004 31. Following the murders of two young girls in August 2002 by a caretaker employed at a local school, a review of the United Kingdom’s police forces was announced by the Home Secretary. An inquiry was set up, to be conducted by Sir Michael Bichard. 32. The Bichard Inquiry Report (“the Bichard report”) was published in June 2004. It reviewed current practice as regards retention of data on convictions and cautions and concluded (at paragraph 4.41) that “there were a number of problems with the review, retention or deletion of records.” The report recommended that: “A Code of Practice should be produced covering record creation, review, retention, deletion and information sharing. This should be made under the Police Reform Act 2002 and needs to be clear, concise and practical. It should supersede existing guidance.” (iii) Code of Practice on the Management of Police Information 2005 33. In July 2005 the Secretary of State adopted a Code of Practice on the Management of Police Information (“the 2005 Code of Practice”). The Code applies directly to police forces in England and Wales and is available for adoption by other police forces. The Government did not clarify whether the Code has been adopted by the PSNI. 34. Paragraph 1.1.1 of the Code explains that police forces have a duty to obtain and use a wide variety of information, including personal information. The Code clarifies that responsibility for the management and use of information lies with the chief officer of the police force. It recognises the existing legislative framework for the management of information relating to data protection and human rights set out in the Data Protection Act (see paragraph 65-71 below). 35. The Code sets out a number of key principles including, inter alia, the duty to obtain and manage information; the importance of recording information considered necessary for a police purpose; and the need to review information and consider whether its retention remains justified, in accordance with any guidance issued. (iv) Guidance on the Management of Police Information 2006 and 2010 36. In 2006 ACPO published Guidance on the Management of Police Information. This Guidance was applied by the PSNI. A second edition was published in 2010 (“the MOPI Guidance”), and is also applied by the PSNI. 37. Chapter 7 of the MOPI Guidance deals with review, retention and disposal of police information not contained on the Police National Computer (“PNC”). The PNC is the system for recording conviction data in England and Wales; the Causeway system is used in Northern Ireland. The MOPI Guidance notes at the outset that: “7.2.1 ... Public authorities, including police forces, must act in a way that complies with the European Convention on Human Rights (ECHR) and the Human Rights Act 1998. In relation to record retention this requires a proportionate approach to the personal information held about individuals. The decision to retain personal records should be proportionate to the person’s risk of offending, and the risk of harm they pose to others and the community. A higher proportionality test should be met in order to retain records about relatively minor offending.” 38. The MOPI Guidance also refers to the need to comply with the principles of the Data Protection Act (see paragraph 65-71 below). 39. The MOPI Guidance sets out the framework for decision-making in respect of retention of police information. It provides that records should be kept for a minimum period of six years, beyond which time there is a requirement to review whether retention of the information remains necessary for a policing purpose. Relevant questions are whether there is evidence of a capacity to inflict serious harm, whether there are concerns relating to children or vulnerable adults, whether the behaviour involved a breach of trust, whether there is evidence of links or associations which might increase the risk of harm, whether there are concerns as to substance misuse and whether there are concerns that an individual’s mental state might increase the risk. In any review, the MOPI Guidance notes that there is a presumption in favour of retention of police information provided that it is not excessive, is necessary for a policing purpose, is adequate for that purpose and is up to date. 40. The MOPI Guidance also contains a review schedule based on the seriousness of offences. Under the review schedule, information is divided into four categories. Group 1 is called “Certain Public Protection Matters”, which includes information relating to individuals who have been convicted, acquitted, charged, arrested, questioned or implicated in relation to murder or a serious offence as specified in the Criminal Justice Act 2003 (or historical offences that would be charged as such if committed today). Such information should only be disposed of if it is found to be entirely inaccurate or no longer necessary for policing purposes. The MOPI Guidance continues: “Forces must retain all information relating to certain public protection matters until such time as a subject is deemed to have reached 100 years of age (this should be calculated using the subject’s date of birth). There is still a requirement, however, to review this information regularly to ensure that it is adequate and up to date. This must be done every ten years ... Due to the seriousness of this group, no distinction is made between the type or classification of information that can be retained for 100 years; information retained under this grouping can include intelligence of any grading. There may be extreme cases where the retention of records relating to certain public protection matters would be disproportionately injurious to the individual they are recorded against. For example, an individual arrested on suspicion of murder for a death that is subsequently found to have been the result of natural causes, or an entirely malicious accusation that has been proven as such, would both generate records that can only be adequate and up to date if they reflect what actually happened. Particular care must be exercised in disclosing any such records to avoid unnecessary damage to the person who is the subject of the record.” 41. The other categories are “Other Sexual, Violent or Serious Offences (Group 2), in respect of which information should be retained for as long as the offender or suspected offender continues to be assessed as posing a risk of harm; “All Other Offences” (Group 3), in respect of which police forces may choose to use a system of time-based, automatic disposal if it is considered that the risk of disposal is outweighed by the administrative burden of reviewing the information or the cost of retaining it; and “Miscellaneous” (Group 4), which covers a variety of other cases and entails different guidance on retention in each one. (v) Retention Guidelines for Nominal Records on the Police National Computer 2006 42. The ACPO Retention Guidelines for Nominal Records on the Police National Computer 2006 (“the ACPO Guidelines”) came into effect on 31 March 2006. The ACPO Guidelines form part of the guidance issued under the MOPI Code and are applied by PSNI. 43. The ACPO Guidelines explain that: “1.3 The Retention Guidelines are based on a format of restricting access to PNC data, rather than the deletion of that data. The restriction of access is achieved by setting strict time periods after which the relevant event histories will ‘step down’ and only be open to inspection by the police. Following the ‘step down’ other users of PNC will be unaware of the existence of such records, save for those occasions where the individual is the subject of an Enhanced Check under the Criminal Records Bureau vetting process ... ” 44. They continue: “2.8 ...the Nominal records will now contain ‘Event Histories’ to reflect the fact that the subject may have been Convicted (including cautions, reprimands and warnings), dealt with by the issue of a Penalty Notice for Disorder, Acquitted, or dealt with as a ‘CJ Arrestee’ [a person who has been arrested for a recordable offence under the Criminal Justice Act 2003 but in respect of whom no further action was taken].” 45. The general principle set out in paragraph 3.1 of the ACPO Guidelines is that when a nominal record is created or updated on the PNC by virtue of an individual being convicted, receiving a Penalty Notice for Disorder, being acquitted or being a CJ Arrestee, the record will contain the relevant personal data together with details of the offence which resulted in the creation of the record. The record will be retained on PNC until that person is deemed to have attained 100 years of age. 46. Paragraph 4.32 of the ACPO Guidelines clarifies that chief officers are the “data controllers” (within the meaning of the Data Protection Act 1998 – see paragraphs 65-71 below) of all PNC records, including DNA and fingerprints associated with the entry, created by their forces and that they have the discretion in exceptional circumstances to authorise the deletion of any such data. Appendix 2 of the ACPO Guidelines outlines the procedure to be followed in deciding whether a particular case will be regarded as “exceptional” and states: “Exceptional cases by definition will be rare. They might include cases where the original arrest or sampling was found to be unlawful. Additionally, where it is established beyond reasonable doubt that no offence existed, that might, having regard to all the circumstances, be viewed as an exceptional circumstance.” C. Disclosure of a caution 1. The legal framework (a) Prior to 1 April 2008 47. According to the Government, from the date on which the caution was administered to the applicant until 1 April 2008, requests for disclosure of criminal record data in Northern Ireland were made on a consensual basis. Disclosure took place in accordance with well-established common law powers of the police for police purposes only. (b) After 1 April 2008 48. Part V of the Police Act 1997 (“the 1997 Act”) now sets out the legislative framework for the disclosure of criminal record information in Northern Ireland. The relevant provisions entered into force in Northern Ireland on 1 April 2008. 49. Section 113A deals with criminal record certificates (“CRCs”). Section 113A(3) defines a CRC as follows: “A criminal record certificate is a certificate which– (a) gives the prescribed details of every relevant matter relating to the applicant which is recorded in central records, or (b) states that there is no such matter.” ...” 50. Section 113A(6) defines “central records” as such records of convictions and cautions held for the use of police forces generally as may be prescribed. In Northern Ireland, the relevant records are prescribed in the Police Act 1997 (Criminal Record) (Disclosure) Regulations (Northern Ireland) 2008 as information in any form relating to: convictions held in the criminal history database of the Causeway System; and convictions and cautions on a names index held by the National Police Improvement Authority for the use of police forces generally. The term “relevant matter” is defined in section 113A(6) of the 1997 Act as including “spent” convictions and cautions (see paragraphs 61-64 below). Pursuant to section 65(9) of the Crime and Disorder Act 1998 , the reference to a “caution” in section 113A is to be construed as including warnings and reprimands. 51. The Secretary of State must issue a CRC to any individual who makes an application in the prescribed manner and form and pays the prescribed fee. The application must be countersigned by a registered person and accompanied by a statement by the registered person that the certificate is required for the purposes of an exempted question. Section 113A(6) defines “exempted question” as follows: in respect of a conviction, a question which the Secretary of State has by order excluded from the provisions on “spent” convictions under the 1974 Act or the 1978 Order; and in respect of a caution, a question which the Secretary of State has by order excluded from the provisions on “spent” cautions under the 1974 Act; as noted above there is no corresponding provision in Northern Ireland. In respect of Northern Ireland, the Secretary of State subsequently made an order excluding the provisions on “spent” convictions in relation to questions directed, inter alia, at assessing the suitability of persons to work with children and vulnerable adults. 52. Section 113B deals with enhanced criminal record certificates (“ECRCs”). As with a CRC, the Secretary of State must issue an ECRC to any individual who makes an application in the prescribed manner and form and pays the prescribed fee. The application must be countersigned by a registered person and accompanied by a statement by the registered person that the certificate is required for the purposes of an exempted question asked for a “prescribed purpose”. 53. The “prescribed purposes” are defined in the Police Act 1997 (Criminal Records) (Disclosure) Regulations (Northern Ireland) 2008 as amended and include the purposes of considering the applicant’s suitability to engage in any activity which is regulated activity relating to children or vulnerable adults, as defined in legislation. 54. Section 113B(3) provides: “An enhanced criminal record certificate is a certificate which– (a) gives the prescribed details of every relevant matter relating to the applicant which is recorded in central records and any information provided in accordance with subsection (4), or (b) states that there is no such matter or information.” 55. Section 113B(4) provides that before issuing an ECRC the Secretary of State must request the chief officer of every relevant police force to provide any information which, in the chief officer’s opinion, might be relevant for the “prescribed purpose” and ought to be included in the certificate. 56. Pursuant to section 113B(5), the Secretary of State must also request the chief officer of every relevant police force to provide any information which, in the chief officer’s opinion, might be relevant for the “prescribed purpose”, ought not to be included in the certificate in the interests of the prevention or detection of crime but can, without harming those interests, be disclosed to the registered person. 57. The Secretary of State must send to the registered person who countersigned the application a copy of the enhanced criminal record certificate, and any information provided in accordance with subsection (5). 2. Policy and practice 58. The MOPI Guidance explains the circumstances in which police information will be disclosed: “6.3.1. ... The Police Act 1997 creates a statutory scheme for the disclosure of criminal records and police information on potential employees to prospective employers. The CRB is responsible for the scheme and for ensuring that employers have sufficient information to make a judgment on the suitability of a potential employee to work with children or vulnerable adults.” 59. The Guidance further refers to the possibility of sharing information under common law powers. In such cases, a policing purpose must be established and the decision to disclose data must strike a balance between the risk posed and the need for confidentiality of data under the Human Rights Act and the Data Protection Act. 60. As noted above, the ACPO Guidelines work on the basis of restricting access to police information rather than deleting data. Recordable offences are split into categories “A”, “B” and “C” depending on the seriousness of the offence, with category A being the most serious offences. These categories mirror Groups 1, 2 and 3 set out in the MOPI Guidance. The Guidelines set strict time periods after which relevant data will “step down” and only be open to inspection by the police. The aim is to ensure that following step down, other users of the PNC will be unaware of the existence of the relevant records, save in cases of requests for criminal record checks. For example, the ACPO Guidelines state, at paragraph 4.19, that: “4.19 In the case of an adult who is dealt with by way of a caution in respect of an offence listed in category ‘A’, the conviction history will ‘step down’ after a clear period of 10 years, and thereafter only be open to inspection by the police.” D. Rehabilitation of offenders 61. Pursuant to legislation, those convicted of certain offences may become “rehabilitated” after a certain period of time has elapsed. The relevant legislation in England and Wales is the Rehabilitation of Offenders Act 1974 (“the 1974 Act”). The legislation which applies in Northern Ireland is the Rehabilitation of Offenders (Northern Ireland) Order 1978 (“the 1978 Order”). 62. Pursuant to the 1978 Order, any person who has been convicted of an offence capable of rehabilitation and has not committed any other offence during the rehabilitation period is to be treated as rehabilitated at the end of the rehabilitation period. 63. The effect of rehabilitation is that the person is treated for all purposes in law as a person who has not committed, or been charged with, prosecuted for or convicted of the offence in question, i.e. the conviction is considered “spent”. If asked about previous convictions, a person is to treat the question as not relating to spent convictions and may frame his answer accordingly; he is not to be liable or prejudiced for his failure to acknowledge or disclose a spent conviction. Spent convictions are not a proper ground for dismissing or excluding a person from employment. However, the Secretary of State is empowered to provide for exclusions, modifications or exemptions from the provisions on the effect of rehabilitation. 64. The 1978 Order makes no reference to cautions. However, the 1974 Act (which does not apply in Northern Ireland) contains a Schedule introduced in 2008 which provides protection for spent cautions. According to Schedule 2, a caution is to be considered a spent caution at the time that it is given. The effects of rehabilitation in respect of a caution are the same as those described above which apply to a conviction. As with convictions, the Secretary of State may, by order, provide for exclusions or exemptions. E. The Data Protection Act 1998 65. The Data Protection Act (“the DPA 1998”) was adopted on 16 July 1998. The main provisions of the Act entered into force on 1 March 2000. 66. The Act stipulates that the processing of personal data is subject to eight data protection principles listed in Schedule 1. 67. Pursuant to section 1 of the DPA 1998, “personal data” includes data which relate to a living individual who can be identified from those data. Section 2 of the Act defines “sensitive personal data” as personal data consisting, inter alia, of information as to the commission or alleged commission by him of any offence, or any proceedings for any offence committed or alleged to have been committed by him, the disposal of such proceedings or the sentence of any court in such proceedings. 68. Under the first principle personal data shall be processed fairly and lawfully and, in particular shall not be processed unless (a) at least one of the conditions in Schedule 2 is met; and (b) in case of sensitive personal data, at least one of the conditions in Schedule 3 is also met. Schedule 2 contains a detailed list of conditions, including that the processing of any personal data is necessary for the administration of justice or for the exercise of any other functions of a public nature exercised in the public interest by any person (paragraphs 5(a) and (d)). Schedule 3 contains a more detailed list of conditions, including that the processing is necessary for the purposes of performing an obligation imposed by law on the data controller in connection with employment (paragraph 1), the processing is necessary for the purpose of, or in connection with, any legal proceedings or is otherwise necessary for the purposes of establishing, exercising or defending legal rights (paragraph 6), or is necessary for the administration of justice or for the exercise of any functions conferred on any person by or under an enactment (paragraph 7). Section 29 provides a qualified exemption from the first data protection principle in the case of personal data processed, inter alia, for the prevention or detection of crime. 69. The third principle provides that personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed. 70. The fifth principle stipulates that personal data processed for any purpose shall not be kept for longer than is necessary for that purpose. 71. The Information Commissioner created pursuant to the Act has an independent duty to promote the following of good practice by data controllers and has power under section 40 of the Act to make orders (“enforcement notices”) in this respect. Section 47 of the Act makes it a criminal offence not to comply with an enforcement notice. Section 48 of the Act gives data controllers the right to appeal against an enforcement notice to the First Tier Tribunal, if an enforcement notice raises a point of law. Section 13 sets out a right to claim damages in the domestic courts in respect of contraventions of the Act. F. The Human Rights Act 1998 72. Section 3(1) of the Human Rights Act 1998 (“the Human Rights Act”) provides as follows: “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.” 73. Section 4 of the Act provides: “(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right. (2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility. ...” 74. Section 6(1) of the Act provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Section 6(2) clarifies that: “Subsection (1) does not apply to an act if– (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.” 75. Section 7(1) provides that a person who claims that a public authority has acted in a way made unlawful by section 6(1) may bring proceedings against the authority. 76. Section 8(1) of the Act permits a court to make a damages award in relation to any act of a public authority which the court finds to be unlawful. G. Judicial consideration 1. R (X) v Chief Constable of the West Midlands Police [2004] EWCA Civ 1068 77. In R (X), the Court of Appeal considered the compatibility with Article 8 of the Convention of the disclosure of additional information under the predecessor of section 113B(4) of the 1997 Act in the context of an enhanced criminal records check. The appellant had applied for a job as a social worker and had no previous convictions. He had been charged with indecent exposure, but the proceedings were discontinued when the alleged victim failed to identify him. The social work agency which was dealing with his job application applied for an ECRC. The chief constable, as he was required to do, issued an ECRC. It contained details of the allegations of indecent exposure under the heading “other relevant information”. 78. Lord Woolf CJ noted at the outset that while it was accepted by both parties that the information included in the ECRC might offend against Article 8 § 1, it was not suggested that the legislation itself contravened that Article. He explained: “20. ... No doubt this is because disclosure of the information contained in the certificate would be ‘in accordance with the law’ and ‘necessary in a democratic society’, in the interests of public safety and for the prevention of crime and for the protection of the rights and freedoms of others. This country must, through its legislature, be entitled to enable information to be available to prospective employers, where the nature of the employment means that particular care should be taken to ensure that those who are working with the appropriate categories of persons can be relied on to do so, without those in their care coming to harm if they are under the age of 18 or vulnerable adults.” 79. On the question of the balance between competing interests, Lord Woolf CJ indicated (at paragraph 36) that: “Having regard to the language of section 115 [the predecessor of section 113B], the Chief Constable was under a duty to disclose if the information might be relevant, unless there was some good reason for not making such a disclosure.” 80. He continued (at paragraph 37): “This was obviously required by Parliament because it was important (for the protection of children and vulnerable adults) that the information should be disclosed even if it only might be true. If it might be true, the person who was proposing to employ the claimant should be entitled to take it into account before the decision was made as to whether or not to employ the claimant. This was the policy of the legislation in order to serve a pressing social need. In my judgment it imposes too heavy an obligation on the Chief Constable to require him to give an opportunity for a person to make representations prior to the Chief Constable performing his statutory duty of disclosure.” 81. On the application of Article 8, assuming that it was engaged, he noted (at paragraph 41): “... [H]ow can the Chief Constable’s decision to disclose be challenged under article 8? As already indicated, the Chief Constable starts off with the advantage that his statutory role is not in conflict with article 8, because the statute meets the requirements of article 8(2). It follows also, that as long as the Chief Constable was entitled to form the opinion that the information disclosed might be relevant, then absent any untoward circumstance which is not present here, it is difficult to see that there can be any reason why the information that ‘might be relevant’, ought not to be included in the certificate. I accept that it is possible that there could be cases where the information should not be included in the certificate because it is disproportionate to do so; the information might be as to some trifling matter; it may be that the evidence made it so unlikely that the information was correct, that it again would be disproportionate to disclose it. These were not, in my judgment, the situations on the facts before the Chief Constable.” 2. R (R) v Durham Constabulary and another [2005] UKHL 21 82. The case of R (R) concerned the issue of a “reprimand or warning” to a young person for alleged offences of indecent assault. Unlike the issue of a caution, the issue of a reprimand or warning did not require the person’s consent. However, like a caution, the issue of a reprimand/warning required the individual to admit to the offence. The issue of the reprimand/warning in the case had given rise to an obligation that the young offender in question be subject to registration pursuant to the Sex Offenders Act 1977. The claimant alleged that the reprimand had violated Article 6 of the Convention because it had been issued without his consent and the consequences of its issue, including the need to register on the Sex Offender Register, had not been properly identified to him. 83. The House of Lords unanimously rejected the claim. Lord Bingham of Cornhill doubted whether Article 6 had been engaged at all, but even assuming that it was, he concluded that it had ceased to apply once the decision had been made not to prosecute the claimant. He noted that there was little case-law from this Court as to the meaning of “determination” of criminal charges and expressed the view that the determination of a criminal charge, to be properly so regarded, must expose the subject of the charge to the possibility of punishment, whether in the event punishment was imposed or not. He considered therefore that a process which could only culminate in measures of a preventative, curative, rehabilitative or welfare-promoting kind would not ordinarily involve the determination of a criminal charge. He accordingly concluded that neither the warning of the claimant nor the decision to warn him involved the determination of a criminal charge against him. Had they done so, Lord Bingham noted, it was acknowledged by the police force that there had been no valid waiver by him of his fair trial right. 3. R (S) v Chief Constable of West Mercia and Criminal Records Bureau [2008] EWHC 2811 (Admin) 84. The claimant challenged the inclusion under section 113B(4) of the 1997 Act of other information provided by the chief constable on an ECRC regarding alleged offences of which he had been found not guilty. 85. The High Court upheld the challenge and quashed the decision on the basis that the decision-maker had not taken reasonable steps to ascertain whether the allegations that had been made had been true and why the claimant had been acquitted. On the facts of the case it was clear that the Magistrates’ Court had acquitted the claimant because it took the view that he was innocent in the full sense of the word. The High Court observed: “I stress, however, that this decision is very specific to the facts of this case. I do not suggest for one minute that allegations should not be disclosed in an ECRC simply because the alleged offender has been acquitted. The circumstances surrounding the acquittal are all important. There will be instances where an alleged offender is acquitted but only because the Magistrates (or Jury) entertain a reasonable doubt about the alleged offender’s guilt. The tribunal of fact may harbour substantial doubts. In such circumstances, however, it might well be perfectly reasonable and rational for a Chief Constable to conclude that the alleged offender might have committed the alleged offence ...” 4. R (Pinnington) v Chief Constable of Thames Valley Police [2008] EWHC 1870 (Admin) 86. The Divisional Court considered a claim by an individual aggrieved by the disclosure in an ECRC of three allegations of sexual abuse of autistic persons in his care, where he had been interviewed by the police about one of the allegations but no charges were pursued. 87. The judge conducted a detailed analysis of the allegations and concluded: 58. It follows that in my judgment the decision to disclose the three allegations was lawful ... I recognise how painful such disclosure must be for the claimant, and how damaging its consequences may be. It seems to me, however, that all this follows inevitably from the terms of the legislation and is fully in line with the legislative policy as explained by Lord Woolf in R (X) v Chief Constable of the West Midlands Police. In relation to employment with children or vulnerable adults, it is information of which an employer should be aware. It is then for the employer to decide whether the employment of the person concerned involves an unacceptable risk. 59. I am troubled by the fact that the claimant’s new employer in this case apparently operated a blanket policy of insisting on a ‘clean’ certificate, so that the disclosure of the three allegations led inevitably to the claimant’s dismissal on the transfer of his employment to that employer on a reorganisation at work. The legislation imposes a relatively low threshold for disclosure in the certificate in order to enable an employer to make a properly informed decision. But it is important that employers understand how low that threshold is and the responsibility that it places in practice upon them. A properly informed decision requires consideration not only of the information disclosed in the certificate but also of any additional information or explanation that the employee may provide. The operation of a blanket policy of insisting on a ‘clean’ certificate leaves no room for taking into account what the employee may have to say. That is a matter of particular concern if it leads to the dismissal of an existing employee or of someone whose employment is transferred to the employer on a reorganisation. On the basis of the limited material available to the court, I confess to some surprise that the claimant was advised in this case that he had no reasonable prospect of success in a claim for unfair dismissal resulting from the application of such a policy ...” 5. Chief Constable of Humberside & Others v The Information Commissioner & Another [2009] EWCA Civ 1079 88. The question for examination by the Court of Appeal in its judgment handed down on 19 October 2009 was whether certain principles of the Data Protection Act 1998, namely principle 1 (personal data shall be processed fairly and lawfully), principle 3 (personal data shall be adequate relevant and not excessive) and principle 5 (personal data shall not be kept for longer than necessary), required the police to delete certain old convictions from the PNC. Lord Justice Waller noted at the outset: “1. ... The complaint in each case follows the disclosure of the convictions pursuant to a request by the ... CRB ... or, in one case, a request by one of the individuals herself, and it is important to emphasise at the outset that the complaint about retention flows in reality not from the retention itself but from the fact that, if retained, disclosure may follow. In respect of each of those convictions the Information Tribunal (the IT) has upheld the view of the Information Commissioner (the IC) that they should be deleted. However the ramifications are far wider than these five cases since, if these convictions must be deleted and if the police are to treat people consistently, the application of any viable system of weeding would probably lead to the deletion of around a million convictions.” 89. He clarified the effect of the “stepping down” policy on disclosure in the context of criminal records checks, noting: “3. ... [I]t seems that both the Police and the IT understood that the result of stepping down would be that in certain circumstances the CRB would not have access to ‘stepped down’ convictions when preparing ‘standard disclosure certificates’ (as opposed to ‘enhanced disclosure certificates’) under Part V of the Police Act 1997. It is now accepted that that is not accurate. Under Part V of the 1997 Act ‘stepped down’ convictions are required to be revealed even on ‘standard disclosure certificates’, and thus although ‘stepping down’ prevents disclosure in many circumstances to persons other than the police, it does not prevent disclosure by the police in many others including the circumstances under which disclosure was made of four of the convictions the subject of this appeal.” 90. Waller LJ noted that PNC information was used for employment vetting. He observed that CRCs and ECRCs would contain details of spent convictions which, he indicated, provided an important protection to employers. He noted: “... Some emphasis is placed by [counsel for the intervenor] that no statutory obligation is placed on the police to retain data under the Police Act 1997, but on any view Part V of the Act seems to recognise that the data will be there to be provided.” 91. Taking as an example the case of one of the individuals concerned, Waller LJ considered the purposes for which the data had been recorded: “35. ... [I]t seems to me to be clear that one of the purposes for which the police retained the data on the PNC was to be able to supply accurate records of convictions to the CPS, the courts and indeed the CRB. ‘Rendering assistance to the public in accordance with force policies’ clearly covers the roles the police seek to perform in those areas and if there was any doubt about it the recipients include ‘Employers’ ‘the courts’ and ‘law enforcement agencies’.” 92. He continued: “36. If one then poses the question whether the Data being retained is excessive or being retained for longer than necessary for the above purposes there is, it seems to me, only one answer, since for all the above a complete record of convictions spent and otherwise is required. That seems to me to be a complete answer to the appeal ...” 93. Even if a narrower approach to police purposes were adopted, Waller LJ considered that the retention of the data was lawful under the DPA 1998. He noted: “43. ... If the police say rationally and reasonably that convictions, however old or minor, have a value in the work they do that should, in effect, be the end of the matter ... It is simply the honest and rationally held belief that convictions, however old and however minor, can be of value in the fight against crime and thus the retention of that information should not be denied to the police.” 94. He continued: “44. I emphasise the word ‘retention’ because if there is any basis for complaint by the data subjects in this case, it seems to me to relate to the fact that in certain circumstances this information will be disclosed, but that is because Parliament has made exceptions to the Rehabilitation of Offenders Act. What is more, the circumstances in which there will be disclosure are circumstances in which the Data Subject would be bound to give the correct answer if he or she were asked. It is not as it seems to me the purpose of the 1998 [Data Protection] Act to overrule the will of Parliament by a side wind.” 95. As to the complaint of one of the individuals concerned, S.P., that she had been assured in 2001 that the reprimand she had received aged thirteen would be removed from her record when she was eighteen if she did not get into anymore trouble and that the retention of the reprimand on the PNC after her eighteenth birthday was therefore unfair under the first data protection principle, Waller LJ, with whom Lord Justice Hughes agreed, held: “48. ... It seems to me that if it is fair to retain convictions under the new policy it does not become unfair to do so simply because the data subject was told of what the policy then was when being convicted or reprimanded. Furthermore, the deletion of this reprimand leading (as it would have to) to deletion of many others would be likely to prejudice the prevention and detection of crime and the apprehension or prosecution of offenders. The court and the CPS need the full information, never mind the fact the police are of the view that for their operational purposes they need the same.” 96. Finally, on the argument raised by the individuals that retention of the data violated Article 8 of the Convention, Waller LJ indicated that he was not persuaded that Article 8 § 1 was engaged at all in relation to the retention of the record of a conviction. He was of the view that disclosure might be another matter, but reiterated that the appeal before him was not about disclosure. Even if his conclusion were wrong, he considered that the processing was in accordance with the law and necessary in a democratic society. 97. On the Article 8 question, Lord Justice Carnwath noted as follows: “78. ... [W]ith regard to the Human Rights Convention, it is significant that the [Data Protection] Directive is itself specifically linked to the need to respect ‘fundamental rights and freedoms, notably the right to privacy...’, and that it refers in that respect to the European Convention on Human Rights (Preamble (2), (10)). This suggests that the maintenance of such a complete register of convictions, as implicitly endorsed by Article 8(5) of the Directive, should not normally raise any separate issues under the Convention.” 98. He referred to “considerable doubt” as to whether recording the mere fact of a conviction could ever engage Article 8 in any case, distinguishing S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, ECHR, on the basis that it concerned the data of unconvicted persons and was, in his view, accordingly no authority for the proposition that a record of the mere fact of a conviction engaged Article 8. 99. As regards the specific facts of S.P.’s case, given the assurance that she had received from the police that the reprimand would be removed when she reached the age of 18 and the manner in which the police had sought to justify their subsequent decision not to do so, Carnwath LJ considered that the decision of the first-instance tribunal that the retention of the data was unfair and in breach of the first data protection principle could not be faulted in law. 100. Permission to appeal was refused by the Supreme Court on 24 February 2010. 6. R (L) v Commissioner of Police of the Metropolis [2009] UKSC 3 101. In its judgment in R (L), handed down on 29 October 2009, ten days after the Court of Appeal’s ruling in Chief Constable of Humberside, the Supreme Court considered the Court of Appeal’s ruling in R (X) (see paragraphs 77-81 above) in the context of a case concerning disclosure of police information under the predecessor of section 113B(4) in the context of an ECRC. The appellant had secured a job as a playground assistant and the school required an ECRC to which the appellant consented. The ECRC disclosed that the appellant had been suspected of child neglect and non-cooperation with social services. The appellant had not been charged with, or convicted of, any offence, nor had she received a caution. Her employment was subsequently terminated and she brought judicial review proceedings, arguing that the disclosure of the information had violated her rights under Article 8. At issue was whether the requirement in the 1997 Act that chief officers provide information which “might be relevant” and “ought to be disclosed” when an ECRC was requested, was proportionate. 102. As to whether Article 8 was engaged by the mere retention of data, after reviewing the case-law of this Court, Lord Hope indicated (at paragraph 27): “This line of authority from Strasbourg shows that information about an applicant’s convictions which is collected and stored in central records can fall within the scope of private life within the meaning of article 8(1), with the result that it will interfere with the applicant’s private life when it is released. It is, in one sense, public information because the convictions took place in public. But the systematic storing of this information in central records means that it is available for disclosure under Part V of the 1997 Act long after the event when everyone other than the person concerned is likely to have forgotten about it. As it recedes into the past, it becomes a part of the person’s private life which must be respected. Moreover, much of the other information that may find its way into an ECRC relates to things that happen behind closed doors. A caution takes place in private, and the police gather and record information from a variety of sources which would not otherwise be made public. It may include allegations of criminal behaviour for which there was insufficient evidence to prosecute ... It may even disclose something that could not be described as criminal behaviour at all. The information that was disclosed on the appellant’s ECRC was of that kind.” 103. He therefore considered that decisions taken by chief constables in the context of ECRCs were likely to fall within the scope of Article 8 in every case as the information in question was stored in files held by the police. He noted that the approach taken by the police to questions of disclosure at the time was modelled on Lord Woolf CJ’s ruling in R (X) (see paragraphs 77-81 above). 104. Lord Hope indicated that the approach to disclosure under the applicable legislation involved a two-part test. In the first instance, the chief constable was required to consider whether the information might be relevant. Having concluded in the affirmative, he then had to turn his mind to the question whether the information ought to be included in the certificate. This required consideration of whether there was likely to be an interference with the individual’s private life and, if so, whether the interference could be justified. This raised the question whether the Court of Appeal in R (X) had struck the balance between the competing interests in the right place. 105. Turning to examine the approach of the Court of Appeal in that case, Lord Hope first endorsed the views expressed there as to the compatibility of the legislation itself with Article 8 (see paragraph 77 above). He noted that, as in that case, the appellant in the present case did not argue that the legislation itself contravened Article 8 and accepted that it could be interpreted and applied in a manner that was proportionate. Lord Hope continued: “42. So the issue is essentially one of proportionality. On the one hand there is a pressing social need that children and vulnerable adults should be protected against the risk of harm. On the other there is the applicant’s right to respect for her private life. It is of the greatest importance that the balance between these two considerations is struck in the right place ... [T]he use that is being made of the requirement to obtain an ECRC has increased substantially since the scheme was first devised. The number of disclosures of information by means of ECRCs has exceeded 200,000 for each of the last two years (215,640 for 2007/2008; 274,877 for 2008/2009). Not far short of ten per cent of these disclosures have had section 115(7) [now section 113B(4) – see paragraphs 55 above] information on them (17,560 for 2007/2008; 21,045 for 2008/2009). Increasing use of this procedure, and the effects of the release of sensitive information of this kind on the applicants’ opportunities for employment or engaging in unpaid work in the community and their ability to establish and develop relations with others, is a cause of very real public concern ...” 106. He noted in this regard that it was no answer to these concerns that the ECRC was issued on the application of the persons concerned. While he accepted that they could choose not to apply for a position of the kind that required a certificate, he considered that they had, in reality, no free choice in the matter if an employer in their chosen profession insisted, as he was entitled to, on an ECRC. He observed: “43. ... The answer to the question whether there was any relevant information is likely to determine the outcome of their job application. If relevant information is disclosed they may as a result be cut off from work for which they have considerable training and experience. In some cases they could be excluded permanently from the only work which is likely to be available to them. They consent to the application, but only on the basis that their right to private life is respected.” 107. Lord Hope considered that the effect of the approach taken to the issue in R (X) had been to tilt the balance against the applicant too far. The correct approach, he explained, was that neither consideration had precedence over the other. He proposed that the relevant guidance to officers making a decision on disclosure under the provisions should be amended: “45. ...so that the precedence that is given to the risk that failure to disclose would cause to the vulnerable group is removed. It should indicate that careful consideration is required in all cases where the disruption to the private life of anyone is judged to be as great, or more so, as the risk of non-disclosure to the vulnerable group. The advice that, where careful consideration is required, the rationale for disclosure should make it very clear why the human rights infringement outweighs the risk posed to the vulnerable group also needs to be reworded. It should no longer be assumed that the presumption was for disclosure unless there was a good reason for not doing so.” 108. Lord Neuberger, who indicated that his judgment largely echoed that of Lord Hope, was also firmly of the view that Article 8 was engaged in the case, noting: “68. ...An enhanced criminal record certificate ... which contains particulars of any convictions (potentially including spent convictions) or cautions ..., or any other information ‘which might be relevant’ and which ‘ought to be included in the certificate’ ...will often have a highly significant effect on the applicant. In the light of the wide ambit of section 115 (extending as it does to social workers and teachers, as well as to those ‘regularly caring for, training, supervising or being in sole charge of’ children), an adverse ECRC ... will often effectively shut off forever all employment opportunities for the applicant in a large number of different fields ...” 109. He further observed: “69. ... Even where the ECRC records a conviction (or caution) for a relatively minor, or questionably relevant, offence, a prospective employer may well feel it safer, particularly in the present culture, which, at least in its historical context, can be said to be unusually risk-averse and judgmental, to reject the applicant ...” 110. Lord Neuberger also rejected the argument that Article 8 was not engaged because under the relevant legislation the claimant herself had requested the ECRC, noting: “73. ... Where the legislature imposes on a commonplace action or relationship, such as a job application or selection process, a statutory fetter, whose terms would normally engage a person’s Convention right, it cannot avoid the engagement of the right by including in the fetter’s procedural provisions a term that the person must agree to those terms. Apart from this proposition being right in principle, it seems to me that, if it were otherwise, there would be an easy procedural device which the legislature could invoke in many cases to by-pass Convention rights.” 111. He considered the aim of Part V of the 1997 Act, namely to protect vulnerable people, to be unexceptionable and explained how this was achieved by the requirement that relevant information available to the police about an applicant for a post involving responsibility for such vulnerable people be provided to the prospective employer. He continued: “75. ... It is then for that employer to decide whether the information is relevant, and, if so, whether it justifies refusing to employ the applicant. As already mentioned, however, it seems to me realistic to assume that, in the majority of cases, it is likely that an adverse ECRC ... will represent something close to a killer blow to the hopes of a person who aspires to any post which falls within the scope of the section ...” 112. Turning to consider whether there was an infringement of Article 8 in the case, Lord Neuberger was prepared to proceed on the basis that there was “nothing objectionable” in the requirement that an ECRC had to contain details of convictions and cautions, even though, he noted, it might on occasions be “rather harsh” on the person concerned. However, like Lord Hope, he was of the view that where other information provided by the chief constable was concerned, the decision on whether to include it in an ECRC had to incorporate a proportionality assessment and it might well be necessary to seek the prior views of the person concerned. 113. Lords Saville and Brown agreed with Lord Hope and, in the case of Lord Brown, Lord Neuberger. 114. Lord Scott, in the minority, considered (at paragraph 57) that if the compilation and retention of the information was unexceptionable, and the information was relevant to the appellant’s suitability for the employment sought, then it was difficult to see on what basis her attack on the inclusion of the information in the ECRC could succeed. He continued: “58. It is at this point, as it seems to me, that it becomes necessary to remember that it was she who applied for the certificate. I do not doubt that the need for the certificate would have been impressed on her by CSE and that she would have realised that unless she agreed to make the application her chances of obtaining the employment position she desired would be reduced. She may or may not have had in mind the full implications of subsection (7) of section 115 and it would probably not have occurred to her that the history of her delinquent 13 year old son and her failure to have controlled his delinquency would be known to the police and might be considered relevant information. But it cannot, in my opinion, possibly be said that the police response showed a lack of respect for her private life. It was she who, in making the application for an ECRC, invited the exercise by the chief police officer of the statutory duty imposed by section 115(7).” 115. Lord Scott accordingly endorsed the approach taken in R (X). 7. R (C) v Chief Constable of Greater Manchester and Secretary of State for the Home Department [2010] EWCA 1601 and [2011] EWCA Civ 175 116. Following R (L), the High Court quashed a decision by the chief constable to disclose details of a sexual allegation made against the claimant in an ECRC on grounds of procedural impropriety, because the claimant’s views had not been sought and because the decision to disclose was disproportionate to the level of risk disclosed. The court granted an injunction to prevent future disclosure. 117. On appeal, the Court of Appeal upheld the decision to quash the disclosure on grounds of procedural impropriety but, emphasising that the primary decision-maker was the chief constable who would take a fresh decision on the basis of the material now before him, allowed the appeal against the injunction. 8. R (F and another) v Secretary of State for the Home Department [2010] UKSC 17 118. In R (F and another) v Secretary of State for the Home Department, the respondents were convicted sex offenders subject to notification requirements under section 82 of the Sexual Offences Act 2003 (SOA 2003), whereby all those sentenced to 30 months’ imprisonment or more for a sexual offence are registered on the sex offenders register and subject to a lifelong duty to notify police of their living and travelling arrangements, with no right for review. The question in the appeal was whether the absence of any right to review rendered the notification requirements disproportionate to the legitimate aims they sought to pursue and thus incompatible with Article 8 of the Convention. Lord Phillips noted: “41. The issue in this case is one of proportionality. It is common ground that the notification requirements interfere with offenders’ article 8 rights, that this interference is in accordance with the law and that it is directed at the legitimate aims of the prevention of crime and the protection of the rights and freedoms of others. The issue is whether the notification requirements, as embodied in the 2003 Act, and without any right to a review, are proportionate to that aim. That issue requires consideration of three questions. (i) What is the extent of the interference with article 8 rights? (ii) How valuable are the notification requirements in achieving the legitimate aims? and (iii) To what extent would that value be eroded if the notification requirements were made subject to review? The issue is a narrow one. The respondents’ case is that the notification requirements cannot be proportionate in the absence of any right to a review. The challenge has been to the absence of any right to a review, not to some of the features of the notification requirements that have the potential to be particularly onerous.” 119. He found that the notification requirements were capable of causing significant interference with Article 8 rights. However, he continued (at paragraph 51): “... This case turns, however, on one critical issue. If some of those who are subject to lifetime notification requirements no longer pose any significant risk of committing further sexual offences and it is possible for them to demonstrate that this is the case, there is no point in subjecting them to supervision or management or to the interference with their article 8 rights involved in visits to their local police stations in order to provide information about their places of residence and their travel plans. Indeed subjecting them to these requirements can only impose an unnecessary and unproductive burden on the responsible authorities. We were informed that there are now some 24,000 ex-offenders subject to notification requirements and this number will inevitably grow.” 120. He concluded: “56. No evidence has been placed before this court or the courts below that demonstrates that it is not possible to identify from among those convicted of serious offences, at any stage in their lives, some at least who pose no significant risk of re-offending. It is equally true that no evidence has been adduced that demonstrates that this is possible. This may well be because the necessary research has not been carried out to enable firm conclusions to be drawn on this topic. If uncertainty exists can this render proportionate the imposition of notification requirements for life without review under the precautionary principle? I do not believe that it can. 57. ... I think that it is obvious that there must be some circumstances in which an appropriate tribunal could reliably conclude that the risk of an individual carrying out a further sexual offence can be discounted to the extent that continuance of notification requirements is unjustified. As the courts below have observed, it is open to the legislature to impose an appropriately high threshold for review. Registration systems for sexual offenders are not uncommon in other jurisdictions. Those acting for the first respondent have drawn attention to registration requirements for sexual offenders in France, Ireland, the seven Australian States, Canada, South Africa and the United States. Almost all of these have provisions for review. This does not suggest that the review exercise is not practicable. 58. For these reasons I have concluded that ... the notification requirements constitute a disproportionate interference with article 8 rights because they make no provision for individual review of the requirements.” 121. The Supreme Court issued a declaration that section 82 of the SOA 2003 was incompatible with the Convention. III. RELEVANT COUNCIL OF EUROPE TEXTS A. Data protection 122. The Council of Europe Convention of 1981 for the protection of individuals with regard to automatic processing of personal data (“the Data Protection Convention”), which entered into force for the United Kingdom on 1 December 1987, defines “personal data” as any information relating to an identified or identifiable individual (“data subject”). Article 5, which deals with quality of data, provides: “Personal data undergoing automatic processing shall be: a. obtained and processed fairly and lawfully; b. stored for specified and legitimate purposes and not used in a way incompatible with those purposes; c. adequate, relevant and not excessive in relation to the purposes for which they are stored; ... e. preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored.” 123. Article 6 deals with “special categories of data” and stipulates that personal data relating to criminal convictions may not be processed automatically unless domestic law provides appropriate safeguards. 124. Pursuant to Article 9, derogations are permitted where they are necessary in a democratic society in the interests of, inter alia, public safety, the suppression of criminal offences or protecting the rights and freedoms of others. 125. The Committee of Ministers adopted Recommendation No. R (87) 15 regulating the use of personal data in the police sector on 17 September 1987, in the context of a sectoral approach to data protection intended to adapt the principles of the Data Protection Convention to the specific requirements of particular sectors. An Explanatory Memorandum (“EM”) sets out the background to the Recommendation’s adoption, and notes at paragraph 4: “Given the increased activities of police forces in the lives of individuals necessitated by new threats to society posed by terrorism, drug delinquency, etc as well as a general increase in criminality, it was felt even more necessary to establish clear guidelines for the police sector which indicate the necessary balance needed in our societies between the rights of the individual and legitimate police activities when the latter have recourse to data-processing techniques.” 126. It further observes that concerns which prompted the elaboration of the Data Protection Convention in regard to the increasing recourse to automation in all sectors are most acutely felt in the police sector, for it is in this domain that the consequences of a violation of the basic principles laid down in the Convention could weigh most heavily on the individual. 127. As regards the derogations permitted under Article 9 of the Data Protection Convention, the EM reiterates that they are only permitted if provided for by law and necessary in a democratic society in the interests of, inter alia, the “suppression of criminal offences”. It continues: “20 ... Bearing in mind that the European Court of Human Rights in its judgment in the Malone Case laid down a number of strict criteria (precision, certainty, foreseeability, etc), it is thought that the principles contained in this non-binding legal instrument can provide helpful guidance to the legislator as to the interpretation of the derogation in Article 9, paragraph 2, of the Data Protection Convention when regulating the collection, use, etc of personal data in the police sector. This point should be borne in mind, for example, in the context of paragraph 2.1.” 128. Principle 1.1 of the Recommendation provides: “Each member state should have an independent supervisory authority outside the police sector which should be responsible for ensuring respect for the principles contained in this recommendation.” 129. The EM emphasises the importance of such supervisory authority enjoying genuine independence from police control. 130. Principle 2 concerns collection of data and includes the following: “2.1 The collection of personal data for police purposes should be limited to such as is necessary for the prevention of a real danger or the suppression of a specific criminal offence. Any exception to this provision should be the subject of specific national legislation.” 131. The EM explains that Principle 2.1 excludes an “open-ended, indiscriminate” collection of data by the police and expresses a “qualitative and quantitative” approach to Article 5(c) of the Data Protection Convention. The Principle attempts to fix the boundaries to the exception in Article 9 of the Data Protection Convention by limiting the collection of personal data to such as are necessary for the prevention of a real danger or the suppression of a specific criminal offence, unless domestic law clearly authorises wider police powers to gather information. 132. Storage of data is addressed in Principle 3. Principle 3.1 provides that as far as possible, the storage of personal data for police purposes should be limited to accurate data and to such data as are necessary to allow police bodies to perform their lawful tasks within the framework of national law and their obligations arising from international law. The EM explains: “49. Personal data when collected will subsequently be the subject of a decision concerning their storage in police files. Principle 3.1 addresses the requirements of accuracy and storage limitation. The data stored should be accurate and limited to such data as are necessary to enable the police to perform its lawful tasks ... 50. This principle is important given the fact that the commitment of personal data to a police file may lead to a permanent record and indiscriminate storage of data may prejudice the rights and freedoms of the individual. It is also in the interests of the police that it has only accurate and reliable data at its disposal.” 133. Principle 5 deals with communication of data. Principle 5.1 permits communication of data between police bodies, to be used for police purposes, if there exists a legitimate interest for such communication within the framework of the legal powers of these bodies. In respect of communication to other public bodies, Principle 5.2 stipulates: “5.2.i. Communication of data to other public bodies should only be permissible if, in a particular case: a. there exists a clear legal obligation or authorisation, or with the authorisation of the supervisory authority, or if b. these data are indispensable to the recipient to enable him to fulfil his own lawful task and provided that the aim of the collection or processing to be carried out by the recipient is not incompatible with the original processing, and the legal obligations of the communicating body are not contrary to this. 5.2.ii. Furthermore, communication to other public bodies is exceptionally permissible if, in a particular case: ... b. the communication is necessary so as to prevent a serious and imminent danger.” 134. As to the possibility of communicating indispensable data to public bodies under Principle 5.2.i.b, the EM explains that it is recognised that certain public bodies engage in activities which are similar in some ways to police activities and that information held by the police may be of value to those activities. Regarding the possibility of communicating data to prevent a serious and imminent danger, the EM recalls that this will only “exceptionally” allow communication and that the danger must be both serious and imminent, given that Principle 5.2.ii is only concerned with exceptional cases justifying communication. 135. As regards communication to private parties, Principle 5.3 provides: “5.3.ii. The communication of data to private parties should only be permissible if, in a particular case, there exists a clear legal obligation or authorisation, or with the authorisation of the supervisory authority. 5.3.ii. Communication to private parties is exceptionally permissible if, in a particular case: ... b. the communication is necessary so as to prevent a serious and imminent danger.” 136. The EM acknowledges that it may occasionally be necessary for the police to communicate data to private bodies, although not on the same scale as envisaged in the case of mutual assistance between the police and other public bodies. It continues: “Once again, Principle 5.3 treats these as exceptional cases, requiring a clear legal obligation or authorisation (for example the consent of a magistrate), or the consent of the supervisory authority. In the absence of these factors, Principle 5.3 repeats the same conditions set out in Principle 5.2.ii.” 137. Concerning Principle 5 generally, the EM notes: “Outside the framework of communication within the police sector, the conditions governing transfer are stricter, given the fact that the communication may be for non-police purposes stricto sensu. The exceptional nature of the circumstances allowing communication set out in Principles 5.2 and 5.3 is stressed. It will be noted that circumstances a and b in both Principles 5.2.ii and 5.3.ii are specifically referred to as ‘exceptional’.” 138. Principle 7 deals with length of storage and updating of data. Pursuant to Principle 7.1 measures should be taken so that personal data kept for police purposes are deleted if they are no longer necessary for the purposes for which they were stored. It further provides: “... For this purpose, consideration shall in particular be given to the following criteria: the need to retain data in the light of the conclusion of an inquiry into a particular case; a final judicial decision, in particular an acquittal; rehabilitation; spent convictions; amnesties; the age of the data subject, particular categories of data.” 139. The EM explains that it is essential that periodic reviews of police files are undertaken to ensure that they are purged of superfluous or inaccurate data and kept up to date. It notes that Principle 7.1 lists certain considerations which should be borne in mind when determining whether or not data continue to be necessary for the prevention and suppression of crime or for the maintenance of public order. 140. Principle 7.2 provides: “Rules aimed at fixing storage periods for the different categories of personal data as well as regular checks on their quality should be established in agreement with the supervisory authority or in accordance with domestic law.” 141. The EM notes that domestic law may authorise the means for laying down such rules or that, alternatively, rules could be formulated by the supervisory authority itself in consultation with police bodies. It explains that where the police themselves elaborate rules, the supervisory authority should be consulted as to their content and application. B. Rehabilitation of offenders 142. Recommendation No. R (84) 10 of the Committee of Ministers on the criminal record and rehabilitation of convicted persons (adopted on 21 June 1984) notes in its preamble that any use of criminal record data outside the criminal trial context may jeopardise the convicted person’s chances of social reintegration and should therefore be restricted “to the utmost”. It invited member States to review their legislation with a view to introducing a number of measures where necessary, including provisions limiting the communication of criminal record information and provisions on rehabilitation of offenders, which would imply the prohibition of any reference to the convictions of a rehabilitated person except on compelling grounds provided for in national law. IV. RELEVANT EUROPEAN UNION TEXTS A. The Treaty on the Functioning of the European Union (“TFEU”) 143. The TFEU sets out in Article 16 the right to the protection of personal data concerning them. It requires the European Parliament and the Council to lay down the rules relating to the protection of individuals with regard to the processing of personal data by Union institutions, bodies, offices and agencies, and by the Member States when carrying out activities which fall within the scope of Union law; and the rules relating to the free movement of such data. B. Charter of Fundamental Rights of the European Union (2000) 144. The EU Charter of Fundamental Rights includes the right to protection of personal data. Article 8 of the Charter reads: “1. Everyone has the right to the protection of personal data concerning him or her. 2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified. 3. Compliance with these rules shall be subject to control by an independent authority.” C. Other instruments 145. Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (“the Data Protection Directive”) provides that the object of national laws on the processing of personal data is notably to protect the right to privacy as recognised both in Article 8 of the European Convention on Human Rights and in the general principles of Community law. The Directive sets out a number of principles in order to give substance to and amplify those contained in the Data Protection Convention of the Council of Europe. It allows Member States to adopt legislative measures to restrict the scope of certain obligations and rights provided for in the Directive when such a restriction constitutes notably a necessary measure for the prevention, investigation, detection and prosecution of criminal offences (Article 13). 146. Framework Decision 2008/977/JHA on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters (“the Data Protection Framework Decision”) was adopted on 27 November 2008. Its purpose is to ensure a high level of protection of the fundamental rights and freedoms of natural persons, and in particular their right to privacy, with respect to the processing of personal data in the framework of cross-border police and judicial cooperation in criminal matters while guaranteeing a high level of public safety. 147. Article 3 of the Data Protection Framework Decision provides that personal data may be collected by the competent authorities only for specified, explicit and legitimate purposes and may be processed only for the same purpose for which data were collected. Processing of the data must be lawful and adequate, relevant and not excessive in relation to the purposes for which they are collected. Article 5 provides that appropriate time-limits must be established for the erasure of personal data or for a periodic review of the need for the storage of the data. Procedural measures must be in place to ensure that these time-limits are observed. 148. In January 2012 the European Commission published proposals, based inter alia on Article 16 TFEU, for the comprehensive reform of the EU’s data protection framework. The proposals are currently under negotiation. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 149. The applicant complained under Article 7 about the retention and disclosure of her caution data, referring in particular to the change in policy subsequent to the administration of the caution, which has led to her caution being retained for life, and the impact on her employment prospects. 150. The Court reiterates that it is master of the characterisation to be given in law to the facts of the case (see Guerra and Others v. Italy, judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 223, § 44; Tătar and Tătar v. Romania (dec.), no. 67021/01, § 47, 5 July 2007; and Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 54, 17 September 2009). By virtue of the jura novit curia principle, it has, for example, previously considered of its own motion complaints under Articles not relied on by the parties (see, for example, Scoppola (No. 2), cited above, §§ 54-55; B.B. v. France, no. 5335/06, § 56, 17 December 2009 and Şerife Yiğit v. Turkey [GC], no. 3976/05, §§ 52-53, 2 November 2010). The Court considers that in the light of its case-law (see, for example, Leander v. Sweden, 26 March 1987, Series A no. 116; S. and Marper, cited above; and B.B., cited above) it is appropriate to examine the applicant’s complaints first from the standpoint of Article 8 of the Convention, which provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 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.” 151. The Government contended that no issue under Article 8 arose. A. Admissibility 1. The parties’ submissions (a) The Government 152. The Government invited the Court to declare the application inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention for failure to exhaust domestic remedies, emphasising the importance of allowing the State the opportunity to prevent or put right the alleged violations. 153. They noted that the applicant had not attempted to bring any legal proceedings to challenge the police retention of the caution or its inclusion on the criminal record certificate. Her reference to an application for legal aid was in respect of a potential claim against the Trust for failing to employ her, not a challenge to the retention or disclosure of the caution data. The advice from her lawyer in 2006 related to whether the issue of the caution itself could be revisited and not the legality of its retention beyond the five-year period. 154. The Government emphasised that as a matter of both principle and precedent, judicial review was available for an aggrieved individual to challenge police retention of the data in question. They contended that in light of the Human Rights Act (see paragraphs 72-76 above), the applicant could have pursued any allegation of a violation of a Convention right. She could have made a similar complaint to the Information Commissioner under the Data Protection Act (see paragraph 71 above). Neither of these remedies had been pursued. As a consequence of her failure, the domestic courts had not been able to examine her complaints and to take action if they agreed that a violation had occurred. The Government referred to the judicial review cases listed above concerning ECRCs as well as the Court of Appeal’s consideration in Chief Constable of Humberside of the retention of police information as evidence that the courts in England adopted a careful and considered analysis of the competing rights. In particular, the recent case of R (L) was evidence that the courts were willing to give careful scrutiny to the lawfulness and proportionality of retention and disclosure of information under the 1997 Act by reference to Convention rights. The same general principles would be expected to be applied by the Northern Irish courts. 155. Then Government further explained that in any judicial review proceedings, the defendant, who would be the relevant chief constable, would be entitled to adduce evidence to explain why a particular retention decision was made, and what ameliorating measures might be operated. (b) The applicant 156. The applicant emphasised that the burden of proof was on a Government claiming non-exhaustion to satisfy the Court that an effective remedy was available in theory and in practice at the relevant time. Further, she noted that the rule of exhaustion was neither absolute nor capable of being applied automatically: it had to be applied with some degree of flexibility and without excessive formalism in the human rights context. 157. The applicant also disputed the suggestion that a remedy was provided by the Data Protection Act. She noted the possibility for an individual to check the accuracy of data held about them and to seek amendment of inaccurate data, but emphasised that she did not dispute the accuracy of the data in her case. 158. She explained that she had sought legal advice on the merits of judicial review and had applied for legal aid, which had been refused. In her view this had determined her attempt to exhaust domestic remedies. 2. The Court’s assessment 159. The Court observes that the applicant’s complaint to the Court was lodged following the withdrawal of an offer of employment which had been made to her after she had disclosed, and the Criminal Records Office had verified, the existence of a caution. The Court is satisfied that the job offer was withdrawn on account of the disclosure of the caution; the Government have not sought to argue otherwise. The applicant complained about the change in policy regarding retention of caution data, which means that it would now be retained for life, and the impact of this change on her employment prospects. It is clear that for as long as her data are retained and capable of being disclosed, she remains a victim of any potential violation of Article 8 arising from retention or disclosure. As Waller LJ noted in Chief Constable of Humberside, the complaint about retention in reality flows not from the retention itself but from the fact that, if retained, disclosure may follow (see paragraph 94 above). It is clear that if the applicant was able to have her data deleted, then it would no longer be available for disclosure. Alternatively, a remedy which prevented the disclosure of the data might have provided adequate redress. The Court’s examination of whether she has exhausted available remedies must therefore necessarily encompass alleged past, present and potential future violations in respect of the retention and disclosure of the applicant’s data. 160. In this regard the Court observes that the framework governing retention and disclosure of criminal record data in Northern Ireland has undergone a number of changes, both legislative and policy-based, since the administration of the applicant’s caution in 2000. As the applicant’s complaint is of a continuing nature, the Court must consider the Government’s objection in the context of the different applicable regimes. 161. It is appropriate to address first the applicant’s contention that she sought legal advice and legal aid with a view to challenging the retention and disclosure of her caution data. In this regard, the Court notes, as the Government pointed out, that the legal advice she received from her solicitors in 2006 concerned the prospects of a challenge to the issue of the caution, and not its retention or disclosure (see paragraph 15 above). Similarly, as the Government explained, the applicant’s attempt to secure legal aid in 2007 was in respect of a potential claim against the Trust for refusing to employ her, and not against the chief constable for retention and disclosure of her caution data (see paragraph 17 above). The Court therefore accepts that she has not sought to pursue legal proceedings against the police in respect of the retention or disclosure of her data. 162. Article 35 § 1 requires that the applicant exhaust available and effective domestic remedies before seeking redress before this Court. The Court recalls that where the Government claim non-exhaustion they must satisfy the Court that the remedy proposed was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see, inter alia, Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports of Judgments and Decisions 1996-IV; Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006-II; and Kennedy v. the United Kingdom, no. 26839/05, § 109, 18 May 2010). 163. The application of the rule of exhaustion of domestic remedies must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting States have agreed to set up. The Court has accordingly recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate, as well as the personal circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies (see İlhan v. Turkey [GC], no. 22277/93, § 59, ECHR 2000-VII; D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 116, ECHR 2007‑IV; and Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04 and 21819/04, § 70, ECHR 2010). 164. The Government argued that the applicant could have brought legal proceedings to challenge the police retention of the caution or its inclusion in any criminal record certificate. Such an action could have proceeded by way of judicial review or by way of a complaint to the Information Commissioner under the Data Protection Act. In support of their submissions, the Government have referred to a number of cases decided by the domestic courts as illustrative of the courts’ jurisdiction and willingness to assess compliance of retention or disclosure of criminal record data with Article 8 of the Convention (see paragraphs 77-121 above). 165. The Court observes, first, that the majority of these cases concerned only disclosure, and not retention, of criminal record data. Second, the disclosure in the cases related to other “information” pursuant to section 113B(4) (or its predecessor section) of the 1997 Act (see paragraph 55 above), and not disclosure of caution or conviction information either under common law police powers or pursuant to section 113A(3) or section 113B(3) of the Act (see paragraphs 49 and 54 above). Third, none of the cases to which the Government have referred were brought in respect of the legal framework in place in Northern Ireland. It is with these considerations in mind that the Court now turns to examine, in the circumstances of the applicant’s case and in light of the judgments identified, whether either of the remedies proposed by the Government was an effective one available in theory and in practice, that is to say, that it was accessible, was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. 166. The Court notes that in 2006 retention and disclosure of caution data in Northern Ireland were carried out on the basis of the common law powers of the police (see paragraphs 24 and 47 above), and that the general principles of the Data Protection Act applied to the processing of any data. Guidance was available in the form of the MOPI Guidance (see paragraph 36-41 and 58-59 above) and the ACPO Guidelines (see paragraphs 42-46 and 60 above); it is not clear whether the 2005 Code of Practice was adopted by the PSNI (see paragraphs 33-35 above). 167. The guidance demonstrates that in deciding whether to retain data, the police enjoy a certain degree of discretion (see paragraphs 37, 39-41 and 46 above). However, the MOPI Guidance refers to a “presumption” in favour of retention where the data are considered necessary and recommends that in cases concerning serious offences, records be retained until the subject has reached one hundred years of age (see paragraphs 39-40 above). The ACPO Guidelines specify in their general principles that records are to be retained until a subject reaches one hundred years of age; it appears that no distinction is drawn between offences for the purpose of the length of the retention period (see paragraph 45 above). Although the Guidelines refer to the discretion enjoyed by chief constables in “exceptional circumstances” to authorise deletion of data, the circumstances envisaged are very limited: Appendix 2 indicates that exceptional cases will be rare and gives the example of where it is established beyond reasonable doubt that no offence existed (see paragraph 46 above). 168. As regards disclosure of criminal record information for employment purposes, the MOPI Guidance refers to the statutory scheme for disclosure created by the 1997 Act and to the need for a balancing exercise to be conducted in the context of the common law powers of the police to disclose data (see paragraphs 58-59 above). The ACPO Guidelines set out the “stepping down” policy of limiting access to certain data after a certain time period has elapsed; however, it appears that the “stepping down” policy does not apply to cases concerning requests for criminal record checks (see paragraphs 60 and 89 above). 169. In these circumstances, and having regard in particular to the provisions of the Human Rights Act (see paragraphs 72-76 above) and the Data Protection Act (see paragraphs 65-71 above), the Court is satisfied that the applicant could in theory have sought to commence judicial review proceedings in respect of a decision to retain or disclose her caution data or could have made a complaint to the Information Commissioner, seeking to have the caution data deleted or to prevent its disclosure. In any such proceedings she could have sought to rely on the data protection principles and Article 8 of the Convention. It is therefore necessary to examine whether such proceedings offered reasonable prospects of success. 170. First, as regards retention of criminal record data, no judgment handed down by late 2006 or early 2007 in which individuals sought to challenge retention of criminal record data, and in particular data relating to a caution, relying on the Convention or on the data protection principles has been brought to the attention of the Court. Given the nature of the guidance on retention to which the Court has referred above (see paragraph 167 above) and the generous approach to the powers of the police to retain data set out therein, this is not surprising. The potential for a successful challenge to the exercise of the chief constable’s discretion to retain data, or indeed to the policy itself, was further diminished by the position of the domestic courts at the time, which tended to consider that Article 8 did not apply to mere retention of data or, if it did, that any interference was minor (see the House of Lords’ judgment regarding retention of DNA data which was challenged in S. and Marper, cited above, summarised at §§ 15-25 of that judgment). 171. As regards a challenge to the disclosure of the caution data, the Court observes that in its 2004 judgment in R (X) dealing with disclosure under the 1997 Act of other “information” on an ECRC under the 1997 Act, the Court of Appeal took a robust approach to the exercise of discretion by the chief constable in choosing to disclose information in the context of a criminal record check. Lord Woolf CJ indicated that the chief constable was “under a duty” to disclose any information which might be relevant unless there was some good reason for not making the disclosure (see paragraph 79 above). He further found that the chief constable was not required to invite representations from the subject of the criminal record check before deciding what to include in the certificate (see paragraph 80 above). Specifically on the question of Article 8 considerations, the Court of Appeal expressed the view that it was difficult to see how a chief constable’s decision to disclose could ever be challenged (see paragraph 81 above). The Court observes that the case was decided against the backdrop of a clearly-defined legislative framework (i.e., the 1997 Act, which was in force in England and Wales at the time) which the court took to be in compliance with Article 8 (see paragraph 78 above). However, it considers that the court’s approach to the exercise of discretion is nonetheless indicative of a wide discretion afforded to the police to decide on questions of disclosure and a rejection of any need for the participation of the data subject in the decision to disclose criminal record data. It is also relevant to emphasise that the applicant’s case did not concern disclosure of other information under section 113B(4) but of caution data, the mandatory disclosure of which required by the 1997 Act reveals the view of the legislature that such information will always be relevant. It is significant that the Government have not pointed to any case decided at that time in which an individual had successfully challenged a decision to disclose criminal record data, either concerning convictions and caution data or in respect of section 113B(4) information. Further, no details of any specific guidance setting out the factors which had to be taken into account in making any disclosure decision in the employment context in Northern Ireland at the time have been provided to the Court. 172. Having regard to the continuing nature of the applicant’s complaint about the retention and potential future disclosure of her data (see paragraph 159 above), it is also relevant to examine developments which have occurred since the applicant’s case was lodged. 173. First, as regards retention of criminal record data, in 2009 the Court of Appeal handed down its judgment in the case of Chief Constable of Humberside, which considered whether the Data Protection Act or Article 8 required deletion of old convictions following a decision by the Information Commissioner that it did. While the case was brought by a number of individuals seeking to have their own data deleted, Waller LJ emphasised that the ramifications of the cases were far wider than the cases themselves, since if the convictions at issue were to be deleted and the police were to treat people consistently, the result would be the deletion of around one million convictions (see paragraph 88 above). It follows that the scope of the appeals went beyond the personal interests of the individuals directly involved in the proceedings so that, in that sense, the decision of the Court of Appeal was of more general application and affected others, such as the applicant, in a similar position. 174. Waller LJ considered the argument that there was no statutory obligation on the police to retain data under the Police Act, but noted that “on any view” the Act seemed to recognise that the data would be there to be provided (see paragraph 90 above). He was of the opinion that in assessing whether the data retained were excessive or were being retained for longer than necessary, there was “only one answer” since in order to be able to supply accurate records of convictions, a complete record of conviction, spent or otherwise, was required. This was, he said, a “complete answer to the appeal” (see paragraph 92 above). Even if a narrower approach to police purposes were to be adopted, Waller LJ indicated that the retention of the data would remain lawful because if the police said rationally and reasonably that convictions, however old or minor, had a value in the work they did, then that should be the end of the matter (see paragraph 93 above). As to whether the retention of data violated Article 8 of the Convention, Waller LJ doubted whether Article 8 applied but, even if it did, considered that the retention was in accordance with the law and necessary in a democratic society (see paragraph 96 above). Carnwath LJ also expressed some doubt as to whether Article 8 applied to the recording of a conviction (see paragraph 98 above). 175. It is also of relevance that one of the individuals in that case sought to argue that continued retention of data relating to a reprimand was unfair because she had been assured that it would be removed when she reached the age of eighteen. Waller LJ, with whom Hughes LJ agreed, dismissed this argument, indicating that if it was fair to retain data under the new policy then it did not become unfair simply because the individual had been told what the policy was at the time she was reprimanded. He further referred to the fact that the deletion of her reprimand would lead to the deletion of many others and would therefore be likely to prejudice the prevention and detection of crime and the apprehension and prosecution of offenders (see paragraph 95 above). 176. Following the Court of Appeal’s findings in Chief Constable of Humberside, and the refusal of leave by the Supreme Court (see paragraph 100 above), it is not clear how any proceedings commenced or complaint lodged by the applicant in order to challenge the retention of her caution data could seek to distinguish that case and thus offer her reasonable prospects of success in obtaining deletion of her data. The Government have not specified how she could have done so, nor have they clarified whether, in their view, in the light of that judgment, the judicial review remedy proposed by them offered to the applicant “reasonable prospects of success” in respect of the continued retention of her data. 177. Second, as regards the disclosure of the applicant’s data, the position changed significantly with the entry into force in Northern Ireland of the relevant provisions of the Police Act 1997. While the applicant does not allege that her data have been disclosed pursuant to these provisions, as the Court has noted above her complaint clearly encompasses the continuing threat of disclosure arising from the fact that her data have been retained (see paragraph 159 above). Sections 113A(3) and 113B(3) impose a mandatory obligation to disclose data pertaining to cautions held in central records, including cautions which are spent pursuant to legislation covering rehabilitation of offenders, in both CRCs and ECRCs (see paragraphs 49 and 54 above). Unlike the case of other information included in an ECRC pursuant to section 113B(4) (see paragraph 55 above), there is no discretion afforded to chief constables to choose to omit data pertaining to cautions, and any such data retained in central records must accordingly be disclosed. 178. In these circumstances, the Court is satisfied that a challenge to the disclosure of caution data following the entry into force of the 1997 Act in Northern Ireland would necessarily have to proceed by way of a challenge to sections 113A and 113B themselves. Pursuant to the Human Rights Act, it would be open to the applicant to request that the provisions be interpreted in a manner compatible with the Convention or to seek a declaration of incompatibility pursuant to section 4(2) of Act (see paragraphs 72-73 above). The Government did not comment on whether, in their view, the relevant provisions could be interpreted in a compatible manner. In light of the information before it, and in particular given the clear terms of the legislation, the Court is not persuaded that the possibility of proceedings seeking a compliant interpretation under the Human Rights Act offered reasonable prospects of success. Although a declaration of incompatibility could be sought, there is no obligation following the making of such a declaration for the Government to amend the legislation and no entitlement to damages arises. The Court has therefore previously indicated that a declaration of incompatibility cannot be considered an effective remedy for the purposes of Article 35 § 1 of the Convention (see Burden v. the United Kingdom [GC], no. 13378/05, §§ 43-44, ECHR 2008; and Kennedy, cited above, § 109) and it sees no reason to reach a different conclusion in the present case. 179. Having regard to its review of the case-law above, to the failure of the Government to point to any case where a claim for judicial review of a decision to retain data or a complaint under the Data Protection Act regarding retention was successful, and to the provisions of sections 113A and 113B of the Police Act, the Court is not satisfied that the Government have demonstrated the existence of a remedy apt to afford the applicant redress for her complaints or offering reasonable prospects of success either in 2007, when she lodged her case with this Court, or at the present time. The Government’s objection is accordingly dismissed. 180. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions (a) The applicant 181. The applicant argued that retention of the caution data engaged her right to respect for her private life because it had affected her ability to secure employment in her chosen field. 182. Although she accepted that she had disclosed the caution herself, she had done so because she was obliged to and she considered that it was simply not arguable that she could have simply concealed the fact of the caution. 183. She contended that it was necessary to examine the proportionality of the retention of the caution data on the criminal record for a prolonged period. For this purpose, individual circumstances had to be considered. While the applicant accepted that the change in policy was intended to secure the protection of children, the automatic nature of the rule was problematic. In the applicant’s case, the caution related to action taken in the heat of the moment in a family situation with very specific circumstances. There was no suggestion that the applicant represented a general threat to children and the continued retention of her data therefore did not, she contended, pursue the legitimate aim of protecting children. It was clear from the correspondence with the police that the only relevant factor was the code applied to her caution (see paragraph 14 above). She further argued that there was no review process to assess the necessity of continued retention of the caution data. (b) The Government 184. The Government submitted that there was a distinction between the mere retention of data and their subsequent disclosure. They contended that mere retention had no particular effect on an individual or his rights under Article 8, referring to Waller LJ’s comments in Chief Constable of Humberside (see paragraph 97 above). They distinguished the Court’s judgment in S. and Marper on the grounds that the retention of the caution data in the present case did not concern any latent information about an individual of the type that might exist in cellular samples. In their view, retention of criminal record data by the police was an inevitable and commonplace feature of any effective and proper criminal justice system and did not interfere with Article 8 rights in any meaningful way. 185. In any event the Government argued that both retention and disclosure of the caution data complied with Article 8 § 2 of the Convention. As regards retention, the Government emphasised that it occurred in accordance with the law in a number of well-established ways, pursuant to common law powers as police officers and their statutory powers of policing and in accordance with the principles set out in the Data Protection Act. It pursued the legitimate aims of public safety, the prevention of disorder or crime, the protection of health or morals or the protection of the rights and freedoms of others. Finally, retention was also necessary and proportionate. Retention was primarily a matter of judgment for the individual police force or Government in question in accordance with the margin of appreciation. However, retention was usually necessary and proportionate as it was important for the police to retain records of what had happened. They referred in this respect to the MOPI Guidance 2006 (see paragraphs 36-41 above). 186. In respect of disclosure, the Government emphasised that in the applicant’s case it took place at her request and with her consent. However, and in any case, they argued that an assessment of the need for disclosure was a matter for the policy judgment of the State in question and fell within the margin of appreciation, regard being had to the objectives of the legislation and the relevance of the information to the employment being sought. An individual dissatisfied with disclosure in her case could challenge it by way of judicial review or pursue a complaint to the Information Commissioner. In the applicant’s case, the disclosure was made in accordance with the law and the applicant does not suggest otherwise. It took place for a legitimate purpose, namely the prevention of disorder and crime and the protection of the rights and freedoms of others. Finally it was both necessary and proportionate to the aim pursued. In this regard it was relevant that the applicant herself requested the disclosure; she was applying for a job working with children and vulnerable adults; she recognised the relevance of the incident to her employment; and the disclosure was factually correct. 2. The Court’s assessment (a) Applicability of Article 8 187. The Court reiterates that both the storing of information relating to an individual’s private life and the release of such information come within the scope of Article 8 § 1 (see Leander, cited above, § 48; Amann v. Switzerland [GC], no. 27798/95, §§ 65 and 69-70, ECHR 2000-II; Rotaru v. Romania [GC], no. 28341/95, § 43, ECHR 2000‑V. See also S. and Marper, cited above, § 67; and Khelili v. Switzerland, no. 16188/07, § 55, 18 October 2011, on the applicability of Article 8 to the storage of data). Even public information can fall within the scope of private life where it is systematically collected and stored in files held by the authorities (see Rotaru, cited above, § 43; P.G. and J.H., cited above, § 57; Segerstedt-Wiberg and Others v. Sweden, no. 62332/00, § 72, ECHR 2006‑VII; and Cemalettin Canlı v. Turkey, no. 22427/04, § 33, 18 November 2008). This is all the more true where the information concerns a person’s distant past (Rotaru, cited above, § 43; and Cemalettin Canlı, cited above, § 33). The question therefore arises in the present case whether the data relating to the applicant’s caution stored in police records constitute data relating to the applicant’s “private life” and, if so, whether there has been an interference with her right to respect for private life. 188. The Court notes at the outset that the data in question constitute both “personal data” and “sensitive personal data” within the meaning of the Data Protection Act 1998 (see paragraph 67 above). They also constitute “personal data” and are identified as a special category of data under the Council of Europe’s Data Protection Convention (see paragraphs 122-123 above). Further, the data form part of the applicant’s criminal record (see Rotaru, cited above, §§ 43-46; and B.B., cited above, § 57). In this regard the Court, like Lord Hope in R (L), emphasises that although data contained in the criminal record are, in one sense, public information, their systematic storing in central records means that they are available for disclosure long after the event when everyone other than the person concerned is likely to have forgotten about it, and all the more so where, as in the present case, the caution has occurred in private. Thus as the conviction or caution itself recedes into the past, it becomes a part of the person’s private life which must be respected (see Rotaru, cited above, §§ 43-44). In the present case, the administration of the caution occurred almost twelve years ago. 189. The Government referred several times in their written submissions to the fact that the applicant herself disclosed details of the caution to her prospective employer, and that the details she disclosed were merely confirmed by the Criminal Records Office. The Court observes that the posts for which the applicant applied were subject to vetting. In this context she was asked for details of her conviction and caution history and provided them as requested. The Court notes and agrees with the comments of Lords Hope and Neuberger in R (L), to the effect that the fact that disclosure follows upon a request by the data subject or with her consent is no answer to concerns regarding the compatibility of disclosure with Article 8 of the Convention. Individuals have no real choice if an employer in their chosen profession insists, and is entitled to do so, on disclosure: as Lord Hope noted, consent to a request for criminal record data is conditional on the right to respect for private life being respected (see paragraph 106 above). The applicant’s agreement to disclosure does not deprive her of the protection afforded by the Convention (see paragraph 110 above). 190. The Court therefore finds that Article 8 applies in the present case to the retention and disclosure of the caution, and that the retention and disclosure of the data amount to an interference with that Article. (b) Compliance with Article 8 191. In order to be justified under Article 8 § 2 of the Convention, any interference must be in accordance with the law, pursue one of the listed legitimate aims and be necessary in a democratic society. 192. The applicant did not make any submissions as to whether the interference was lawful. The Government contended that the interference was in accordance with the law. 193. The requirement that any interference must be “in accordance with the law” under Article 8 § 2 means that the impugned measure must have some basis in domestic law and be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention and inherent in the object and purpose of Article 8. The law must thus be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct. For domestic law to meet these requirements, it must afford adequate legal protection against arbitrariness and accordingly indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise (see Malone v. the United Kingdom, 2 August 1984, §§ 66-68, Series A no. 82; Rotaru, cited above, §§ 52 and 55; Liberty and Others v. the United Kingdom, no. 58243/00, § 59, 1 July 2008; and S. and Marper, cited above, § 95). 194. The Court recalls that in a case concerning covert listening devices, it found a violation of Article 8 because there existed no statutory system to regulate their use and the guidelines applicable at the relevant time were neither legally binding nor directly publicly accessible (see Khan v. the United Kingdom, no. 35394/97, § 27, ECHR 2000‑V). In Malone, cited above, §§ 69-80, it found a violation of Article 8 because the law in England and Wales governing interception of communications for police purposes was “somewhat obscure and open to differing interpretations” and on the evidence before the Court, it could not be said with any reasonable certainty what elements of the powers to intercept were incorporated in legal rules and what elements remained within the discretion of the executive. As a result of the attendant obscurity and uncertainty as to the state of the law the Court concluded that it did not indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities (see also Liberty and Others, cited above, §§ 64-70). 195. The Court considers it essential, in the context of the recording and communication of criminal record data as in telephone tapping, secret surveillance and covert intelligence-gathering, to have clear, detailed rules governing the scope and application of measures; as well as minimum safeguards concerning, inter alia, duration, storage, usage, access of third parties, procedures for preserving the integrity and confidentiality of data and procedures for their destruction, thus providing sufficient guarantees against the risk of abuse and arbitrariness (see S. and Marper, cited above, § 99, and the references therein). There are various crucial stages at which data protection issues under Article 8 of the Convention may arise, including during collection, storage, use and communication of data. At each stage, appropriate and adequate safeguards which reflect the principles elaborated in applicable data protection instruments and prevent arbitrary and disproportionate interference with Article 8 rights must be in place. 196. The provisions and principles of the Data Protection Act, the Data Protection Convention and Recommendation No. R (87) 15 are of some importance (see paragraphs 65-71 and 122-141 above). The Court emphasises in particular the terms of Principle 2.1 of the Recommendation, which excludes the open-ended and indiscriminate collection of data except where specific legislation is enacted to authorise such collection (see paragraph 130 above). The Court further draws attention to Principle 5 which sets out the need for a clear legal obligation or authorisation to communicate data to bodies outside the police in most cases, and the exceptional nature of any communication, in the absence of any such obligation or authorisation, intended to prevent serious and imminent danger (see paragraphs 133-135 above). Finally, the Court refers to the terms of Principle 7 of the Recommendation, which sets out a list of considerations to be taken into account when assessing the duration of any storage of data including rehabilitation, spent convictions, the age of the subject and the category of data concerned (see paragraph 138 above). 197. The Court also notes that the Supreme Court in R (F and another) recognised the need for a right to review in respect of the lifelong notification requirements imposed pursuant to sex offenders’ legislation (see paragraph 120 above). In doing so, Lord Phillips noted that no evidence had been placed before the court that demonstrated that it was not possible to identify from among those convicted of serious offences, at any stage in their lives, some at least who posed no significant risk of reoffending. In light of the ensuing uncertainty, he considered that the imposition of notification requirements for life was not proportionate. The Court is of the view that similar considerations apply in the context of a system for retaining and disclosing criminal record information to prospective employers. 198. The Court observes that the recording system in place in Northern Ireland covers not only convictions but includes non-conviction disposals such as cautions, warnings and reprimands. A significant amount of additional data recorded by police forces is also retained. It is clear from the available guidance that both the recording and, at least, the initial retention of all relevant data are intended to be automatic. It further appears from the policy documents provided that a general presumption in favour of retention applies, and that as regards data held in central records which have not been shown to be inaccurate, retention until the data subject has attained one hundred years of age is standard in all cases. There can therefore be no doubt that the scope and application of the system for retention and disclosure is extensive. 199. The Court recognises that there may be a need for a comprehensive record of all cautions, conviction, warnings, reprimands, acquittals and even other information of the nature currently disclosed pursuant to section 113B(4) of the 1997 Act. However, the indiscriminate and open-ended collection of criminal record data is unlikely to comply with the requirements of Article 8 in the absence of clear and detailed statutory regulations clarifying the safeguards applicable and setting out the rules governing, inter alia, the circumstances in which data can be collected, the duration of their storage, the use to which they can be put and the circumstances in which they may be destroyed. 200. Further, the greater the scope of the recording system, and thus the greater the amount and sensitivity of data held and available for disclosure, the more important the content of the safeguards to be applied at the various crucial stages in the subsequent processing of the data. The Court considers that the obligation on the authorities responsible for retaining and disclosing criminal record data to secure respect for private life is particularly important, given the nature of the data held and the potentially devastating consequences of their disclosure. In R (L), Lord Hope noted that in 2008/2009 almost 275,000 requests were made for ECRCs alone (see paragraph 105 above). This number is significant and demonstrates the wide reach of the legislation requiring disclosure. As Lord Neuberger indicated, even where the criminal record certificate records a conviction or caution for a relatively minor, or questionably relevant, offence, a prospective employer may well feel it safer to reject the applicant (see paragraph 108 above; see also the views expressed in the Divisional Court in R (Pinnington), at paragraph 87 above). The Court agrees with Lord Neuberger that it is realistic to assume that, in the majority of cases, an adverse criminal record certificate will represent something close to a “killer blow” to the hopes of a person who aspires to any post which falls within the scope of disclosure requirements (see paragraph 111 above). 201. It is against this backdrop that the lawfulness of the measures for retention and disclosure of criminal record data, and in particular the adequacy of the safeguards in place, must be assessed. 202. The Court reiterates that there is no statutory law in respect of Northern Ireland which governs the collection and storage of data regarding the administration of cautions. Retention of such data is carried out pursuant to the common law powers of the police, in accordance with the general principles set out in the Data Protection Act. In the absence of any statutory provisions, a number of policy documents which apply in Northern Ireland have been identified by the Government (see paragraphs 33-46 above). As noted above, it is clear from the MOPI Guidance and the ACPO Guidelines that the recording and initial retention of caution data are intended in practice to be automatic. While reference is made in the MOPI Guidance to a review of retention after a six-year period, the criteria for review appear to be very restrictive. The Guidance notes that there is a presumption in favour of retention and the review schedule requires police to retain data in the category of “Certain Public Protection Matters” until the data subject is deemed to have reached one hundred years of age, regardless of the type or classification of data or grade of the intelligence concerned (see paragraphs 39-40 above). Any review in such cases seems intended to focus on whether the data are adequate and up to date. Pursuant to the ACPO Guidelines, it appears that data held in central police records are now automatically retained, regardless of the seriousness of the offence in question, until the person is deemed to have reached one hundred years of age. The ACPO Guidelines themselves explain that they are based on a format of restricting access to data, rather than deleting them. While deletion requests can be made under the ACPO Guidelines, they should only be granted in exceptional circumstances (see paragraphs 43-46 above). As noted above the examples given as to what constitute exceptional circumstances do not suggest a possibility of deletion being ordered in any case where the data subject admits having committed an offence and the data are accurate. 203. As for disclosure of caution data, at the relevant time there was no statutory framework in place in Northern Ireland which governed the communication of such data by the police to prospective employers. The disclosure of the applicant’s caution data took place pursuant to the common law powers of the police, in accordance with the general principles set out in the Data Protection Act. The only policy guidance to which the Government have referred is contained in the ACPO Guidelines and the MOPI Guidance. The MOPI Guidance refers to the comprehensive system for disclosure in the employment vetting context set out in the 1997 Act, which did not apply in Northern Ireland at the time, and to general disclosure for police purposes under common law powers (see paragraph 58-59 above). The Guidance explains that in this context a balancing exercise must be carried out, but specific information regarding the scope of the discretion to disclose and the factors which are relevant to the exercise of such powers in the context of disclosure of criminal record information is not provided. Although the ACPO Guidelines make reference to a stepping down policy to limit access to data after a certain time period has passed, as noted above it appears that stepped down data were still intended to be available for disclosure in the context of requests for criminal record checks (see paragraphs 60 and 89 above). 204. Regarding any possible future disclosure of the applicant’s caution data, the Court observes that there is now a statutory framework in place for disclosure of criminal record information to prospective employers. Pursuant to the legislation now in place, caution data contained in central records, including where applicable information on spent cautions, must be disclosed in the context of a standard or enhanced criminal record check. No distinction is made based on the seriousness or the circumstances of the offence, the time which has elapsed since the offence was committed and whether the caution is spent. In short, there appears to be no scope for the exercise of any discretion in the disclosure exercise. Nor, as a consequence of the mandatory nature of the disclosure, is there any provision for the making of prior representations by the data subject to prevent the data being disclosed either generally or in a specific case. The applicable legislation does not allow for any assessment at any stage in the disclosure process of the relevance of conviction or caution data held in central records to the employment sought, or of the extent to which the data subject may be perceived as continuing to pose a risk such that the disclosure of the data to the employer is justified. In this regard the Court takes note of the offer made by the police in 2006 to add a comment to the applicant’s record to the effect that the incident was domestically related and that in any vetting context she should be approached for an explanation (see paragraph 16 above). It is unclear whether such addition could have any place in the disclosure system envisaged by the 1997 Act given the automatic nature of the disclosure exercise in respect of caution data held in central records. In any event, the apparent preference of many employers for a clean criminal record certificate (see paragraphs 87, 108 and 111 above) would deprive such addition of any real value. 205. As regards specifically the fact that the retention policy changed after the administration of the applicant’s caution, the Court notes that the applicant consented to the administration of the caution on the basis that it would be deleted from her record after five years. The Government have confirmed that this was the policy of the PSNI at the relevant time (see paragraph 25 above. See also the 1995 ACPO Code of Practice, paragraph 29 above). The police reply to the applicant’s query in March 2003 is consistent with this understanding and confirmed that the caution would remain on her record until 17 November 2005 (see paragraph 10 above). The Court notes that in accepting the caution, the applicant waived her fair trial rights in respect of the offence in issue. It is not for the Court to assess whether she would, with the benefit of hindsight, have been in a better position now had she refused the caution. It must be recalled that the administration of the caution relieved her of the stress and anxiety of a potential criminal trial, which could have resulted in a custodial sentence had she been found guilty. However, the Court expresses concern about the change in policy, which occurred several years after the applicant had accepted the caution and which was to have significant effects on her employment prospects. 206. In the present case, the Court highlights the absence of a clear legislative framework for the collection and storage of data, and the lack of clarity as to the scope, extent and restrictions of the common law powers of the police to retain and disclose caution data. It further refers to the absence of any mechanism for independent review of a decision to retain or disclose data, either under common law police powers or pursuant to Part V of the 1997 Act. Finally, the Court notes the limited filtering arrangements in respect of disclosures made under the provisions of the 1997 Act: as regards mandatory disclosure under section 113A, no distinction is made on the basis of the nature of the offence, the disposal in the case, the time which has elapsed since the offence took place or the relevance of the data to the employment sought. 207. The cumulative effect of these shortcomings is that the Court is not satisfied that there were, and are, sufficient safeguards in the system for retention and disclosure of criminal record data to ensure that data relating to the applicant’s private life have not been, and will not be, disclosed in violation of her right to respect for her private life. The retention and disclosure of the applicant’s caution data accordingly cannot be regarded as being in accordance with the law. There has therefore been a violation of Article 8 of the Convention in the present case. This conclusion obviates the need for the Court to determine whether the interference was “necessary in a democratic society” for one of the aims enumerated therein. II. ALLEGED VIOLATION OF ARTICLES 6 AND 7 OF THE CONVENTION 208. The applicant complained under Article 7 of the Convention about the change in policy concerning retention of caution data. The Court of its own motion invited the parties to submit written observations on whether there had been a violation of Article 6 § 1 of the Convention. 209. The Court is prepared to accept that the complaints under Article 6 § 1 and Article 7 are arguable in the particular circumstances of the case and it therefore declares them admissible. However, it satisfied that the substance of the applicant’s complaint concerning the retention and disclosure of her caution data has been addressed in the context of its examination under Article 8 above. It has found a violation of that Article as regards the system for retention and disclosure of caution data. In these circumstances it considers that it is not necessary to examine the complaint under Article 6 and Article 7 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 210. 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.” 211. The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award her any sum on that account. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 8 of the Convention; 3. Holds that there is no need to examine the complaints under Articles 6 and 7 of the Convention. Done in English, and notified in writing on 13 November 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyLech GarlickiRegistrarPresident

FOURTH SECTION CASE OF KAKOULLI v. TURKEY (Application no. 38595/97) JUDGMENT STRASBOURG 22 November 2005 FINAL 22/02/2006 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 Kakoulli v. Turkey, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrG. Bonello,MrR. Türmen,MrM. Pellonpää,MrK. Traja,MrL. Garlicki,MsL. Mijović, judges,and Mr M. O’Boyle, Section Registrar, Having deliberated in private on 3 November 2005, Delivers the following judgment, which was adopted on this date: PROCEDURE 1. The case originated in an application (no. 38595/97) against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Cypriot nationals, Ms Chriso Kakoulli, Mr Andreas Kakoulli, Ms Martha Kakoulli and Ms Kyriaki Kakoulli (“the applicants”), on 19 March 1997. 2. The applicants, who had been granted legal aid, were represented by Mr Constantis A. Candounas, Mr Pavlos Angelides and Mr Andreas Papacharalambous, lawyers practising in Nicosia (Cyprus). The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court. 3. The applicants complained that their husband and father Petros Kakoulli had been intentionally shot and killed by Turkish soldiers in Cyprus whilst collecting snails. They alleged a violation of Articles 2, 8 and 14 of the Convention. 4. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). 5. The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 6. By a decision of 4 September 2001 the Court declared the application admissible. 7. The applicants and the Government each filed observations on the merits (Rule 59 § 1). In addition, third-party comments were received from the Cypriot Government, who had exercised their right to intervene (Article 36 § 1 of the Convention and Rule 44 § 1 (b)). The respondent Government replied to those comments (Rule 44 § 5). 8. On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Fourth Section (Rule 52 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 9. The applicants, Chriso Kakoulli, Andreas Kakoulli, Martha Kakoulli and Kyriaki Kakoulli, were born in 1944, 1969, 1972 and 1970 respectively. The first, third and fourth applicants live in Avgorou and the second applicant lives in Paralini. The first applicant is the widow and the other applicants are the children of Petros Kyriakou Kakoulli, a Greek Cypriot who died on 13 October 1996. A. The applicants’ version of the facts 10. In the early hours of 13 October 1996 Petros Kyriakou Kakoulli and his daughter’s fiancé, Panikos Hadjiathanasiou, drove to an area called Syrindjieris, situated near the Achna roundabout in the British Sovereign Base Area (SBA) of Dhekelia, to collect snails. After a time, they separated and agreed to meet up at about 7.30 a.m. to return to their village. 11. A villager from Avgorou, Georgios Mishis, who was also collecting snails on the north side of the main road, saw the victim standing in a field approximately 70 metres away from him. He also saw a Turkish soldier approximately 10 metres from Mr Kakoulli pointing his rifle at him and a second Turkish soldier approaching him. Georgios Mishis heard Mr Kakoulli ask the first soldier, in Greek, whether he spoke Greek, to which there was no response. At that moment, the two soldiers caught sight of Mr Mishis and one of them pointed a weapon at him. Mr Mishis then backed away. 12. At this moment Mr Mishis saw an SBA police patrol vehicle on the road and told the driver, Constable Pyrgou, what he had seen. Constable Pyrgou immediately reported the incident to Sergeant Serghiou of the SBA police at Ayios Nikolaos. 13. Shortly after Mr Mishis had seen Mr Kakoulli surrounded by Turkish soldiers, Panikos Hadjiathanasiou, who was searching for Mr Kakoulli, saw him at a distance of approximately 400 metres inside the territory of northern Cyprus. Panikos Hadjiathanasiou then heard the soldiers issue a command in Turkish to stop. Upon hearing these words, Mr Kakoulli remained still and raised his hands above his head. Panikos Hadjiathanasiou saw two Turkish soldiers in combat uniform drop to battle positions on the ground approximately 40 metres from the victim and aim their rifles at him. Immediately afterwards, Panikos Hadjiathanasiou heard a shot and saw Mr Kakoulli fall down. Mr Hadjiathanasiou heard a second shot immediately after the first. 14. A few minutes later, while Mr Kakoulli was still lying on the ground, Mr Hadjiathanasiou saw one of the Turkish soldiers move and fire a third shot at him from a distance of about 7 to 8 metres from where he was lying. 15. Following orders from Sergeant Serghiou of the SBA police, Constable Duru Chorekdjioglou (a Turkish-Cypriot member of the SBA police) and Constable Petros Kamaris (a Greek-Cypriot member of the SBA police) arrived at the Achna roundabout, where they met Panikos Hadjiathanasiou, who explained what had just happened. 16. Constable Duru Chorekdjioglou spoke to a Turkish lieutenant who told him that a Greek Cypriot had entered the territory of northern Cyprus and had been shot by Turkish soldiers. The officer said that the Greek Cypriot was dead. 17. The officer allowed Constable Duru Chorekdjioglou to see the body of the deceased though not to touch or examine it. Constable Duru Chorekdjioglou reported that Mr Kakoulli appeared to be dead. 18. Sergeant Engin Mustafa of the SBA police (a Turkish Cypriot), together with two Turkish soldiers, also visited the scene of the killing and saw the body. The Turkish soldiers told Sergeant Engin Mustafa that Mr Kakoulli had been shot because he had entered “their area” and had refused to obey warnings to stop. 19. Divisional Commander R.H. Weeks of the SBA police, together with Sergeant Engin Mustafa, entered northern Cyprus and spoke with a Turkish officer who told him that Turkish soldiers had shot and killed Petros Kyriakou Kakoulli because he had entered the territory of northern Cyprus and had refused to stop. 20. The same day, Superintendent Mathias Cosgrave and Inspector Richard Duggan of the Irish Civilian Police (IRCIVPOL), part of the United Nations Forces in Cyprus (UNFICYP), visited the scene, accompanied by Sergeant Engin Mustafa. They found an investigating team from the Turkish forces already present. 21. Superintendent Anastasiou, Inspector Christou, Sergeant Zonias and Constable Hadjiyasemis of the Republic of Cyprus police visited the area, although not the exact spot where the killing had occurred. 22. Sergeant Xenofontos and Constables Kapnoullas and Aristidou of the Republic of Cyprus police visited the area and prepared a draft location plan. 23. Georgios Mishis was escorted back to the scene of the incident, where he pointed out the various locations, which were then photographed by Constable Aristidou. 24. A Turkish pathologist, Dr İsmail Bundak, carried out an autopsy on the body of the deceased, Mr Kakoulli, at Famagusta General Hospital. According to the Turkish pathologist, the deceased had a wound 5 cm in diameter in his chest, 21.5 cm below his left nipple and 17 cm from the collar bone, two wounds in his back and a wound on his side in line with his right elbow. 25. Dr Bundak concluded that the death had occurred as a result of internal bleeding caused by a shot to the heart. 26. According to the report by Superintendent Cosgrave, during the removal of Mr Kakoulli’s clothes, an object fell from his left boot which was described as a type of garrotte, consisting of two black metal handles attached to a length of wire. In addition, an object described as a bayonet in a scabbard was removed from the body’s right boot. Following the autopsy, the body of Mr Kakoulli was taken to Larnaca Hospital under UN escort. 27. According to the first applicant’s statement to the Republic of Cyprus police, her husband had only a red plastic bucket with him and had no object such as a bayonet or a garrotte, or any other kind of weapon. 28. On 14 October a second autopsy was conducted in Larnaca Hospital by Dr Peter Vanezis. In his preliminary report Dr Vanezis stated that there were three sets of gunshot wounds to the body. The report stated the following: “An entry wound on the right side of the neck, just below the right ear, with an exit wound at the back of the neck. This bullet had left the body without causing any damage to vital organs. A second entry wound on the right side of the trunk and an exit wound on the right side halfway down the back. This bullet appeared to have caused soft tissue damage with minor injury to the lungs but was not fatal. A third entry wound on the left side of the trunk towards the back with a steep upward direction into the body. This bullet had exited from the left side of the front of the chest, causing a large exit wound. This wound was fatal, as it had caused severe damage to the left lung and the heart, resulting in severe internal haemorrhage.” 29. Until the second autopsy was concluded in Larnaca Hospital, IRCIVPOL had sole responsibility for the body. Before that, the body was in the sole custody of the Turkish forces. 30. On 15 January 1997 Dr Vanezis prepared a final report in Glasgow. He concluded that the second set of wounds had been inflicted by a shot fired while Mr Kakoulli had his hand raised and that the third set of wounds were consistent with a shot fired into the body while Mr Kakoulli was lying on the ground or crouching down. B. The Government’s version of the facts 31. The Government maintained that Petros Kyriakou Kakoulli had violated the ceasefire line and had entered the territory of the “Turkish Republic of Northern Cyprus” (“TRNC”). He was warned verbally and by hand gestures. However, he did not stop and continued to run towards the boundary. One of the soldiers approached him and fired warning shots in the air. Petros Kyriakou Kakoulli took no notice of this shot and consequently a second shot was fired at the ground in order to stop him. As he continued to run away, a third round was fired at him below his waist, which apparently caused the fatal wound. The Government referred to the United Nations Secretary-General’s report, which stated: “in a serious incident that occurred on 13 October 1996, a Greek Cypriot was shot three times and killed by a Turkish-Cypriot soldier after crossing the Turkish force’s ceasefire line”. 32. Neither the UN nor the British Sovereign Base authorities carried out an investigation of their own as the scene of the incident was within the territory of the “TRNC”. 33. The Government further referred to various violent incidents which had taken place in the border area and between the ceasefire lines of the two sides between August and October 1996. The United Nations Secretary‑General’s report, submitted to the Security Council on 10 December 1996, stated that the period under review had seen an increase in the level of violence and tension along the ceasefire lines. The tension rose in early August 1996 owing to the Greek-Cypriot demonstrations at the border area and the ceasefire lines. Violent disturbances and riots took place on 11 and 14 August 1996 in the Dherinia area and in the vicinity of Ayios Nikolaos (Güvercinlik), alongside the British SBA. During these events, two Greek Cypriots were killed. On 8 September 1996 two Turkish soldiers on sentry duty were shot with automatic weapons fired from the SBA into the territory of the “TRNC”. One of the soldiers died as a result and the other was seriously wounded. 34. The Government emphasised the fact that Petros Kyriakou Kakoulli had crossed the Turkish-Cypriot ceasefire line into the territory of the “TRNC”, in the same area where the two Turkish soldiers had been shot. There were strong reasons to believe that Mr Kakoulli, who was a retired fireman, would not have crossed into the “TRNC” territory by mistake, particularly at a location where there were signs in Turkish and Greek indicating the border. Mr Kakoulli had been in possession of a garrotte and a bayonet at the material time, which constituted a strong presumption that he had a sinister motive. His act of carrying a bucket apparently to collect snails was a cover for his real motive. 35. The death of Mr Kakoulli had not been a deliberate act, the Government asserted, but an attempt to maintain security in a highly tense environment. The incident had occurred during a period when tension at the border between the north and south of Cyprus was extremely high. Given the circumstances of the dangerous situation created by the Greek-Cypriot authorities, the Turkish soldiers had been fully justified in taking all necessary precautions and using the necessary force in order to remove the danger and threats of the ceasefire being broken and to protect the lives of others. C. Documents submitted by the parties 36. The parties submitted various documents concerning the investigation into the killing of Petros Kakoulli. These documents, in so far as they are relevant, are summarised below. 1.Documents submitted by the applicants (a) Statements taken by the Sovereign Base Areas Police (i) Statement by Panikos Hadjiathanasiou 37. Mr Panikos Hadjiathanasiou is the fiancé of Mr Petros Kyriakou Kakoulli’s daughter. He accompanied Mr Kakoulli to collect snails on the day of the impugned incident. In his statements he claimed, inter alia, the following: “...After the rainfall at my village, I agreed with my father-in-law to go together this morning (13 October) to collect snails. So, today in the morning I set off with my father-in-law in my car, which I was driving. We took a bucket each in which to put snails... At approximately 6.30 a.m. we went to a point on the main Vrysoulles-Dhekelia road near a bridge. I stopped my car under some eucalyptus trees, on the left side of the main Vrysoulles-Dhekelia road, by the former Achna police station. We alighted from the vehicle, we each took our buckets and we proceeded south, towards the Avgorou side to collect snails. Because there were no snails to find, my father-in-law said that we should separate. He proceeded towards the lower side of the hill from the right, while I proceeded towards the left, intending to cover the whole lower side of the hill, and then to meet at the opposite side. The area in question is situated south of the main Vrysoulles‑Dhekelia road. We started walking and I saw my father-in-law following a route in parallel to the main road and passing the bridge that is at the bottom of the hill by the Achna roundabout. As soon he had proceeded about 20-25 metres after the bridge, I lost sight of him as I had proceeded further and the hill was in between us... Before separating, my father-in-law told me that he was intending to go by the UN observation post, which is opposite the former Achna police station. The main Vrysoulles-Dhekelia road is controlled by the British Bases. Approximately between 7.05 and 7.10 a.m., as we had agreed to return to the village, I started calling him, “Father! Father!”, but did not receive any reply. Whilst doing so I was walking towards the hill so I could have a better view and be able to see him. Whilst walking, I heard shouting in the Turkish language coming from the direction of the former Achna police station, which is in the Turkish-occupied area. On hearing the shouting, I ran towards the hill, I climbed it and I could see the surrounding area and the former Achna police station. I saw my father-in-law standing by an acacia tree at the rear of the Achna police station, facing towards the Turkish-occupied area... The distance between myself and my father-in-law was approximately 400-450 metres... He was holding his bucket with his left hand, but nothing in his right... I heard someone shouting at him something like a military command, which consisted of three words that were short and sharp in tone, and I understood the first word to be ‘DUR’. The other two words which I heard had a short interval between them but I did not understand them. On hearing those words, my father-in-law remained still; he left the bucket on the ground, and raised his hands up to the level of his head. Simultaneously, I saw in front of my father-in-law, at a distance of approximately 30‑40 metres, two men dressed in camouflage combat uniform. They were wearing helmets and were carrying ‘G3’-type rifles. They fell to the ground in front of him and, taking up battle position, aimed their rifles towards his chest and abdominal area. As soon as they fell to the ground, I heard a shot and saw my father-in-law kneeling on the ground and then falling down... Once he fell to the ground, I lost sight of him because of the presence of the acacia tree. Immediately afterwards I heard a second shot. Three or four minutes later, while my father-in-law was still on the ground, I saw one of the two Turkish soldiers standing up and, pointing his rifle forwards, proceeding towards the point where my father-in-law was, with his back arched. He approached within a distance of 7-8 metres of him, straightened up, aimed his rifle towards the point where my father-in-law was and fired another shot... At the time of the shootings, I saw that on the road between myself and the place where my father-in-law was shot, there were three Greek Cypriots. One of them was Georghios Mishis from Avgorou... The Turkish soldier, having fired the third shot, retreated to the point where the other soldier was lying on the ground and afterwards, both of them started walking backwards aiming their rifles towards the main road, and disappeared behind the slope at the rear of the Achna police station... I am sure that my father-in-law was shot and murdered at 7.25 a.m., because I saw my watch...” (ii) Statement by Georgios D. Mishis 38. The witness is a fellow villager of Petros Kyriakou Kakoulli. He stated, inter alia: “...Today at about half past five in the morning, and because of the rain during the previous night, I woke up to go and collect snails... I was alone and drove to the Syrindjieris territory situated near the Achna roundabout on the main Vrysoulles-Dhekelia road ... About six o’clock when there was daylight I was walking on the right side of the main road in the direction of the former Achna police station and started collecting snails... Whilst collecting snails I heard a noise to my rear. I turned back and saw my co-villager Petris the fireman, who is the brother in-law of Kykkos Papettas. He was collecting snails as well, holding a bucket... I continued walking up and down up to the fence of the police station and Petris must have been collecting snails in the same area. After three-quarters of an hour from the time we met with Petris, I walked back down the hill for about 2 or 3 acres from the fence of the police station. To my left in the Turkish-occupied area I then saw Petris and, further back down, about 20-30 feet away from where Petris was, a Turkish soldier with his weapon aimed at him. Petris was at that time approximately 300 metres from where I was standing. At the same time another soldier approached from the direction of the Turkish observation post and Petris asked him if he could speak Greek. I heard Petris clearly asking the latter soldier: ‘Do you know Greek?’. The soldier did not say ‘yes’ or ‘no’ to him. I then went on to the main road and stopped a car which was approaching from the direction of Vrysoulles and requested the driver to call the police... I told him to call the police because the Turks had captured one of us further down, and pointed out to him the direction where I had seen Petris and the Turkish soldiers... After that I started walking to the right down the road where the eucalyptus trees are, towards Avgorou... After about a quarter of an hour from the time I last saw Petris with the Turks I heard two shots and soon, after a few minutes, maybe five minutes, a third shot. On hearing the two shots I saw in front of me the son-in-law of Petris, namely Panikos, approaching from the direction where the water engine is or just beyond the eucalyptus trees. He said to me that the Turks had shot his father-in-law. The time I heard the third shot, I was together with Panikos and we were just getting ready, before hearing the third shot, to stand up and see if we could see Petris, but because of the third shot we sat down. The first two shots I heard were one after the other whilst the third shot was heard about two to three minutes later...” (iii) Statement by Constandinos Ioannou Ioannou 39. The witness, who lives on the Vrysoulles refugee housing estate, was collecting snails in the same area where Petros Kyriakou Kakoulli met his death. He stated, inter alia: “...At about 7.25 a.m. I heard a shot and within a short period of time another one, coming from the east of the police station in the occupied area. Because at that time I was in a dried-out river, I could not identify what was happening at the police station... When I returned to my car I saw one young person who looked panic-stricken and told me that the Turkish troops had shot his father-in-law on the eastern side of the police station... I forgot to tell you that as I was heading towards my car I heard a third shot coming from the same direction. While I was with this person he told me he was called Panikos and that he lived in Avgorou, also that his father-in-law who was shot by the Turks was called Petros Kakoulli. While talking with Panikos I noticed that at the point where he showed me the Turks had shot his father-in-law there were two Turkish soldiers with camouflage clothing armed with rifles...” (iv) Statement by Police Sergeant Engin Mustafa 40. The witness is a police sergeant at the SBA. On the day of the impugned incident he was on duty at the base. He stated: “...On the same day about at 8 a.m. I was on mobile patrol, dressed in uniform, in a marked police vehicle, in the Ormidia Xylophagou area when I received a message to the effect that there was a border incident around the village of Achna, where a Greek Cypriot had been shot by the Turkish army. I proceeded to the scene, along the Larnaca Famagusta main road by the Achna roundabout. My arrival time was 8.20 a.m... I proceeded about 175 metres north-west, escorted by two Turkish soldiers, where I saw the body of one male person lying face down on the ground, who seemed to be showing no signs of life. He looked to be in his fifties. He was wearing a grey shirt, jeans and wellington boots. There was a red plastic bucket with some snails inside it on the ground to the left of the lifeless person. I now know the name of the deceased to be Petros Kakoulli. I was informed by the Turkish army officer at the scene that the Turkish soldiers had shot the man in question at 7.30 a.m. the same day because he had entered their area and failed to obey when challenged...” (v) Statement by Divisional Commander (East) R.H. Weeks 41. The witness is the Commander of the Dhekelia Division of the SBA Police. He stated, in so far as relevant: “...At 8.50 [on 13 October 1996], I went to the area of the alleged shooting and met with PS Engin Mustafa of the SBA Police. PS Mustafa reported to me that a man, identified as one Petros Petrou Kakoulli, had been shot dead by Turkish soldiers inside the TCA about 175 metres north of Boundary Stone 155... Together with PS Mustafa I entered the TCA and walked to a point about 175 metres to the north of Boundary Stone 155 and some 40 metres to the east of it where I saw the body of a male person laying face down on the ground with his head turned to the right. From the appearance of the body I believed him to be dead, although I was not permitted to touch the body to ascertain if there was any possibility of life. I noted that the body was of a middle-aged male, wearing a white-coloured summer shirt with light-coloured markings around the upper back area, blue denim jeans with a black leather belt and black wellington boots. Lying near the left shoulder of the body was a red-coloured plastic 2 gallon bucket that contained some snails. I could see blood stains on the edges of the shirt emerging from the front of the body as it lay on the ground. There was no sign of blood or wounds on the back of the body. I asked the Turkish NCO if he could tell me what had happened. He told me that at about 7.30 a.m. one of the sentries had seen the deceased moving on foot within the Turkish-controlled area. The sentry challenged the man but he did not stop. The sentry challenged the man a second time but he still did not stop so the sentry shot him twice. The man still managed to move a further 15 to 20 metres to the south and the sentry shot him a third time...” (vi) Statement by Chryso Kakoulli 42. The witness is the wife of the deceased, Mr Petros Kakoulli. She claimed that her husband had left the family house with a bucket to collect snails. She disputed the allegation that her late husband was in possession of a knife and a wire rope and stated that such an allegation must have been advanced to cover up his murder. (vii) Statement by Police Constable M. Pyrgou 43. The witness, a police constable stationed at the SBA Police Station in Ayios Nikolaos, saw a middle-aged person holding a basket, collecting snails on the main road in the direction of Larnaca. This person told the witness that somebody had been arrested by the Turkish forces and asked him to take action. The witness called Sergeant Serghiou at the Ayios Nikolaos Police Station and requested him to dispatch a patrol and also to inform the relevant agencies. (viii) Statement by Police Sergeant Antonios Serghiou 44. The witness is a police sergeant stationed at the SBA Police in Ayios Nikolaos. He was on duty at the time of the killing of Petros Kakoulli. After having been informed, by Police Constable M. Pyrgou, about the arrest of a male Greek Cypriot by the Turkish soldiers, the witness instructed Police Constables P. Kamaris and D. Chorekdjioglou to proceed to the scene and to carry out inquiries and to report back. At 8.15 a.m. Mr Chorekdjioglou informed the witness that the person in question was Petros Kakoulli of Avgorou and that he had been shot dead by Turkish soldiers near Achna within the Turkish-controlled area. (ix) Statement by Police Constable Duru Chorekdjioglou 45. The witness is a police constable stationed at the SBA Police in Ayios Nikolaos. He was on duty at the time of the killing of Petros Kakoulli. On the instructions of Police Sergeant Serghiou the witness went to the Achna roundabout, along with Police Constable Kamaris, to inquire into the arrest of Petros Kakoulli. He stated, in so far as relevant, the following: “...When I walked close to [Border Stone] 155 some [Turkish] soldiers shouted at me to stay away. I replied to them that I was a Turkish SBA police officer. Still they shouted at me to stay away and I then walked back to the edge of the main road and shouted at them again to ask whether the commander was present. They replied that he was not there. They promised to call me back when he arrived at the scene. At 7.55 a.m. they called me and signalled to me to cross the boundary. I walked into the Turkish-controlled area and met with the Turkish lieutenant, who refused to give me his name. I then asked him if he had seen any Greek Cypriot collecting snails in the area. He said that a Greek Cypriot had crossed the boundary into the Turkish-controlled area and had been shot dead by his soldiers. I then asked him again whether he was dead or wounded, to which he replied that he was definitely dead. Then at 8.05 a.m. the army officer showed me the deceased, who was about 150 metres within the Turkish-controlled area. I saw the body from a distance of ten metres lying on the ground in a prostrate position with the head facing west. I saw blood on the left-hand side of the body; it was pale and looked dead...” (x) Statement by Police Constable Petros Kamaris 46. The witness is a police constable stationed at the SBA Police in Ayios Nikolaos. He was on duty at the time of the killing of Petros Kakoulli. On the instructions of Police Sergeant Serghiou the witness went to the Achna roundabout, along with Police Constable Duru Chorekdjioglou, to inquire into the arrest of Petros Kakoulli. On the way to the Achna roundabout the witness met Panikos Hadjiathanasiou, who told him that his father-in-law had been shot dead by Turkish soldiers. He informed his colleagues at the Ayios Nikolaos Police Station and Dhekelia about the impugned incident. (xi) Statement by Superintendent Theofanis Anastasiou 47. The witness is a police superintendent in Nicosia. He was the head of the police squad which visited the scene of the killing of Petros Kakoulli. Following his visit the witness concluded that Mr Kakoulli had been kidnapped by armed Turkish soldiers, transferred into the Turkish-occupied areas and shot dead. He was involved in the preparation of topographical sketches and plans of the scene of the killing and attended the post-mortem examination of the deceased. (xii) Statement by Chief Superintendent Nathanael Papageorgiou 48. The witness was involved in the investigation into the killing of Petros Kakoulli. He stated that Mr Kakoulli had been shot dead by Turkish soldiers while collecting snails 40 metres inside the Turkish-occupied areas. He attended the post-mortem examination of the corpse of Mr Kakoulli at Larnaca Hospital. (xiii) Statement by Police Inspector Marcos Christou 49. The witness is a police inspector in the Famagusta Police Division in the village of Paralimni. He was appointed as the investigator in the case of the killing of Petros Kakoulli. He visited the scene of the killing and supervised the taking of statements in connection with the incident. With reference to the statements of Panikos Hadjiathanasiou and Georgios Mishis, the witness found that Petros Kakoulli had been shot dead by Turkish soldiers while collecting snails in the Turkish-occupied area. He noted that on 14 October 1996, approximately 27 hours after the killing, an autopsy had been carried out on the body of the victim in the presence of Turkish and United Nations officials and that a garrotte, consisting of two metal handles attached to a string of wire, and a 33-centimetre bayonet had fallen down when the boots of the deceased had been removed. (xiv) Statements by Police Constables S. Aristidou and H. Hadjiyasemi 50. The witnesses are specialist photographers attached to the Criminal Investigation Division at the Famagusta Police Division. They took various photographs of the scene of the impugned incident on 14 October 1996. (b) Press releases issued by the United Nations Peacekeeping Force in Cyprus (UNFICYP) 51. The UNFICYP issued two press releases on 14 and 16 October 1996 concerning, respectively, the killing of Petros Kakoulli and the deaths occurring in the United Nations Buffer Zone. 52. In the press release of 14 October 1996 it expressed concern that an innocent life, namely that of Petros Kakoulli, had been lost as a result of deplorable and unnecessary force. The UNFICYP qualified the incident as a disproportionate response and stressed that lethal force should not be used by either side against persons who crossed the respective ceasefire lines or entered the United Nations Buffer Zone. It was further noted that the commander of the UNFICYP had requested the commander of the Turkish forces in Cyprus to instruct soldiers under his command not to shoot unless their own lives were threatened. 53. In the press release dated 16 October 1996 the UNFICYP noted that five deaths in as many months in the United Nations Buffer Zone or adjacent to the ceasefire lines underscored the urgent need for arrangements to avoid the recurrence of similar tragic incidents. It further pointed out that these incidents had highlighted the need to ensure that the rules of engagement applied along the ceasefire lines prevented the use of lethal force except in clear situations of self-defence. (c) Post-mortem examination report 54. Dr Peter Vanezis, from the Department of Forensic Medicine and Science at the University of Glasgow, carried out a post-mortem examination at Larnaca General Hospital on 14 October 1996 on the body of Petros Kakoulli. In his report dated 16 October 1996, in which he summarised his findings, Dr Vanezis stated: “The deceased suffered three gunshot wounds to the body as follows: One to the right side of the neck, which entered at a position just below the ear, exited at the back of the neck and did not cause any damage to any vital organs. The second entered through the right side of the trunk and exited at the back at approximately the same level and appeared to have caused soft tissue damage with some minor associated internal injury to the lung, but was not in my view fatal. The third wound was on the left side of the trunk towards the back. It entered the body and its trajectory was steeply upwards into the body at an angle of 45 degrees. It then exited from the left side of the front of the chest, causing a large exit wound. This wound was the fatal wound, causing severe damage to the left lung and the heart with consequent extensive internal bleeding. The first two wounds mentioned were from approximately the same direction and both had approximately horizontal trajectories on entering the body. The third wound was on the other side of the body and had a steep upward trajectory. The position of this wound indicates that the deceased, at the time of receiving this wound, was in a horizontal position either on the ground or crouching. The first two wounds appeared to have been fired at approximately the same time, bearing in mind that their direction and their position on the body are from the same side...” (d) Sketch maps and photos 55. The applicants provided the Court with sketch maps and photographs of the scene of the killing of Petros Kakoulli and with the photographs taken during the post-mortem examination carried out by Dr Peter Vanezis. 56. It is to be noted that Dr Vanezis’s observations concerning the deceased’s body correspond to the photos taken during the post-mortem examination. (e) Newspaper reports 57. Between 14 and 17 October 1996 the daily newspapers Fileleftheros, Agon, Cyprus Mail, Alithia and Simerini reported the killing of Petros Kakoulli. The aforementioned newspapers extensively covered the impugned incident and reported the details of the killing of Petros Kakoulli and the investigation conducted into the impugned incident. 2.Documents submitted by the Government 58. The following documents furnished by the Government pertain to the investigation carried out by the “TRNC” authorities into the killing of Petros Kakoulli. (a) Work schedule 59. This document sets out, in chronological order, the course of action taken by the investigating authorities in relation to the killing of Petros Kakoulli. It includes statements by various witnesses, reports, and decisions by the authorities. It appears that the investigation into the death of Petros Kakoulli was mainly carried out by Inspector Ömer Tazeoğlu, who at the relevant time worked at the Legal Branch of the Gazi Magusa Police Directorate. (i) Preliminary investigation 60. Inspector Ömer Tazeoğlu commenced his investigation immediately after he had learned about the death of Mr Kakoulli, namely at 8.45 a.m. He visited the scene of the incident along with five other police constables at 10.45 a.m. on 13 October 1996. He observed that the incident had taken place on a slope about 300 metres to the south of the guard post code-named Haşim 8, which was under the responsibility of the 2nd Infantry Company of the 6th Infantry Battalion. The area was a first-degree military prohibited area where there were warning signs. At the site on the slope a dead person was lying face down. There was a large pool of blood. 61. Having completed his preliminary investigation, Inspector Tazeoğlu established that at 6.45 a.m. on 13 October 1996 Privates Harun Avşar and Rezvan Topaloğluları of the Infantry had begun their guard duties. 10 minutes later, they had seen a person about 300 metres from the guard post inside the military prohibited area. Private Avşar was in possession of a weapon. He had approached the person in question and concluded that he was a Greek Cypriot because he spoke Greek. He had signalled to the person to stop. But the person had attempted to run away towards the border fence. Private Avşar had first fired one shot in the air, one shot at the ground and one shot at his legs. Having seen that the person in question had failed to stop, Private Avşar had aimed at him and fired and killed him. 62. According to the work schedule, Police Constable Osman Pekun took the necessary photographs of the scene of the incident. Police Sergeant Mehmet Deniz drew a plan of the location. Inspector Ömer Tazeoğlu collected five cartridges and took samples from the pool of blood. SBA police officers Engin Çelebi and Bülent Nihat and inspectors and soldiers from the Peace Force visited the location but left without doing anything, given that the incident had taken place within the boundaries of the “TRNC”. At the scene of the incident, the military doctor Ömer Gür examined the body and found two entry holes and two exit holes caused by bullets. The body was then transferred to Gazi Magusa State Hospital for an autopsy. Following the preliminary examination carried out by Dr Sadık Aslansoyu of the State Hospital, the body was put in the morgue and placed under police surveillance. (ii) Post-mortem examination 63. On 14 October 1996 the Gazi Magusa District Court issued an interim order allowing the investigating authorities to carry out a post‑mortem on the body of Petros Kakoulli. The same day at 9.58 a.m. a team comprising Inspector Ömer Tazeoğlu, Assistant Director H. Gurani, Police Sergeants H. Özdoğdu and H. Erkurt, Police Constable O. Pekun and Peace Force officials Major Martin Enk, Sergeant Dalle Robert, Inspector Mathias Cosgrave and Inspector Richard Duggan, as well as Dr İsmail Bundak amd Erdal Özcenk, arrived at the morgue of Gazi Magusa State Hospital. The same day at 10.30 a.m. the body was taken out of the refrigerator by the morgue official Hamza Ulusu and was placed on the post-mortem table in the presence of the aforementioned persons. As the morgue official was removing the boot from the left foot of the body, a garrotte wire (both ends of the laundry wire, which was 68 centimetres long, were attached to a 14.5 cm long iron handle) fell to the ground. The Peace Force officials examined the said object on the spot. Then the Peace Force photographer and Police Constable O. Pekun photographed the object. When the boot was removed from the right foot a bayonet with a brown handle in a scabbard was seen to have been inserted between the right side of the leg and the interior of the boot. In this instance too the Peace Force officials and Police Constable O. Pekun photographed the object. Then the boot was removed and the bayonet and its scabbard measured. The bayonet, together with its scabbard, was 33 cm long. The objects were taken as exhibits. 64. Between 10.30 a.m. and 12.30 p.m. on the same day Dr İsmail Bundak and Dr Erdal Özcenk carried out the post-mortem examination on the body in the presence of the above-mentioned persons. Twelve X-rays of the body were taken. Doctors took two 10 cc blood samples from the chest cavity of the body and placed them in two separate 10 cc containers for examination. They observed a total of four gunshot wounds; two entry wounds and two exit wounds. Police Constable Osman Pekun took fingerprints and palm prints of the deceased for examination. The autopsy examination established that the cause of death was internal bleeding as a result of shots fired by a firearm. The shots had shattered the left ventricle of the heart and the left lower lobe of the lung. Following the autopsy, the body, the photos, X-rays and the belongings of the deceased were handed over to the Peace Force officials. (iii) Statements and reports 65. Between 14 October 1996 and 20 March 1997 statements were taken from SBA officials, Police Constables Temel Aydın, Türkeş Ergüder, Ahmet Bulduklar, Halil Öztugay, Ahmet Ceylani and Osman Pekun, Private Mehmet Deniz and Inspector Ömer Terzioğlu. Furthermore, witness testimonies were obtained from Infantry Private Rezvan Topaloğluları, the non-commissioned officer Sergeant Ali Ogdu, Infantry Lieutenant Necmettin Ateş, Dr Ömer Gür, Dr Sadık Aslansoyu, Dr İsmail Bundak, Dr Erdal Özcenk, the chemist Hatice Kale, Chief Inspector Abdullah Iraz, Inspector Ömer Tazeoğlu and Inspector Ules Gümüsel. 66. In a letter of 3 April 1997 Mehmet Özdamar, who was at the relevant time the Deputy Director and Acting Director of the Legal Branch at the Gazi Magusa Police Directorate, submitted a detailed report about the killing of Petros Kakoulli. Mr Özdamar stated, in so far as relevant, the following: “[Petros Kakoulli], despite the presence of warning signs, secretly crossed into the TRNC territory near border stone no. 155 and advanced 200 metres inside... Infantry Private Harun Avşar first verbally warned Petros Kakoulli and asked him to stop. But the said person attempted to escape by walking away speedily. Following that, Infantry Private Harun Avşar got 10 metres closer to the victim and first fired a single warning shot into the air. When [Petros Kakoulli] continued to run away, Harun Avşar fired another warning shot to the ground. But when he again tried to escape, Harun Avşar fired a single shot in the direction of his legs and then two shots below the waist. Petros Kakoulli was stopped after being shot... During the removal of Petros Kakoulli’s boots, a garrotte wire hidden in the left boot and a 33 cm bayonet hidden inside the right boot were discovered. Both have been seized as exhibits... The ballistic examination revealed that 5 empty cartridges had been fired by a G3 infantry rifle with the serial number 259550. The comparison of the fingerprints of the victim with the fingerprints found on the bayonet which was found in his right boot showed that the fingerprints on the bayonet belonged to the victim... A charge of manslaughter can be brought against someone in the event of a criminal offence or negligence. However, as the testimonies show, Infantry Private Harun Avşar made all the necessary moves to apprehend the person but as a last resort, after giving warnings, opened fire on Petros Kakoulli and shot him. In my opinion, in the light of the existing testimonies, the incident qualifies, under Article 15 (3) (b) and Chapter 154 Article 17 of the Criminal Code, as an act of causing death which does not constitute a criminal offence...” 67. In a letter of 23 May 1997 Osman T. Naim Enginsoy, who was a Deputy Assistant Attorney-General, instructed the Director General of Police to take no further action on the case and to close it. 68. In June 1997 the police authorities decided to classify the case concerning the killing of Petros Kakoulli as “no case” and to discontinue the investigation. (iv) The Coroner’s decision of 25 August 1998 69. Having completed the judicial inquest, the Gazi Magusa district judge concluded that Petros Kakoulli had died of injuries caused by shots fired by Infantry Private Harun Avşar after illegally entering the “TRNC” and failing to obey warnings to stop. (v) Statement by Inspector Ömer Tazeoğlu 70. In his statements concerning the conclusions he had reached at the end of the investigation into the killing of Petros Kakoulli, Inspector Tazeoğlu expressed the view that Private Harun Avşar had acted in accordance with the instructions given to him. Private Avşar had given the necessary warnings and had shot and killed Petros Kakoulli because of the latter’s failure to stop. Inspector Tazeoğlu thus concluded that this was a justified killing since Private Harun Avşar had done what his duty dictated. Inspector Tazeoğlu recommended that the case should be classified as “no case”. (b) Report by Superintendent Mathias Cosgrave of the Irish Civilian Police (IRCIVPOL), UNFICYP, in Pyla, Cyprus 71. This report describes the sequence of events concerning the involvement of IRCIVPOL in the investigation into the killing of Petros Kakoulli. It appears that immediately after the killing of Mr Kakoulli, at 11.15 a.m., IRCIVPOL members including Superintendent Cosgrave and Inspector R. Duggan visited the scene of the incident. The IRCIVPOL members did not investigate the incident but merely observed the conduct of the investigation by the “TRNC” authorities from 13 June to 15 June 1996. (c) Statement by Infantry Private Harun Avşar 72. In his statements to the investigating authorities, Infantry Private Harun Avşar claimed the following, in so far as relevant, in relation to his killing of Petros Kakoulli: “...Today, on 13.10.1996, Rezvan Topaloğluları and I were on guard duty at Haşim 8... After 5-10 minutes from the time we started our shift, we – I and Rezvan Topaloğluları – saw, approximately 300 or 400 metres from our guard post, a person walking inside our territory. This person was walking in a south-north direction, in other words in the direction of a trail we describe as the patrolling trail. We did not know who this person was. As soon as I saw this person I informed Duty Officer Ali Ogdu via the wireless (radio). He told us over the wireless to continue to keep the person under observation. Then I told my companion, Infantry Private Rezvan Topaloğluları: ‘You stay here; I will go and look at this person.’ And, holding my rifle with a loaded magazine attached to it, I came down from Haşim 8 guard post and joined the trail, advancing towards the border fence... After approaching to about 50 metres from the person, I shouted and asked him what he was doing there. Without saying anything the person continued walking on the slope in the direction of the patrolling trail. Until that moment I could not firmly determine whether this person was a Turk or a Greek Cypriot. So I moved closer to him. The distance between us was about 5-6 metres. This person was high on the slope. At that moment, I sensed that the person could well be a Greek Cypriot. The look of the person was one of bad intent and unease. After that, through hand signals I asked him where he was coming from. Initially the person gave no verbal reply, but he signalled with his right hand and indicated the Turkish side and said something in Greek. But I did not understand what he said. When I was sure that the person was a Greek Cypriot, I removed the safety catch of my weapon and aimed at him. At that moment, the person, while speaking in Greek and making hand signals, started coming towards me. Faced with this situation I shouted in Turkish, telling him to stop, and with my left arm I signalled to him to stop. The person did not stop and continued walking towards me. I, for my part, stepped back a few metres and shouted at my colleague Rezvan and told him to inform the exchange about the situation... The guard Rezvan Topaloğluları heard me. Then I again turned my head towards the person. I shouted and warned the person to stop. After that he stopped walking towards me and started walking towards the border fence. I again shouted and warned him to stop. But this person continued walking away in the direction of the fence while moving his arms and hands saying something in Greek. The distance between this person and the border fence was 200 metres. Following that, I went up to the slope to have a better view of him. The person was still walking towards the border fence. I shouted again and asked him to stop. But he went on walking, waving his hands at the same time. After that the distance between the person and me was about 15 metres. At that point I fired a shot into the air. After hearing the firing of the gun the person quickened his steps. After that I turned my weapon in his direction and fired another shot towards the ground. He again failed to stop and further increased his speed. The distance between us at that moment was about 30 metres. When I realised that the person would not heed my warnings and would cross over to the Greek-Cypriot side, that is I would not be able to catch him, I decided to stop the person by shooting and wounding him. Therefore, while he was walking I aimed my gun roughly at his legs and fired. After that the person stopped momentarily. Until that moment I was not sure if my shot had found its target. Following that, and while he was in a walking position, I fired two rounds, aiming at the person. And the person was shot and fell to the ground. Naturally, the person fell on his right side. I realised that the person was shot. But I did not go near him. I thought there could be others hiding in the area. Therefore, I went up to the hilltop and, hiding behind the rock, began observing and monitoring the area. After that I did not hear any sound coming from the said person. The shooting incident took place at around 7.30 a.m. After 10-15 minutes Company Duty Officer Ali Ogdu arrived at the scene of the incident along with a team of soldiers. I told him what had happened. The soldiers took security measures in the area. As I said, I fired five rounds in this incident...” (d) Statement by Infantry Private Rezvan Topaloğluları 73. At the time of the impugned incident Infantry Private Rezvan Topaloğluları was on guard duty along with Private Harun Avşar at Haşim 8 guard post. In his statements to the authorities he mentioned, in so far as relevant, the following: “...Today, on 13.10.1996 at around 6.45 a.m., the duty officer of the company, Non‑commissioned Officer Ali Ogdu, drove Harun Avşar and me to the guard post and we began our guard duties there. Five to ten minutes after the start of our guard duties, we saw a person in civilian dress between our guard post and the border fence and 300 metres away from the post. Immediately after seeing this person my colleague Harun Avşar notified the situation to the exchange via the wireless. However, I am not sure who he talked to. Over the wireless he was told ‘OK, keep an eye on it’. Following that, we continued to keep the person in question under surveillance... This person was approximately 250-300 metres from the border fence inside our territory. After that my colleague told me: ‘I will go and find out who that person is. You stay here and watch...’ The person we saw was to the south of the patrolling trail inside the ‘TRNC’ territory, which was a military prohibited zone. No one is allowed to enter the area where we saw the person without permission... When we first arrived at our post no information was given to us about the presence of a person there. Therefore, we realised that that person could not be someone with permission. As a result, [Harun Avşar] left the post to find out who that person was. Harun left the post holding the G-3 infantry rifle, registered in his name, with one magazine attached to it and another one inside his belt, and directly joined the patrolling trail from the top and crossed the trail in a southerly direction and started walking in the field as if he wanted to get away from the person, but he was going to approach the person from behind. The way he was moving he would prevent the person from escaping or getting closer to the border fence. What I saw from the guard post was this: Harun got closer to the person and the distance between them was about 15 metres. First I saw that person on the slope and Harun was in the field. Then I saw Harun climbing up the slope. I do not know if there was any conversation between the person and Harun; I could not hear them from my post. At that moment, as I was watching them Harun got nearer to the person, about 10-15 metres away. Then I saw Harun Avşar turn towards the guard post and signal by hand and shout, telling me to inform the exchange. Right at that moment I understood that Harun had found out that the person was a Greek Cypriot. At that moment – the time was about 7.35 a.m. – I lifted the telephone receiver in the guard post, while watching them. I saw that the person that Harun was trying to get closer to was starting to walk speedily away and trying to escape. Naturally, that person was walking in the direction of the border fence. Then I saw Harun raise his gun into the air and fire a single shot. But that man was still walking away. This time Harun lowered his gun and aimed at the man, and in a very short period he fired four single shots, and as the man was walking he fell down. Naturally, it was not possible for me to discern how many shots Harun fired at the man and how many shots at the ground. But when the man fell down I realised that he had been shot... Harun Avşar shot that person inside the military prohibited zone...” II.RELEVANT LAW AND PRACTICE A. Military instructions concerning Haşim 8 Guard Post 74. Guards on duty at Haşim 8 guard post are required to follow the instructions mentioned below, among others. Paragraph 8 of the General Instructions reads: “In the event of any danger the guard shall fully load his weapon, shall open the safety catch and if need be shall use the weapon without hesitation but in accordance with the rules of engagement.” 75. Paragraph 10 of the Special Instructions reads: “Guards shall always stop any person approaching them at night. They shall ask for a password and a signal. Unless they are sure, they shall not allow anyone to approach them.” 76. Paragraph 19 of the Special Instructions provides: “When armed or unarmed military persons enter the buffer zone or cross the confrontation line, the guard on duty shall immediately inform the company’s telephone exchange and take up position. If enemy personnel are inside the buffer zone and continue to approach after a warning is given for them to stop, they shall be aimed at and fired at. If the enemy personnel intend, after entering the buffer zone, to cross the confrontation line, the guard on duty shall not allow the removal of wounded or dead personnel from the buffer zone or inside the confrontation line. The guard shall not allow the destruction of evidence. If need be he shall take aim and open fire. No personnel, in such a situation, shall enter the buffer zone.” B. International legal materials 77. The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (“UN Force and Firearms Principles”) were adopted on 7 September 1990 at the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders. Paragraph 9 of the Principles provides: “Law enforcement officials shall not use firearms against persons except in self‑defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.” 78. Paragraph 5 of the Principles provides, inter alia, that law enforcement officials must “exercise restraint in [the] use [of force and firearms] and act in proportion to the seriousness of the offence and the legitimate objective to be achieved”. Paragraph 7 provides: “Governments shall ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law”. Paragraph 11 (b) states that national rules and regulations on the use of firearms should “ensure that firearms are used only in appropriate circumstances and in a manner likely to decrease the risk of unnecessary harm”. 79. Paragraph 10 of the Principles reads as follows: “... law enforcement officials shall identify themselves as such and shall give a clear warning of their intent to use firearms, with sufficient time for the warnings to be observed, unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons, or would be clearly inappropriate or pointless in the circumstances of the incident.” THE LAW I. THE GOVERNMENT’S PRELIMINARY OBJECTION CONCERNING NON-EXHAUSTION OF DOMESTIC REMEDIES The submissions of the parties 1.The respondent Government 80. The Government averred that the applicants had failed to comply with the exhaustion of domestic remedies rule in Article 35 § 1 of the Convention. In this connection they reasoned that the applicants had filed their application without having recourse to the local remedies which were effective, sufficient and accessible to them and capable of providing redress for their complaints within the judicial system of the “TRNC”. 81. The Government submitted that the Constitution of the “TRNC” clearly demonstrated that an effective and independent judicial system existed in the “TRNC” and that the Turkish-Cypriot courts were the guardians of the rights of individuals. The Constitution incorporated provisions for human rights drawn from the 1960 Cypriot Constitution, and also the European Convention on Human Rights, which formed part of the laws of the “TRNC”. Under the Constitution fundamental rights and liberties could only be restricted by law and only for the purposes that were provided for in law. Articles 136 to 155 of the Constitution provided for access to independent courts and for judicial review of administrative action on the grounds of illegality or error of law and excess and/or abuse of power (Article 152), and also for judicial review of legislation by way of reference to the Supreme Constitutional Court (Article 148) and the institution of proceedings for annulment of legislation and subsidiary legislation (Article 147). In particular, Article 152 of the Constitution provided that the High Administrative Court had exclusive jurisdiction to adjudicate in the final instance on a complaint that a decision, act or omission of any body, authority or person exercising any executive or administrative authority was contrary to any of the provisions of the Constitution, or of any law or subsidiary legislation thereunder, or exceeded or abused the powers vested in such body or authority or person. 82. The Government noted that all prosecutions were carried out by the Attorney‑General, who enjoyed all judicial guarantees of independence (Article 158). The criminal justice system in Cyprus was based on the English “accusatorial system”, and the standard of proof was that of “beyond reasonable doubt”. As to civil cases, the “TRNC” courts applied the provisions of the Civil Wrongs Law, which was a codification of the English common law. 2.The applicants 83. The applicants disputed the respondent Government’s submissions and claimed that there had been no failure on their part to comply with the requirements of Article 35 of the Convention. They stressed that the “TRNC” courts were not properly established under the law applicable in northern Cyprus, but by the “TRNC” in the part of Cyprus which was under illegal Turkish occupation. 84. Moreover, the claim of the “TRNC” to statehood had been rejected not only by the United Nations Security Council but by every State in the world with the exception of Turkey. Accordingly, the courts to which the respondent Government referred in their observations had not been properly constituted by the Republic of Cyprus. That being so, institution of proceedings in the “TRNC courts” would inevitably involve a degree of recognition by the applicants of the legitimacy of those courts and thus of the “TRNC” itself, which would amount to a denial of the sovereignty of the Republic of Cyprus over northern Cyprus. Any such action would also be in direct conflict with the applicants’ status and duties as citizens of the Republic of Cyprus. 85. The applicants further asserted that even if there was in principle a duty to make use of any remedies which might exist in the “TRNC”, the courts there did not offer an remedy which was effective and available to them. 3.The Cypriot Government 86. The Cypriot Government endorsed the applicants’ submissions and contended that the respondent Government’s objection on non-exhaustion should be dismissed. They maintained that the applicants could not be required to exhaust the remedies provided by a subordinate local administration whose existence was dependent upon the control of an occupying power. With reference to their earlier observations in the fourth inter-State case of Cyprus v. Turkey ([GC], no. 25781/94, §§ 83-85, ECHR 2001‑IV), they submitted that no valid Convention remedies existed within the “TRNC” and that the illegality of those remedies in international law amounted to a special circumstance absolving the applicants from the requirement of exhaustion. 4.The Court’s assessment 87. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies which are available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain both in theory and in practice, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used. However, there is no obligation to have recourse to remedies which are inadequate or ineffective (see Aksoy v. Turkey, judgment of 18 December 1996, Reports of Judgments and Decisions 1996‑VI, pp. 2275-76, §§ 51-52, and Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996-IV, p. 1210, §§ 65-67). 88. It is incumbent on the respondent Government claiming non‑exhaustion to indicate to the Court with sufficient clarity the remedies to which the applicant has not had recourse and to satisfy the Court that the remedies were effective and available in theory and in practice at the relevant time, that is to say that they were accessible, were capable of providing redress in respect of the applicants’ complaints and offered reasonable prospects of success (see Akdivar and Others, cited above, p. 1211, § 68). 89. Bearing in mind the foregoing principles, the Court observes at the outset that, for the purposes of Article 35 § 1, remedies available in the “TRNC” may be regarded as “domestic remedies” of the respondent State and that the question of their effectiveness is to be considered in the specific circumstances where it arises (see Cyprus v. Turkey, cited above, § 102). However, this conclusion is not to be seen as in any way putting in doubt the view of the international community regarding the establishment of the “TRNC” or the fact that the government of the Republic of Cyprus remains the sole legitimate government of Cyprus (ibid., §§ 14, 16 and 90). 90. That being so, the Court notes that in its admissibility decision of 4 September 2001 it considered that the question whether the criminal investigation at issue could be regarded as effective under the Convention was closely linked to the substance of the applicants’ complaints and that it should be joined to the merits. Noting the arguments submitted by the parties on this question, the Court considers it appropriate to address these questions in its examination of the substance of the applicants’ complaints under Article 2 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 91. The applicants alleged that the killing of Petros Kakoulli by Turkish soldiers in Cyprus constituted a violation of Article 2 of the Convention, which provides: “1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” A. Submissions of the parties 1. The applicants 92. The applicants alleged that the circumstances in which the late Petros Kakoulli had met his death suggested that those who had shot him had intended to kill him. In their opinion, the acts which had caused the death of Petros Kakoulli went far beyond anything which might have been justified under Article 2 § 2 (a), if indeed any use of force at all could have been “absolutely necessary” in those circumstances. 93. The applicants maintained that Petros Kakoulli had been killed while acting in a manner which no reasonable person could have believed posed a threat of violence to anyone. The only object which he had been holding in his hands was a red plastic bucket and he had dropped that before he had been shot. At the time of his death he had not been holding anything which could have been mistaken for a weapon by the soldiers who killed him, who had been close enough to observe his movements, dress and appearance in detail. 94. The applicants also submitted that the garrotte and bayonet which had been found on Mr Kakoulli’s body at the time of the first post-mortem had obviously been planted by members of the Turkish forces in a clumsy attempt to justify their actions. Even if Mr Kakoulli had been in possession of those weapons concealed in his boots at the time of his death, that fact would not have justified the action of the soldiers in killing him. With such weapons he could not even have threatened two soldiers armed with rifles. Furthermore, the eyewitness accounts showed that the deceased had been doing nothing that might reasonably have been interpreted as threatening. On the contrary, he had had his hands raised in a gesture of surrender. The post-mortem examination conducted by Dr Vanezis had confirmed that one of the shots had been fired when Petros Kakoulli had his hands raised and that the fatal shot had been fired while he had been lying on the ground. 95. Referring to the considerations of the Court in the case of McCann and Others v. the United Kingdom (judgment of 27 September 1995, Series A no. 324, p. 59, § 201), the applicants contended that the respondent Government had fallen short of their obligations under Article 2 on account of the use of lethal force by their armed forces against an individual who had been doing no more than collecting snails in a peaceful area at a time when there were no reasonable ground for expecting violence. 2. The respondent Government 96. The Turkish Government submitted that the unfortunate killing of Petros Kakoulli should not be seen as an isolated incident; a number of violent incidents which had taken place in the border area prior to the impugned incident should also be taken into consideration. In this connection, they noted that on 8 September 1996 two Turkish-Cypriot soldiers on sentry duty had been shot by persons who had penetrated the area of Güvercinlik (near Ayios Nikolaos) at night. This had been part of a carefully planned murder operation which had resulted in the death of one of the soldiers and serious wounding of the other. The Greek-Cypriot newspaper Stochos had reported in its edition of 16 September 1996 that the attack on the Turks had been carried out by Greek commandos as reprisals for the deaths of two Greek Cypriots during violent demonstrations which had taken place at the border area and the ceasefire lines on 11 and 14 August 1996. Thus, the period under consideration had seen a level of violence and an increase in tension along the ceasefire lines unparalleled since 1974, as had been observed by the UN Secretary-General in his report of 10 December 1996 (S/1996/1016) submitted to the Security Council. The incident forming the subject matter of the present application had occurred on 13 October 1996, when the situation was already tense. 97. Petros Kakoulli had crossed the Turkish-Cypriot ceasefire line into the territory of the “TRNC” in the same area which the attackers of the two Turkish-Cypriot soldiers had infiltrated to carry out their sinister operation. There were clear notices in Greek, Turkish and English indicating the boundary of the “TRNC” and warning that entry was prohibited. Mr Kakoulli had been warned to stop verbally and by hand gestures. But he had continued to run towards the boundary fence. One of the Turkish-Cypriot soldiers manning the sentry post had approached him and fired warning shots in the air. Petros Kakoulli had taken no notice and a second shot had been fired at the ground in order to stop him. As he continued to run away a third round had been fired towards him below his waist, which had apparently caused the fatal wound. 98. It was highly improbable that Petros Kakoulli, a trained fireman, would have crossed into the “TRNC” territory by mistake, particularly at a location where there were signs in Turkish and Greek indicating the border. He had been in possession of a garrotte and a bayonet at the material time, which constituted a strong presumption of a sinister motive, and the carrying of a bucket to collect snails had served to camouflage his actual motive. Given the tense situation following the killing of the two Turkish-Cypriot soldiers in the area, there had been no reason to take such a reckless action and to collect snails within the territory of the “TRNC”, when he could safely have done so in the open fields around him and away from the ceasefire line. 99. In the context of the dangerous situation created by the Greek-Cypriot authorities, the Turkish soldiers had been fully justified in having recourse to force in order to abate danger and threats of the ceasefire line being crossed and to protect the lives of others. Thus, the death of Petros Kakoulli had not been a deliberate act. It had occurred in an attempt (a) to maintain security in a highly tense environment and to defend people and property in that area against any possible act of aggression by the intruder, and (b) to effect a lawful arrest. Such action was justified under Article 2 § 2 (a) and (b) of the Convention. 100. Furthermore, in the Government’s opinion, the allegation that the “second set of wounds had been inflicted by a shot while the victim had his hand raised and the third set of wounds were consistent with a shot having been fired into the body while the victim was lying on the ground” was highly speculative and wrong. This was not a matter on which a pathologist could state the facts with any degree of certainty. 3.The Cypriot Government 101. The Cypriot Government disputed the respondent Government’s arguments and claimed that the killing of Petros Kakoulli had not been justified on any grounds under Article 2 of the Convention. Even if Mr Kakoulli had been carrying a bayonet and a garrotte and fleeing from a location where he should not have been, this could not justify killing him to effect his arrest. There was no indication that the weapons allegedly found on him had been used by him or that the soldiers had felt threatened by them. In the Cypriot Government’s opinion, the only reason for the killing of Petros Kakoulli had been his Greek-Cypriot origin. B. The Court’s assessment 102. The Court notes that it has been presented with conflicting accounts as to the circumstances of the killing of Petros Kakoulli by Turkish soldiers on guard duty along the ceasefire lines in Cyprus. Accordingly, it must reach its decision on the basis of the available evidence submitted by the parties (see Çaçan v. Turkey, no. 33646/96, § 61, 26 October 2004). 103. In assessing evidence, the Court reiterates that it adopts the standard of proof “beyond reasonable doubt”. Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, § 161; Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001‑VII (extracts); and Ülkü Ekinci v. Turkey, no. 27602/95, §§ 141-42, 16 July 2002). 104. However, the Court is sensitive to the subsidiary nature of its function and must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Where domestic proceedings have taken place, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them (see Klaas v. Germany, judgment of 22 September 1993, Series A no. 269, p. 17, § 29). Though the Court is not bound by the findings of domestic courts, in normal circumstances cogent elements are required for it to depart from the findings of fact reached by those courts (see Klaas, cited above, p. 18, § 30). Nonetheless, where allegations are made under Articles 2 and 3 of the Convention, the Court must apply a particularly thorough scrutiny (see, mutatis mutandis, Ribitsch v. Austria, judgment of 4 December 1995, Series A no. 336, § 32, and Avşar, cited above, § 283), even if certain domestic proceedings and investigations have already taken place. 105. In the light of the foregoing, the Court will determine whether the facts of the instant case disclose a failure by the respondent State to protect the right to life of the applicants’ relative and to comply with the procedural obligation imposed by Article 2 of the Convention to carry out an adequate and effective investigation into the incident. 1. Whether the killing of Petros Kakoulli was justified under Article 2 (a) General principles 106. Article 2, which safeguards the right to life, ranks as one of the most fundamental provisions in the Convention and enshrines one of the basic values of the democratic societies making up the Council of Europe. The Court must subject allegations of breach of this provision to the most careful scrutiny. In cases concerning the use of force by State agents, it must take into consideration not only the actions of the agents of the State who actually administered the force but also all the surrounding circumstances including such matters as the relevant legal or regulatory framework in place and the planning and control of the actions under examination (see McCann and Others, cited above, pp. 45-46, §§ 146-147; Makaratzis v. Greece [GC], no. 50385/99, §§ 57-59, ECHR 2004‑; and Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 93, ECHR 2004‑). 107. As the text of Article 2 § 2 itself shows, the use of lethal force by State security forces may be justified in certain circumstances. However, any use of force must be no more than “absolutely necessary”, that is to say it must be strictly proportionate in the circumstances. In view of the fundamental nature of the right to life, the circumstances in which deprivation of life may be justified must be strictly construed (see Andronicou and Constantinou v. Cyprus, judgment of 9 October 1997, Reports 1997-VI, pp. 2097-98, § 171, p. 2102, § 181, p. 2104, § 186, p. 2107, § 192, and p. 2108, § 193; and McKerr v. the United Kingdom, no. 28883/95, §§ 108 et seq., ECHR 2001‑III). 108. Accordingly, and with reference to Article 2 § 2 (b) of the Convention, the legitimate aim of effecting a lawful arrest can only justify putting human life at risk in circumstances of absolute necessity. The Court considers that in principle there can be no such necessity where it is known that the person to be arrested poses no threat to life or limb and is not suspected of having committed a violent offence, even if a failure to use lethal force may result in the opportunity to arrest the fugitive being lost (see the Court’s approach in McCann and Others, cited above, pp. 45-46, §§ 146-50 and pp. 56-62, §§ 192-214, and, more recently, in Makaratzis, cited above, §§ 64-66; see also the Court’s condemnation of the use of firearms against unarmed and non-violent persons trying to leave the former German Democratic Republic in Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, §§ 87, 96 and 97, ECHR 2001‑II; and finally, as the most recent authority, Nachova and Others, cited above, § 95, where the Court condemned excessive use of force to arrest victims, which resulted in their death). 109. In addition to setting out the circumstances when deprivation of life may be justified, Article 2 implies a primary duty on the State to secure the right to life by putting in place an appropriate legal and administrative framework defining the limited circumstances in which law-enforcement officials may use force and firearms, in the light of the relevant international standards (see Makaratzis, cited above, §§ 57-59, and the relevant provisions of the UN Force and Firearms Principles cited in paragraphs 77‑79 above). 110. Furthermore, law-enforcement agents must be trained to assess whether or not there is an absolute necessity to use firearms not only on the basis of the letter of the relevant regulations but also with due regard to the pre-eminence of respect for human life as a fundamental value (see the Court’s criticism of the “shoot to kill” instructions given to soldiers in McCann and Others, cited above, pp. 61-62, §§ 211-214; and Nachova and Others, cited above, § 97). (b) Application of these principles in the present case 111. It is undisputed that Petros Kakoulli was shot and killed by a Turkish soldier on guard duty in the border area within the territory of the “TRNC”. The Court must therefore consider whether in the instant case the force used against the victim by the Turkish soldier could be said to have been no more than absolutely necessary and therefore strictly proportionate to the achievement of one of the aims set out in paragraph 2 of Article 2, the only relevant ones of which, in the circumstances of the case, are the “defence of any person from unlawful violence” and “to effect a lawful arrest”. 112. In this connection, a number of key factual issues must be ascertained, in particular whether the soldiers were indeed at risk from Petros Kakoulli, whether any warnings were given before the shooting, and whether the deceased was shot when he was already injured and on the ground in circumstances where it would have been possible to carry out an arrest. Determining these issues should involve, among other things, careful scrutiny of the account of the soldier in question as to the circumstances in which he fired his weapon and of the findings of the investigating authorities and pathologists who carried out the post-mortem examination. Assessment of the credibility and reliability of the various witnesses and the documents submitted by the parties, in particular pictures taken during the post-mortem, must also play a crucial role. 113. Before embarking upon the examination of these issues, it is to be noted that the respondent Government have placed great emphasis on the fact that there was a high level of violence and increased tension along the ceasefire lines during the period in question (see paragraphs 96-99 above). They argued that the soldier on guard duty at the time of the incident in the present case had used lethal force against the victim as he had been under stress caused by the dangerous climate. The use of lethal force was also explained by the failure of Petros Kakoulli to obey warnings to stop and the risk he posed to the soldiers on guard duty on account of his possession of a garrotte and a bayonet (see paragraph 96 above). 114. The Court notes that, at the time of the killing of Petros Kakoulli, the buffer zone between the two sides in Cyprus was not very peaceful, as appears from the press releases issued by the United Nations Peacekeeping Force in Cyprus, concerning the death of civilians and soldiers and violent demonstrations taking place along the ceasefire lines (see paragraphs 52 and 53 above). The Court accepts that border policing undoubtedly presents the authorities with special problems, such as unlawful crossings or violent demonstrations along the border lines. However, this does not mean that the law-enforcement officials have carte blanche to use firearms whenever they are confronted with such problems. On the contrary, they are required to have the ability to assess all parameters and to organise their actions carefully with a view to minimising a risk of deprivation of life or bodily harm. In this connection, the Contracting States have a duty to provide effective training to law-enforcement officials operating in border areas and to give them clear and precise instructions as to the manner and circumstances in which they should make use of firearms, with the objective of complying with international standards on human rights and policing (see paragraphs 77-79 above on the UN Force and Firearms Principles). Accordingly, the Court cannot accept the respondent Government’s argument for justifying the use of lethal force against civilians who breach the border lines. The Court will return to this point when examining the proportionality of the use of lethal force in question. 115. The Court notes, further, that the respondent Government pointed to the fact that a garrotte and a bayonet were found on the body of Petros Kakoulli during the post-mortem examination, which in their submission proved that he had a sinister motive and posed a serious threat to the soldiers on guard duty (see paragraphs 63 and 98 above). This allegation was vehemently denied by the applicants (see paragraph 94 above), who, relying on statements by a number of witnesses, claimed that Petros Kakoulli had been only in possession of a plastic bucket to collect snails in the area (see paragraphs 37, 38, 40, 42 and 93 above). The Court does not find it necessary to determine whether Petros Kakoulli was indeed in possession of the objects in question prior to his death or whether they were planted by the Turkish security forces subsequent to his death. In this connection, it suffices to note that its duty in the instant case is not to fulfil the functions of a criminal court as regards the apportionment of the degree of individual fault (see Gül v. Turkey, no. 22676/93, § 80, 14 December 2000). On that account, even assuming that the respondent Government are right in their assertions, this does not relieve their agents of the obligation to avoid using disproportionate force with the intention of killing or with reckless disregard for the life of Petros Kakoulli. 116. Turning to the circumstances of the killing of the victim, the Court notes that the soldier in question, namely Private Harun Avşar, claimed in his statements that, following his verbal warnings to Mr Kakoulli to stop, he had given one warning shot in the air, and then another towards the ground (see paragraph 72 above). Since Mr Kakoulli had failed to heed his warnings and had attempted to escape to the Greek-Cypriot side, Private Avşar aimed at the victim’s legs and thus fired a third shot with a view to apprehending him (ibid.). After a while he aimed and fired twice at the victim, who had already stopped; these shots caused his death (ibid.). In his report, the principal investigator Ömer Tazeoğlu noted that he had found five cartridges at the scene of the incident, which confirms Private Avşar’s version in so far as it concerns the number of shots (see paragraph 62 above). Furthermore, the military doctor who examined the body at the scene of the killing established the presence of two entry bullets and two exit holes caused by the bullets (ibid.). On the other hand, several witnesses claimed that the Turkish soldiers had fired three times at the victim and that the third shot had been fired a few minutes after the first two (see paragraphs 37, 38 and 41 above). 117. According to the post-mortem examination report prepared by Dr Vanezis, and regard being had to the photos of the deceased, it appears that Mr Kakoulli received three bullets: the first one to the neck, the second one to the right side of the trunk and the third one to the left side of the trunk (see paragraphs 54-56 above). In his report, Dr Vanezis also noted that the first two shots appeared to have been fired at the same time and that both had had horizontal trajectories on entering the body and had not been fatal, whereas the third one had entered the body of the victim whilst he was in a horizontal position either on the ground or crouching and had been the fatal one (see paragraph 54 above). The Court therefore concludes that, apart from the first shot, Private Avşar fired two or three shots with his gun, aimed directly at the victim, and that the last shot caused the victim’s death. 118. In this connection the Court reiterates that, by definition, warning shots are fired into the air, with the gun almost vertical, so as to ensure that the suspect is not hit (see Oğur v. Turkey [GC], no. 21594/93, § 83, ECHR 1999-III). That was all the more essential in the instant case as the victim in question was a middle-aged man in civilian clothes and was not carrying any visible arms which could have posed a threat from a distance, such as a rifle or a pistol. Accordingly, even though it was subsequently discovered that there were a garrotte and a bayonet in Mr Kakoulli’s boots, there was no basis for the soldiers on guard duty to reasonably consider that there was any need to resort to the use of their weapons in order to stop and neutralise the suspect. 119. Moreover, even assuming that Mr Kakoulli failed to stop promptly upon the verbal warning from the soldiers as he passed the border line, the Court finds that this does not disclose any basis for the use of force which, whether deliberately or owing to lack of proper aim, was lethal in its effects. As noted earlier, the Court cannot overlook the Government’s argument that the location of the incident was not peaceful at the relevant time. However, the fact that unrest was prevailing in the area in question does not of itself give the soldiers the right to open fire upon people or persons whom they deem suspicious. 120. Nevertheless, the soldier in question had recourse to lethal force while there was no imminent risk of death or serious harm to him or other persons (see paragraphs 77-79 above, concerning the UN Force and Firearms Principles). On the contrary, the Court notes that in his statement to the investigating authorities Private Avşar stated at the time he shot and wounded Petros Kakoulli, the latter was about 30 metres away and was walking towards the border fence and that he (Private Avşar) decided to shoot him because he would otherwise not have been able to catch him. The Court is particularly struck by the fact that the last shot was fired several minutes after the two shots, which had already wounded the victim and neutralised him, at a time when it could have been possible to carry out an arrest (see paragraphs 37, 41, 54, 72 and 73 above). In this latter context, it cannot be said either that the use of fire in the instant case was in compliance with the rules of engagement (see paragraphs 74 and 76 above). 121. In the light of the above, the Court concludes that the use of force against Petros Kakoulli was neither proportionate nor absolutely necessary for the purpose of “defending any person from unlawful violence” or “effecting a lawful arrest”. There has therefore been a violation of Article 2 on that account. 2. Whether the investigation into the killing of Petros Kakoulli was adequate and effective, as required by Article 2 of the Convention 122. The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see Çakıcı v. Turkey [GC], no. 23657/94, § 86, ECHR 1999‑IV). The essential purpose of such an investigation is to secure the effective implementation of the domestic laws safeguarding the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility (see Anguelova v. Bulgaria, no. 38361/97, § 137, ECHR 2002‑IV). Since often, in practice, the true circumstances of the death in such cases are largely confined within the knowledge of State officials or authorities, the bringing of appropriate domestic proceedings, such as a criminal prosecution, disciplinary proceedings and proceedings for the exercise of remedies available to victims and their families, will be conditioned by an adequate official investigation, which must be independent and impartial (see Makaratzis, cited above, § 73). 123. The investigation must be capable, firstly, of ascertaining the circumstances in which the incident took place and, secondly, of leading to the identification and punishment of those responsible. This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence. A requirement of promptness and reasonable expedition is implicit in this context. Any deficiency in the investigation which undermines its capability of establishing the circumstances of the case or the person responsible is liable to fall foul of the required standard of effectiveness (see Kelly and Others v. the United Kingdom, no. 30054/96, §§ 96-97, 4 May 2001, and Anguelova, cited above, § 139). 124. In the present case, immediately after the impugned incident, the domestic authorities commenced a comprehensive investigation. To that end, the investigators visited the scene of the incident along with officers from the IRCIVPOL, a sketch map of the location was drawn up and photographs were taken (see paragraphs 60-62 above). Statements were taken from a number of police officers, SBA officials and the soldiers on guard duty, including the one who shot the victim (see paragraphs 65, 72 and 73). A post-mortem examination and other laboratory tests were also conducted (see paragraphs 63, 64 and 66 above). However, following the investigation no criminal or disciplinary proceedings were brought against the soldier who shot dead Petros Kakoulli because the investigating authorities concluded that he had done what his duties had dictated and that the killing had therefore been justified in the circumstances (see paragraph 70 above). The domestic authorities thus classified the case as “no case”, meaning that there would not be any further investigation or criminal proceedings (see paragraphs 68 and 70 above). 125. The Court observes that notwithstanding the seriousness of the incident, there were a number of significant omissions which raise doubts about the effectiveness and impartiality of the investigation in question. In that connection, the Court points out that the military doctor Ömer Gür, who examined the body at the scene of the incident, and Drs İsmail Bundak and Erdal Özcenk, who carried out the post-mortem examination, concluded that there were a total of two entry and two exit wounds on the body (see paragraphs 62 and 64 above). According to this conclusion, the victim must have received two bullets. On the contrary, from the photos taken during the post-mortem examination and according to the report by Dr Vanezis, there appear to be three entry and three exit wounds, which clearly indicates that the victim received three bullets to his body (see paragraphs 54-56 above). It is also remarkable that the investigating authorities concluded that, following the first shot in the air, Private Avşar fired two shots below the victim’s waist, specifically at the legs; meaning that only two bullets out of five entered the body of the deceased (see paragraphs 61 and 65 above). However, again having regard to the photos of the body, there is no appearance of a bullet wound in the victim’s legs. On the contrary, Dr Vanezis’ report records that one of the three gunshots wounds entered the body just below the ear while the other two were in the trunk of the victim. Further, the third and fatal wound had, according to Dr Vanezis’ report, a steeply upward trajectory at an angle of 45 degrees and its position indicated that the victim was in a horizontal position on the ground or crouching at the time he was hit. 126. Thus, the failure of the autopsy examination to record fully the injuries on Petros Kakoulli’s body hampered an assessment of the extent to which he was caught in the gunfire, and his position in relation to the soldiers on guard duty. In this context, the Court reiterates that the purpose of a post-mortem examination is to elucidate the circumstances surrounding the death, including a complete and accurate record of possible signs of injury and an objective analysis of clinical findings (see in that connection the Model Autopsy Protocol annexed to the Manual on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions adopted by the United Nations in 1991, which emphasises the necessity in potentially controversial cases for a systematic and comprehensive examination and report to prevent the omission or loss of important details, and is referred to in Gül, cited above, § 89). 127. Furthermore, although the actions of the soldier who killed Petros Kakoulli required careful scrutiny of the circumstances with a view to determining the necessity and proportionality of the lethal force, the investigating authorities based their findings solely on the soldiers’ account of the facts, without casting any doubt on it and without seeking any further eyewitnesses. They did not inquire into whether the victim could have posed a serious threat to the soldiers from a long distance with the alleged weapons or whether the soldiers could have avoided using excessive lethal force. Nor did the investigators examine whether Private Avşar had complied with the rules of engagement laid down in the military instructions concerning the Haşim 8 Guard Post (see paragraph 74 above). 128. In the light of the foregoing, the Court considers that the investigation conducted by the “TRNC” authorities into the killing of Petros Kakoulli was neither effective nor impartial. It accordingly dismisses the Government’s objection of non-exhaustion (see paragraph 90 above) and holds that there has been a violation of Article 2 under its procedural limb. III.ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 129. The applicants alleged that the killing of Petros Kakoulli had deprived them of a family member, who was a husband and a father, and had therefore also given rise to a violation of Article 8 of the Convention, the relevant part of which provides: “1. Everyone has the right to respect for his ... family ... life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety ... ” 130. The respondent Government submitted that the applicants’ allegation was devoid of any legal basis. 131. The Cypriot Government agreed with the applicants’ allegation and claimed that there had been a separate violation of Article 8, in addition to Article 2, on account of the killing of Petros Kakoulli. 132. In the circumstances of the present case, notwithstanding the tragic consequences for the family, the Court does not find that any issues arise separate from its above conclusion that there has been a violation of Article 2 of the Convention on account of the killing of Petros Kakoulli (see paragraph 121 above). IV.ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 133. The applicants contended that the killing of Petros Kakoulli had also involved discrimination based upon his Greek-Cypriot origin and Christian religion, in violation of Article 14 of the Convention, which provides: “The enjoyment of the rights and freedoms set forth in this 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.” 134. The respondent Government did not address this allegation beyond denying the factual basis of the substantive complaints. 135. The Cypriot Government also asserted that the killing of Petros Kakoulli had been perpetrated on account of his ethnic origin. 136. The Court has examined the applicants’ allegation in the light of the evidence submitted to it, and considers it unsubstantiated. There has therefore been no violation of Article 14 of the Convention, taken in conjunction with Articles 2 and 8. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 137. 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 138. The applicants sought an award of compensation in respect of non‑pecuniary damage in the amount of 175,000 Cypriot pounds (CYP) (approximately 305,600 euros (EUR), broken down into CYP 100,000 for the first applicant and CYP 25,000 for each of the other three applicants. They reasoned that at the time of his killing Petros Kakoulli had been just over 58 years old, had taken early retirement from the Fire Brigade and had been occupied with collecting mushrooms and snails in his village. His death had deprived the first applicant not only of a husband but also of a life companion for the rest of her days. Given the social conditions prevailing in Cyprus, especially in a village such as the one in which the applicants lived, she had been left at the age of 52 with no prospects of remarrying or starting a new life. The remaining three applicants had been deprived of a loving father and would have to raise their children without a grandfather. 139. The respondent Government did not comment on the applicants’ just satisfaction claims. In their observations, they merely disputed the factual basis of those claims. 140. The Court has found a violation of Article 2 of the Convention on account of the killing of Petros Kakoulli and the failure of the national authorities to carry out an effective and independent investigation (see paragraphs 121 and 128 above). Accordingly, it considers that an award of compensation should be made in favour of the widow and three children of Petros Kakoulli since his death must have caused them considerable anguish and distress. In these circumstances, and having regard to the awards made in comparable cases, the Court, ruling on an equitable basis, awards the first applicant Chriso Kakoulli the sum of EUR 20,000 and each of the remaining three applicants the sum of EUR 3,500 for the non-pecuniary damage sustained by them in their personal capacity. It holds that the above sums are to be converted into Cypriot pounds at the rate applicable at the date of payment. B. Costs and expenses 141. The applicants claimed a total of 8,300 pounds sterling (GBP) (approximately EUR 12,000) in respect of the advisory work carried out by a leading counsel in the United Kingdom and CYP 10,070 (approximately EUR 17,500) in respect of the legal fees and expenses of their Cyprus-based lawyers. 142. The Government did not comment on the applicants’ claims in respect of their costs and expenses either. 143. The Court reiterates that only legal costs and expenses necessarily and actually incurred can be reimbursed under Article 41 of the Convention. Furthermore, the amounts claimed must be reasonable as to quantum. In this connection, the Court notes that the present case involved complex issues of fact and law requiring detailed examination. However, having regard to the details of the schedule of costs and expenses, it is not satisfied that in the instant case all the costs and expenses were necessarily and actually incurred. Furthermore, the Court considers the sum of GBP 8,300 claimed in respect of the work done in the United Kingdom to be excessive. 144. Making its own estimate, based on the information available, the Court awards the applicants EUR 20,000 in respect of costs and expenses exclusive of any value-added tax that may be chargeable, such sum to be converted into Cypriot pounds at the rate applicable at the date of the payment. C. Default interest 145. 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 1. Joins to the merits the Government’s preliminary objection concerning the exhaustion of domestic remedies and dismisses it; 2. Holds that there have been violations of Article 2 of the Convention in both its substantive and procedural aspects; 3. Holds that no separate issue arises under Article 8 of the Convention; 4. Holds that there has been no violation of Article 14, taken in conjunction with Articles 2 and 8 of the Convention; 5. Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following sums, to be converted into Cypriot pounds at the rate applicable at the date of settlement, plus any tax that may be chargeable: (i) to the first applicant Chriso Kakoulli EUR 20,000 (twenty thousand euros) in respect of non-pecuniary damage; (ii) to each of the remaining three applicants EUR 3,500 (three thousand five hundred euros) in respect of non-pecuniary damage; (iii) EUR 20,000 (twenty thousand euros) 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; 6. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 22 November 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Michael O’BoyleNicolas BratzaRegistrarPresident

COURT (PLENARY) CASE OF B. v. FRANCE (Application no. 13343/87) JUDGMENT STRASBOURG 25 March 1992 In the case of B. v. France[*], The European Court of Human Rights, taking its decision in plenary session pursuant to Rule 51 of the Rules of Court and composed of the following judges: Mr J. Cremona, President, Mr Thór Vilhjálmsson, Mrs D. Bindschedler-Robert, Mr F. Gölcüklü, Mr F. Matscher, Mr J. Pinheiro Farinha, Mr L.-E. Pettiti, Mr B. Walsh, Mr R. Macdonald, Mr C. Russo, Mr R. Bernhardt, Mr A. Spielmann, Mr N. Valticos, Mr S.K. Martens, Mrs E. Palm, Mr R. Pekkanen, Mr A.N. Loizou, Mr J.M. Morenilla, Mr F. Bigi, Sir John Freeland, Mr A.B. Baka, and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy Registrar, Having deliberated in private on 27 September 1991 and 23 and 24 January 1992, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case was referred to the Court by the European Commission of Human Rights ("the Commission") on 12 November 1990, within the three-month period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). It originated in an application (no. 13343/87) against the French Republic lodged with the Commission under Article 25 (art. 25) by Miss B., a French national, on 28 September 1987. The applicant (who will be referred to in this judgment in the feminine, in accordance with the sex claimed by her) requested the Court not to disclose her identity. The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby France recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 3 and 8 (art. 3, art. 8) of the Convention. 2. In response to the enquiry made in accordance with Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that she wished to take part in the proceedings and designated the lawyer who would represent her (Rule 30). 3. The Chamber to be constituted included ex officio Mr L.-E. Pettiti, the elected judge of French nationality (Article 43[*] of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)). On 22 November 1990, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr Thór Vilhjálmsson, Sir Vincent Evans, Mr R. Macdonald, Mr C. Russo, Mr A. Spielmann, Mr S.K. Martens and Mrs E. Palm (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43). 4. Mr Ryssdal assumed the office of President of the Chamber (Rule 21 para. 5) and, through the Registrar, consulted the Agent of the French Government ("the Government"), the Delegate of the Commission and the lawyer representing the applicant on the need for a written procedure (Rule 37 para. 1). In accordance with the order made in consequence, the Registrar received Miss B.’s memorial on 19 February 1991, the Government’s memorial on 21 February 1991 and the written observations of the Delegate of the Commission on 22 April 1991. 5. Having consulted, through the Registrar, those who would be appearing before the Court, the President directed on 4 March 1991 that the oral proceedings should open on 25 September 1991 (Rule 38). 6. On 28 June 1991 the Chamber decided to relinquish jurisdiction forthwith in favour of the plenary Court (Rule 51). 7. On 19 July the Government submitted supplementary observations, and the Commission produced the file on the proceedings before it, as requested by the Registrar on the President’s instructions. 8. The hearing took place in public in the Human Rights Building, Strasbourg, on the appointed day. It was presided over by Mr Cremona, the Vice-President of the Court, replacing Mr Ryssdal, who was unable to take part in the further consideration of the case (Rule 21 para. 5, second sub- paragraph). There appeared before the Court: - for the Government Mr J.-P. Puissochet, Director of Legal Affairs, Ministry of Foreign Affairs, Agent, Mr P. Titiun, magistrat, on secondment to the Department of Legal Affairs, Ministry of Foreign Affairs, Mr D. Ponsot, magistrat, on secondment to the Department of Civil Affairs and the Seal, Ministry of Justice, Counsel; - for the Commission Mrs J. Liddy, Delegate; - for the applicant Mr A. Lyon-Caen, Mrs F. Fabiani, Mr F. Thiriez, all avocats at the Conseil d’État and Court of Cassation, Mrs A. Sevaux, avocate, Counsel. The Court heard addresses by Mr Puissochet for the Government, Mrs Liddy for the Commission and Mr Lyon-Caen and Mrs Fabiani for the applicant, as well as their replies to its questions. AS TO THE FACTS I. THE PARTICULAR CIRCUMSTANCES OF THE CASE 9. The applicant, who is a French citizen, was born in 1935 at Sidi Bel Abbès, Algeria, and was registered with the civil status registrar as of male sex, with the forenames Norbert Antoine. A. The background to the case 10. Miss B., the eldest of five children, adopted female behaviour from a very early age. She was considered as a girl by her brothers and sisters and is said to have had difficulty coping with a wholly segregated scholastic environment. She completed her military service in Algeria, as a man, and her behaviour at the time was noticeably homosexual. After spending five years teaching reading and writing to young persons from Kabylia, she left Algeria in 1963 and settled in Paris, working in a cabaret under an assumed name. 11. Distressed by her feminine character, she suffered from attacks of nervous depression until 1967, when she was treated in hospital for a month. The doctor who treated her from 1963 observed a hypotrophy of the male genital organs and prescribed feminising hormone therapy, which rapidly brought about development of the breasts and feminisation of her appearance. The applicant adopted female dress from then on. She underwent a surgical operation in Morocco in 1972, consisting of the removal of the external genital organs and the creation of a vaginal cavity (see paragraph 18 below). 12. Miss B. is now living with a man whom she met shortly before her operation and whom she at once informed of her situation. She is no longer working on the stage, and is said to have been unable to find employment because of the hostile reactions she aroused. B. The proceedings brought by the applicant 1. Before the Libourne tribunal de grande instance 13. Miss B., wishing to marry her friend, brought proceedings against the Libourne public prosecutor (procureur de la République) on 18 April 1978, asking the court "to hold that, registered in the civil status register of [her] place of birth as of male sex, [she was] in reality of feminine constitution; to declare that [she was] of female sex; to order rectification of [her] birth certificate; to declare that [she should] henceforth bear the forenames Lyne Antoinette". 14. On 22 November 1979 the Libourne tribunal de grande instance dismissed her action for the following reasons: "... Whereas it is clear from the experts’ report and is moreover not contested that [B.], correctly registered at birth as of male sex, developed towards female morphology, appearance and behaviour, apparently because of congenital hypogenesis ... and psychological tendencies following hormone treatment and surgical operations; Whereas it is thus apparent that the change of sex was intentionally brought about by artificial processes; Whereas the application of Norbert [B.] cannot be granted without attacking the principle of the inalienability of the status of individuals; ..." 2. Before the Bordeaux Court of Appeal 15. The applicant appealed, but on 30 May 1985 the Bordeaux Court of Appeal upheld the judgment of the lower court. The court said inter alia: "... contrary ... to Mr [B.’s] contention, his present state is not ‘the result of irreversible innate factors existing before the operation and of surgical intervention required by therapeutic necessities’, nor can it be considered that the treatment voluntarily undergone by Mr [B.] led to the disclosure of his hidden true sex, but on the contrary it indicates a deliberate intention on his part without any other treatment having been tried and without the operations having been necessitated by Mr [B.’s] biological development. ..." 3. Before the Court of Cassation 16. Miss B. appealed to the Court of Cassation. Her single ground of appeal was as follows: "This appeal complains that the challenged judgment dismissed the appellant’s application for rectification of civil status, On the grounds that if, notwithstanding the principle of the inalienability of the status of individuals, an amendment can be made where ‘irreversible necessity, independent of the individual, compels this’, which may be the case with real transsexuals, such amendment can be approved only after a long period of observation and reflection prior to the operation stage, during which a qualified medical team can ‘gradually reach the conclusion that the situation is genuine and irreversible’; that in this case ... ‘no form of psychological or psychiatric treatment was tried’; that ‘the first doctor who prescribed hormone treatment did not carry out any protracted observation, no guarantee of such observation was given before the surgical operation carried out abroad’; that ‘the apparent change of sex was brought about solely by Mr [B.’s] intention and it is clear that even after the hormone treatment and surgical operation he still shows the characteristics of a person of male sex whose external appearance has been altered thanks to cosmetic plastic surgery’; that, therefore, far from having led to the ‘disclosure of his hidden true sex’, the treatment undergone by him indicates a ‘deliberate intention on his part without any other treatment having been tried and without the operations having been necessitated by Mr [B.’s] biological development’ ...; Whereas sexual identity, which is a fundamental right of the individual, is constituted not only by biological components but also by psychological ones; that by considering surgery undergone by a transsexual to bring his anatomy into harmony with his being as inoperative merely because he still kept his male genetic and chromosomal characteristics, and by not undertaking any investigation of his contradictory psychological history - investigation which was not prevented by the lack of psychotherapy of the patient before the operation, bearing in mind the expert report produced for the court - the Court of Appeal deprived its decision of any legal foundation with respect to Article 99 of the Civil Code. ..." The applicant’s supplementary pleadings opened with the following "introduction": "The Court of Cassation now has a fresh chance to let transsexuals enter into normality, by allowing them rectification of their civil status. The solution is legally possible since the European Commission of Human Rights has stated sexual identity to be a fundamental right of the individual. It is humanly necessary in order for people who are not medically perverted but are merely victims of aberrations of nature finally to be able to live in harmony with themselves and with the whole of society." It also included an argument relating to the Convention: "VI. In the European legal system this argument [accepting the transsexual’s right to recognition of his true identity] has been entirely accepted, thus making up for the absence of a French statutory provision on the point. The European Commission of Human Rights, when applied to by a transsexual whose request had been dismissed by a final judgment of the Brussels Court of Appeal, considered that by refusing to take account of changes which had occurred lawfully Belgium had failed to observe the respect due to the applicant’s private life within the meaning of Article 8 para. 1 (art. 8-1) of the European Convention on Human Rights; and that by refusing to take into account ‘his sexual identity resulting from his change of physical form, his psychical make-up and his social role ... Belgium had treated the applicant as an ambiguous being, an appearance’ ... This follows from a report dated 1 March 1979, which recognises that sexual identity is a fundamental right of the individual[*]. France has expressly subscribed thereto by issuing a declaration [recognising] the right of individual petition to the European Commission of Human Rights ..." 17. The appeal was dismissed by the First Civil Chamber of the Court of Cassation on 31 March 1987 for the following reasons: "Whereas, according to the findings of the court below, Norbert [B.] submitted an application to the tribunal de grande instance for a declaration that he was of female sex, that his birth certificate should consequently be amended, and for authorisation henceforth to bear the forenames Lyne Antoinette; whereas his application was dismissed by the confirmatory judgment under appeal; Whereas Norbert [B.] complains that the Court of Appeal (Bordeaux, 30 May 1985) so decided despite the fact that sexual identity is constituted not only by biological components but also by psychological ones, so that by taking a decision without carrying out any investigation of his psychological history it deprived its decision of any legal foundation; Whereas, however, the court of second instance found that even after the hormone treatment and surgical operation which he underwent Norbert [B.] continued to show the characteristics of a person of male sex; whereas it considered that, contrary to the contentions of the person in question, his present state is not the result of elements which existed before the operation and of surgical intervention required by therapeutic necessities but indicates a deliberate intention on the part of the person concerned; whereas it thus justified its decision in law; whereas the ground of appeal can therefore not be upheld; ..." (Bulletin des arrêts de la Cour de cassation, chambres civiles (Bull. civ.) I, 1987, no. 116, p. 87) II. RELEVANT DOMESTIC LAW AND PRACTICE A. Medical treatment 18. No legal formality or authorisation is required for hormone treatment or surgery intended to give transsexuals the external features of the sex they wish to have acknowledged. It has been possible for surgical operations to take place in France since 1979 subject to medical control; before then they were carried out abroad. There is no objection by the National Council of the Medical Association, and the costs of some of these operations are borne by the social security service. Persons who commit intentional attacks on the physical integrity of a human being are criminally liable, as are their accomplices, but although prosecutions are possible, they are exceptional in cases of transsexualism. B. Civil status 19. Events which take place during the lives of individuals and affect their status give rise to a marginal note on the birth certificate or are transcribed on to the certificate: acknowledgement of an illegitimate child (Article 62 of the Civil Code), adoption (Article 354), marriage (Article 75), divorce (Article 1082 of the new Code of Civil Procedure), and death (Article 79 of the Civil Code). Civil status registrars are asked to leave sufficient space for these purposes (section 3 of Decree no. 62-921 of 3 August 1962 amending various regulations relating to civil status). 1. Access to civil status documents 20. Under the first paragraph of section 8 of the Decree of 3 August 1962, "Civil status registers dating less than one hundred years back may be consulted directly only by public officials authorised to do so and persons with the written permission of the procureur de la République". 21. However, "the public nature of civil status documents shall be ensured by the issue of full copies or extracts" (same section, second paragraph). Full copies of a birth certificate can be issued only to the person concerned, his ascendants or descendants, his spouse, his legal representative, the procureur de la République or any person authorised by him (section 9, first and third paragraphs). However, any person can obtain an extract of another person’s birth certificate (section 10). The information which appears on an extract of birth certificate is subject to certain restrictions. Thus in the case of legal adoption, such an extract must not include any reference to the adoption order or the family of origin (section 12). In addition, the Decree of 26 September 1953 on the simplification of administrative formalities provides that in the case of procedures and investigations carried out by public bodies, services and offices or by undertakings, organisations and health insurance institutions under State supervision, extracts of civil status documents shall be replaced by production of a civil status certificate. Such a certificate does not indicate sex. 2. Rectification of civil status documents and change of forenames (a) Statutory provisions 22. The following provisions govern the rectification of civil status documents: Article 57 of the Civil Code "The birth certificate shall state the day, time and place of birth, the sex of the child and the forenames given, the forenames, surnames, ages, occupations and addresses of the father and mother and, if appropriate, those of the person reporting the birth. If either or both of the father and mother of an illegitimate child are not named to the civil status registrar, no mention relating thereto shall be made in the registers. If the certificate drawn up relates to an illegitimate child, the registrar shall within one month give notice thereof to the judge of the tribunal d’instance for the district of the birth. The forenames of a child appearing on his birth certificate may in the case of a legitimate interest (intérêt légitime) be amended by an order of the tribunal de grande instance made on application by the child or, during his minority, on application by his legal representative. The order shall be made and published subject to the conditions provided for in Articles 99 and 101 of this Code. The addition of forenames may likewise be ordered." Article 99 of the Civil Code (as amended by Decree no. 81-500 of 12 May 1981) "Rectification of civil status documents shall be ordered by the president of the court. Rectification of declaratory or supplementary judgments relating to civil status documents shall be ordered by the court. An application for rectification may be brought by any person concerned or by the procureur de la République; the latter shall be obliged to act ex officio where the error or omission relates to an essential indication in the document or in the decision taking its place. The procureur de la République having local jurisdiction may carry out administrative rectification of merely material errors and omissions in civil status documents; for this purpose he shall give the relevant instructions directly to those having custody of the registers." Section 1 of the Law of 6 Fructidor Year II "No citizen may bear a surname or forename other than those stated in his birth certificate; those who have abandoned them shall be obliged to resume them." (b) Case-law 23. A large number of French tribunaux de grande instance (T.G.I.) and courts of appeal (C.A.) have granted applications for amendment of entries in civil status registers relating to sex and forenames (see inter alia T.G.I. Amiens, 4.3.1981 ; Angoulême, 18.1.1984; Créteil, 22.10.1981; Lyon, 31.1.1986; Montpellier, 6.5.1985; Nanterre, 16.10.1980 and 21.4.1983; Niort, 5.1.1983; Paris, 24.11.1981, 16.11.1982, 9.7.1985 and 30.11.1988; Périgueux, 10.9.1991; Saint-Etienne, 11.7.1979; Strasbourg, 20.11.1990; Thionville, 28.5.1986; Toulouse, 25.5.1978; C.A. Agen, 2.2.1983; Colmar, 15.5.1991 and 30.10.1991; Nîmes, 2.7.1984; Paris, 22.10.1987; Toulouse, 10.9.1991; Versailles, 21.11.1984) or relating to forenames only (T.G.I. Lyon, 9.11.1990; Metz, 6.6.1991; Paris, 30.5.1990; Saint-Etienne, 26.3.1980; C.A. Bordeaux, 18.3.1991). Some of these decisions specified that the amendment of civil status should not have retroactive effect, in order not to affect earlier legal acts or situations. The great majority of them have become final and binding, the prosecutor’s office not having exercised its right to appeal. Contrary rulings have, however, been given by other courts (see inter alia T.G.I. Bobigny, 18.9.1990; Paris, 7.12.1982; C.A. Bordeaux, 13.6.1972 and 5.3.1987; Lyon, 19.11.1987; Nancy, 5.4.1973, 13.4.1977 and 22.4.1982; Nîmes, 10.3.1986, 7.6.1986, 7.5.1987 and 2.7.1987; Rouen, 8.10.1986 and 26.10.1988). 24. The Court of Cassation has had occasion to give decisions on this point some twelve times from 1975 to 31 May 1990. In two judgments of 16 December 1975 (Bull. civ. I, no. 374, p. 312, and no. 376, p. 313; Recueil Dalloz Sirey (D.S.) 1976, p. 397, note Lindon; Juris-Classeur périodique (J.C.P.) 1976, II, 18503, note Penneau) it ruled out any possibility of taking into account a change of sexual attributes following hormone treatment and surgery which the person concerned had voluntarily undergone (first judgment), but indicated that the courts could take into account involuntary morphological changes following treatment carried out in a concentration camp during the second world war (second judgment). On 30 November 1983 (Bull. civ. I, no. 284, p. 253; D.S. 1984, p. 165, note Edelman; J.C.P. 1984, II, 20222, submissions of Mr Advocate General Sadon) it dismissed an appeal which had been brought against a judgment refusing to allow a change of sex despite a favourable medical report, as "the Court of Appeal [had] found that despite the operations undergone by her, Nadine V. was not of male sex". Two further judgments were given by the Court of Cassation on 3 and 31 March 1987 (Bull. civ. I, no. 79, p. 59, and no. 116, p. 87; D.S. 1987, p. 445, note Jourdain). The latter judgment relates to the present case (see paragraph 17 above). In the former, the court had to rule on the position of a transsexual who was married and the father of a child. While acknowledging that genetically he was still a man, the Nîmes Court of Appeal had on 2 July 1984 ordered rectification of his birth certificate and change of forenames. On appeal by the procureur’s office the Court of Cassation quashed the judgment on the grounds that its findings of fact did not show that there was a change of sex caused by a factor extraneous to the will of the person concerned. On 7 March 1988 (Bull. civ. I, no. 176, p. 122), 7 June 1988 (Gazette du Palais (G.P.) 7-8 June 1989, jurisprudence, p. 4) and 10 May 1989 (Bull. civ. I, no. 189, p. 125) the court dismissed appeals by transsexuals who had voluntarily undergone hormone treatment only, on the grounds that the Court of Appeal had found that the said treatment was of voluntary nature and had been entitled to regard as insufficient the psychological and social factors relied on. On 21 May 1990 the Court of Cassation dealt in the same way with four appeals (J.C.P. 1990, II, 21588, with report by Mr Massip and submissions of Mrs Advocate General Flipo). It stated in particular that: "... transsexualism, even where medically acknowledged, cannot be regarded as a true change of sex, as the transsexual, although having lost certain characteristics of his original sex, has not thereby acquired those of the opposite sex; ..." In the fourth of these appeals the Court of Appeal was criticised for "not having investigated further to see if, in default of rectification of sex, at the very least the substitution of forenames requested ought to have been allowed". The Court of Cassation’s response was that the applicant had "before the Court of Appeal requested a change of forenames only as a consequence of the change of sex she was claiming" and that she had "not shown that she had a legitimate interest within the meaning of the third paragraph of Article 57 of the Civil Code in her forenames being amended even if the change of sex were not allowed". The ground of appeal was therefore rejected, as it had not been argued before the court below. C. Documents 1. Administrative documents (a) Identity documents 25. As a general rule, sex is not indicated on administrative documents issued to natural persons, such as traditional national identity cards, classic style passports, driving licences, voting cards, certificates of nationality, etc. However, the new computerised identity cards do mention sex in order to enable an individual to be identified by machine and to take account of the existence of ambiguous forenames. This also applies to the "Community" style passports which are gradually replacing "national" passports. (b) The INSEE number 26. The National Institute for Statistics and Economic Studies (Institut national de la statistique et des études économiques, INSEE) allocates everyone a number. The first digit of the number indicates sex (1 for male sex, 2 for female sex). The number appears in the national identification register of natural persons; the social security bodies use it with additional digits for each person insured. The right to make use of this number is governed by Law no. 78-17 of 6 January 1978 on data processing, files and civil liberties. Under section 8 of this Law access to the register for the purpose of processing data involving names is subject to authorisation by a decree in the Conseil d’Etat issued after consultation with the National Commission on Data Processing and Civil Liberties (Commission nationale de l’informatique et des libertés, CNIL). Decree no. 82-103 of 22 January 1982 relating to the said register provides that "with the exception of the cases specifically provided for by law, the register may not be used for the purpose of tracing individuals" (section 7). In an opinion of June 1981 the CNIL defined in broad terms the principles which it intended to follow in supervising the use of the register and the registration numbers in it. Since then it has recommended against use of the number or had its use withdrawn in numerous cases relating inter alia to taxation and public education. On the other hand, it approved its use for checking personal identities in connection with the computerisation of criminal records and the central data file of cheques of the Banque de France. A decree of 11 April 1985 likewise authorised social security institutions to make use of the registration number. The CNIL has also, when various rules were being drawn up relating to employees’ pay, allowed the number to be used as a means of correspondence with social security bodies. 2. Private documents 27. There is no provision of law which makes it compulsory for banking and postal institutions to include the prefix "Madame", "Mademoiselle" or "Monsieur" on cheques, but in practice they are usually included. However, anyone may require that his surname and forenames only be used. 28. Invoices must include the surnames of the persons they concern but need not indicate their sex (section 3 of Order no. 86-1243 of 1 December 1986). PROCEEDINGS BEFORE THE COMMISSION 29. In her application of 28 September 1987 to the Commission (no. 13343/87), Miss B. complained of the refusal of the French authorities to recognise her true sexual identity, in particular their refusal to allow her the change of civil status sought. She relied on Articles 3, 8 and 12 (art. 3, art. 8, art. 12) of the Convention. 30. The Commission declared the application admissible on 13 February 1990, with the exception of the complaint based on Article 12 (art. 12), which it rejected on the grounds of failure to exhaust domestic remedies. In its report of 6 September 1990 (made under Article 31) (art. 31), it expressed the opinion that there had been a violation of Article 8 (art. 8) (seventeen votes to one) but not of Article 3 (art. 3) (fifteen votes to three). The full text of the Commission’s opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment[*]. FINAL SUBMISSIONS TO THE COURT 31. At the hearing the Government confirmed the submissions in their memorial. They asked the Court to "dismiss the application" on the grounds of failure to exhaust domestic remedies, and "in addition and in any event" as being out of time (Article 26 in fine of the Convention) (art. 26), and "purely in the alternative" as ill-founded. 32. The applicant in her memorial asked the Court to "- hold that France [had] with respect to her violated the provisions of Article 8 para. 1 (art. 8-1) of the Convention ...; - order France to pay her the sum of 1,000,000 French francs (FRF) under Article 50 (art. 50) of the Convention ... and the sum of 35,000 FRF for the costs and expenses she [had] been obliged to incur before the Court of Cassation and before the European Commission and Court." AS TO THE LAW I. THE QUESTIONS OF JURISDICTION AND ADMISSIBILITY RAISED IN THE PRESENT CASE 33. Under Article 26 (art. 26) of the Convention, "The Commission may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken." The Government raised two objections as to admissibility, arguing firstly that domestic remedies had not been exhausted, and secondly that the application was out of time. A. The Court’s jurisdiction to examine the Government’s preliminary objections 34. The Commission asked the Court to declare them inadmissible. It was well aware that as from the De Wilde, Ooms and Versyp v. Belgium judgment of 18 June 1971 (Series A no. 12, pp. 29-30, paras. 47-52) the Court had examined preliminary objections raised under Article 26 (art. 26) and had upheld them on occasion (Van Oosterwijck v. Belgium judgment of 6 November 1980, Series A no. 40, pp. 5-31). It noted, however, that several judges had given dissenting opinions on this point, both at the time (aforesaid judgment of 18 June 1971, pp. 49-58) and in cases since (Brozicek v. Italy judgment of 19 December 1989, Series A no. 167, pp. 23-28, and Cardot v. France judgment of 19 May 1991, Series A no. 200, pp. 23-24). It argued that the Court’s case-law on this point had two important consequences: it rendered more burdensome the proceedings of the Convention institutions, and created a further lack of equality between governments and applicants, as the latter are not able to appeal against findings of inadmissibility by the Commission. 35. The applicant expressed no opinion. The Government stated that they maintained their objections, in view of the Court’s "clear and consistent attitude" on the point. 36. The Court has considered the Commission’s reasoning but sees no reason, as matters stand, for abandoning a line of case-law which has been followed constantly for over twenty years and which has found expression in a large number of judgments. It notes in particular that the arguments put forward are substantially the same as those advanced by the Commission in the De Wilde, Ooms and Versyp case (Series B no. 10, pp. 209-213, 214 and 258-263), which were not upheld in the above-mentioned judgment of 18 June 1971. It therefore considers that it has jurisdiction to examine the Government’s preliminary objections. B. The merits of the Government’s preliminary objections 1. The failure to exhaust domestic remedies 37. According to the Government, the applicant should have relied on the Convention before the courts of first instance instead of doing so for the first time in her appeal to the Court of Cassation. As her argument had been raised at such a late stage, it had been inadmissible. 38. The applicant countered that the principle of the prohibition on raising new submissions in the Court of Cassation did not apply to arguments of public policy, pure points of law or arguments which followed from the decision being challenged; moreover, parties were entitled to put forward any new arguments of law. The question whether the reasoning of the Bordeaux Court of Appeal’s judgment conflicted with the Convention fell within this category. 39. The Court finds, in agreement with the Commission, that the applicant complained in substance of a violation of her right to respect for her private life before the Libourne tribunal de grande instance and the Bordeaux Court of Appeal (see in particular, mutatis mutandis, the Guzzardi v. Italy judgment of 6 November 1980, Series A no. 39, pp. 25-27, paras. 71-72). Admittedly, she did not at that time rely on the Convention, but an express reference thereto was not the only means open to her for achieving the aim pursued; there were numerous decisions of the inferior courts, based on provisions of French law alone, which allowed her to hope that she might win her case (see paragraph 23 above). In this respect her position was different from that of Mr Van Oosterwijck (see the judgment cited above, Series A no. 40, pp. 16-17, paras. 33-34). Furthermore, the Court of Cassation did not declare the ground of appeal inadmissible on the grounds of novelty, but rejected it as being ill-founded (see paragraph 17 above), as Miss B. has correctly pointed out. The objection of non-exhaustion of domestic remedies must therefore be dismissed. 2. Whether the application was out of time 40. The Government argued in the alternative that the application had been lodged out of time. In their opinion, the judgment of the Bordeaux Court of Appeal was based solely on questions of fact, so that the appeal to the Court of Cassation had no chance of success in any event. The period of six months mentioned in Article 26 (art. 26) in fine had therefore started to run on 30 May 1985, the date of the said judgment, and the applicant had not complied therewith. 41. Miss B., on the other hand, considered that it was not possible to state a priori that an appeal would be ineffective, on the alleged ground that the courts below had ruled "on the particular facts": the Court of Cassation had jurisdiction to review the correctness of the principles of law applied by the Court of Appeal in declining to take account of a change of sex. 42. The Court notes that the applicant put to the Court of Cassation a point of law relating to Article 8 (art. 8) and founded on the opinion of the Commission in the Van Oosterwijck case (Series B no. 36, pp. 23-26, paras. 43-52). Furthermore, there was no consistent case-law in existence at the time to show in advance that the applicant’s appeal was pointless. An appeal to the Court of Cassation is after all in principle one of the remedies which should be exhausted in order to comply with Article 26 (art. 26). Even supposing that it was probably destined to fail in the particular case, the bringing of the appeal was thus not futile. It therefore had the effect at the very least of postponing the starting-point of the six-month period. Accordingly, the objection that the application was out of time must also be dismissed. II. THE MERITS A. Alleged violation of Article 8 (art. 8) 43. According to the applicant, the refusal to recognise her true sexual identity was a breach of Article 8 (art. 8) of the Convention, which reads as follows: "1. Everyone has the right to respect for his private and family life, his home and his correspondence. 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." She argued that by failing to allow the indication of her sex to be corrected in the civil status register and on her official identity documents, the French authorities forced her to disclose intimate personal information to third parties; she also alleged that she faced great difficulties in her professional life. 44. The Court notes first of all that the notion of "respect" enshrined in Article 8 (art. 8) is not clear-cut. This is the case especially where the positive obligations implicit in that concept are concerned, as in the instant case (see the Rees v. the United Kingdom judgment of 17 October 1986, Series A no. 106, p. 14, para. 35, and the Cossey v. the United Kingdom judgment of 27 September 1990, Series A no. 184, p. 15, para. 36), and its requirements will vary considerably from case to case according to the practices followed and the situations obtaining in the Contracting States. In determining whether or not such an obligation exists, regard must be had to the fair balance that has to be struck between the general interest and the interests of the individual (see in particular the above-mentioned Cossey judgment, p. 15, para. 37). 45. Miss B. argued that it was not correct to consider her application as substantially identical to those of Mr Rees and Miss Cossey previously before the Court. Firstly, it was based on new scientific, legal and social elements. Secondly, there was a fundamental difference between France and England in this field, with regard to their legislation and the attitude of their public authorities. Thus the application of the very criteria stated in the above-mentioned judgments of 17 October 1986 and 27 September 1990 would have led to a finding of a violation by France, as French law, unlike English law, did not even acknowledge the appearance lawfully assumed by a transsexual. The applicant also invited the Court to develop its analysis further than in the aforesaid two cases. She wished the Court to hold that a Contracting State is in breach of Article 8 (art. 8) if it denies in general fashion the reality of the psycho-social sex of transsexuals. 1. Scientific, legal and social developments 46. (a) The Court said in the Cossey judgment that it "[had] been informed of no significant scientific developments that [had] occurred" since the Rees judgment; "in particular, it remain[ed] the case ... that gender reassignment surgery [did] not result in the acquisition of all the biological characteristics of the other sex" (loc. cit., p. 16, para. 40). According to the applicant, science appears to have contributed two new elements to the debate on the contrast between appearance (changed somatic sex and constructed gonadal sex) and reality (unchanged chromosomal sex but contrary psycho-social sex) as regards the sex of transsexuals. Firstly, the chromosomal criterion was not infallible (cases of persons with intra-abdominal testicles, so-called testicular feminisation, or with XY chromosomes despite their feminine appearance); secondly, current research suggested that the ingestion of certain substances at a given stage of pregnancy, or during the first few days of life, determined transsexual behaviour, and that transsexualism might result from a chromosome anomaly. There might thus be a physical, not merely psychological explanation of the phenomenon, which would mean that there could be no excuse for refusing to take it into account in law. (b) As regards the legal aspects of the problem, Miss B. relied on the dissenting opinion of Judge Martens, annexed to the Cossey judgment (Series A no. 184, pp. 35-36, para. 5.5); the differences which still subsisted between the member States of the Council of Europe as to the attitude to be adopted towards transsexuals (ibid., p. 16, para. 40) were counterbalanced to an increasing extent by developments in the legislation and case-law of many of those States. This was supported by resolutions and recommendations of the Assembly of the Council of Europe and the European Parliament. (c) Finally, the applicant stressed the rapidity of social changes in the countries of Europe, and the diversity of cultures represented by those countries which had adapted their laws to the situation of transsexuals. 47. The Government did not deny that science had in the twentieth century, especially in the last three decades, made considerable advances in the use of sexual hormones and in plastic and prosthetic surgery, and that the question of sexual identity was still in the course of evolution from the medical point of view. Transsexuals nevertheless kept their original chromosomal sex; only their appearance could be changed. But the law should fasten on the reality. Moreover, operations which presented certain dangers should not be trivialised. National laws were also evolving and many of them had already changed, but the new laws thus introduced did not lay down identical solutions. In short, things were in a state of flux, legally, morally and socially. 48. The Court considers that it is undeniable that attitudes have changed, science has progressed and increasing importance is attached to the problem of transsexualism. It notes, however, in the light of the relevant studies carried out and work done by experts in this field, that there still remains some uncertainty as to the essential nature of transsexualism and that the legitimacy of surgical intervention in such cases is sometimes questioned. The legal situations which result are moreover extremely complex: anatomical, biological, psychological and moral problems in connection with transsexualism and its definition; consent and other requirements to be complied with before any operation; the conditions under which a change of sexual identity can be authorised (validity, scientific presuppositions and legal effects of recourse to surgery, fitness for life with the new sexual identity); international aspects (place where the operation is performed); the legal consequences, retrospective or otherwise, of such a change (rectification of civil status documents); the opportunity to choose a different forename; the confidentiality of documents and information mentioning the change; effects of a family nature (right to marry, fate of an existing marriage, filiation), and so on. On these various points there is as yet no sufficiently broad consensus between the member States of the Council of Europe to persuade the Court to reach opposite conclusions to those in its Rees and Cossey judgments. 2. The differences between the French and English systems 49. The applicant argued that the lot of transsexuals could be seen to be much harder in France than in England on a number of points. The Commission agreed in substance with this opinion. 50. In the Government’s opinion, on the other hand, the Court could not depart in the case of France from the solution adopted in the Rees and Cossey judgments. The applicant might no doubt in the course of her daily life experience a number of embarrassing situations, but they were not serious enough to constitute a breach of Article 8 (art. 8). At no time had the French authorities denied transsexuals the right to lead their own lives as they wished. The applicant’s own history was evidence of this, as Miss B. had succeeded in passing as a woman despite her male civil status. Besides, a transsexual who did not want third parties to know his or her biological sex was in a similar situation to that of a person wishing to keep other personal information secret (age, income, address, etc.). Moreover, as a general consideration, the margin of appreciation allowed to the Contracting States applied both to the choice of criteria for recognition of a change of sex and to the choice of ancillary measures in the event of a refusal of recognition. 51. The Court finds, to begin with, that there are noticeable differences between France and England with reference to their law and practice on civil status, change of forenames, the use of identity documents, etc. (see paragraphs 19-22 and 25 above, to be contrasted with paragraph 40 of the above-mentioned Rees judgment). It will examine below the possible consequences of these differences in the present case from the point of view of the Convention. (a) Civil status (i) Rectification of civil status documents 52. The applicant considered the rejection of her request for rectification of her birth certificate to be all the more culpable since France could not claim, as the United Kingdom had done, that there were any major obstacles linked to the system in force. The Court had found, in connection with the English civil status system, that the purpose of the registers was not to define the present identity of an individual but to record a historic fact, and their public character would make the protection of private life illusory if it were possible to make subsequent corrections or additions of this kind (see the above-mentioned Rees judgment, Series A no. 106, pp. 17-18, para. 42). This was not the case in France. Birth certificates were intended to be updated throughout the life of the person concerned (see paragraph 19 above), so that it would be perfectly possible to insert a reference to a judgment ordering the amendment of the original sex recorded. Moreover, the only persons who had direct access to them were public officials authorised to do so and persons who had obtained permission from the procureur de la République; their public character was ensured by the issuing of complete copies or extracts. France could therefore uphold the applicant’s claim without amending the legislation; a change in the Court of Cassation’s case-law would suffice. 53. In the Government’s opinion, French case-law in this respect was not settled, and the law appeared to be in a transitional phase. 54. In the Commission’s opinion, none of the Government’s arguments suggested that the Court of Cassation would agree to a transsexual’s change of sex being recorded in the civil status register. It had rejected the appeal in the present case on the grounds that the applicant’s situation derived from a voluntary choice on her part and not from facts which had existed prior to the operation. 55. The Court notes first of all that nothing would have prevented the insertion, once judgment had been given, in Miss B.’s birth certificate, in some form or other, of an annotation whose purpose was not, strictly speaking, to correct an actual initial error but to bring the document up to date so as to reflect the applicant’s present position. Furthermore, numerous courts of first instance and courts of appeal have already ordered similar insertions in the case of other transsexuals, and the procureur’s office has hardly ever appealed against such decisions, the great majority of which have now become final and binding (see paragraph 23 above). The Court of Cassation has adopted a contrary position in its case-law, but this could change (see paragraph 24 above). It is true that the applicant underwent the surgical operation abroad, without the benefit of all the medical and psychological safeguards which are now required in France. The operation nevertheless involved the irreversible abandonment of the external marks of Miss B.’s original sex. The Court considers that in the circumstances of the case the applicant’s manifest determination is a factor which is sufficiently significant to be taken into account, together with other factors, with reference to Article 8 (art. 8). (ii) Change of forenames 56. The applicant pointed out that the law of 6 Fructidor Year II (see paragraph 22 above) prohibited any citizen from bearing a surname or forename other than those recorded on his or her birth certificate. In the eyes of the law, her forename was therefore Norbert; all her identity documents (identity card, passport, voting card, etc.), her cheque books and her official correspondence (telephone accounts, tax demands, etc.) described her by that name. Unlike in the United Kingdom, whether she could change her forename did not depend on her wishes only; Article 57 of the Civil Code made this subject to judicial permission and the demonstration of a "legitimate interest" capable of justifying it (see paragraph 22 above). Miss B. knew of no decision which had regarded transsexualism as giving rise to such an interest. In any event, the Libourne tribunal de grande instance and the Bordeaux Court of Appeal had refused to allow her the forenames Lyne Antoinette (see paragraphs 13-15 above). Finally, the status of informally adopted forenames was highly uncertain. The Commission agreed in substance with this argument. 57. The Government maintained, on the other hand, that there was ample favourable case-law on the point, supported by the public prosecutor’s offices. It merely required that a "neutral" forename such as Claude, Dominique or Camille was chosen; the applicant had, however, requested forenames which were exclusively female. In addition, many people frequently made use of an informally adopted forename ("prénom d’usage") which differed from that recorded in their birth certificate. The Government conceded, however, that this practice had no legal validity. 58. The judgments supplied to the Court by the Government do indeed show that non-recognition of the change of sex does not necessarily prevent the person in question from obtaining a new forename which will better reflect his or her physical appearance (see paragraph 23 above). However, this case-law was not settled at the time when the Libourne and Bordeaux courts gave their rulings. Indeed, it does not appear to be settled even today, as the Court of Cassation has apparently never had an occasion to confirm it. Moreover, the door it opens is a very narrow one, as only the few neutral forenames can be chosen. As to informally adopted forenames, they have no legal status. To sum up, the Court considers that the refusal to allow the applicant the change of forename requested by her is also a relevant factor from the point of view of Article 8 (art. 8). (b) Documents 59. (a) The applicant stressed that an increasing number of official documents indicated sex: extracts of birth certificates, computerised identity cards, European Communities passports, etc. Transsexuals could consequently not cross a frontier, undergo an identity check or carry out one of the many transactions of daily life where proof of identity is necessary, without disclosing the discrepancy between their legal sex and their apparent sex. (b) According to the applicant, sex was also indicated on all documents using the identification number issued to everyone by INSEE (see paragraph 26 above). This number was used as part of the system of dealings between social security institutions, employers and those insured; it therefore appeared on records of contributions paid and on payslips. A transsexual was consequently unable to hide his or her situation from a potential employer and the employer’s administrative staff; the same applied to the many occasions in daily life where it was necessary to prove the existence and amount of one’s income (taking a lease, opening a bank account, applying for credit, etc). This led to difficulties for the social and professional integration of transsexuals. Miss B. had allegedly been a victim of this herself. The INSEE number was also used by the Banque de France in keeping the register of stolen and worthless cheques. (c) Finally, the applicant encountered problems every day in her economic life, in that her invoices and cheques indicated her original sex as well as her surname and forenames. 60. The Commission agreed substantially with the applicant’s arguments. In its opinion the applicant, as a result of the frequent necessity of disclosing information concerning her private life to third parties, suffered distress which was too serious to be justified on the ground of respect for the rights of others. 61. The Government replied, to begin with, that certificates of civil status and French nationality, driving licences, voting cards and national identity cards of traditional type did not mention sex. This was admittedly not the case with the Community passport, but the design of that depended on regulations from Brussels and was thus not a requirement imposed by France. The applicant could in fact enjoy freedom of movement independently of her sexual identity, and some of the examples given by her were of no relevance; thus the report of a road accident or other claim did not require the sex of the insured to be specified. The INSEE number had been introduced after the second world war for demographic statistical purposes, and was used subsequently for identifying the recipients of French social security benefits. It was hardly ever used apart from this, and did not appear on identity cards, passports or other administrative documents. In any event, the public authorities to which it was communicated were obliged to keep it secret. As for employers, they needed to know it in order to pay a proportion of their employees’ social security contributions. In this connection the Government expressed the opinion that if Miss B. had been unable to find paid work outside the entertainment world, there could be many reasons for this apart from her being a transsexual. There were transsexuals who exercised other equally worthy professions. What was more, any discrimination in recruitment based on the sex or morals of the person concerned was an offence under Article 416-1 of the Criminal Code. No transsexual had ever relied on this Article. There was no reason either why banks should not be asked to print on cheques only the surname and forenames of the drawer without the prefix "M.", "Mme" or "Mlle" (see paragraph 27 above), nor did banks verify that the forenames stated were the same as those recorded in the civil status register. Similarly, invoices did not normally mention the customer’s sex or forenames, but only the surname (see paragraph 28 above). There were thus means available to transsexuals for preserving their privacy. 62. The Court is not convinced by this argument. It considers, in agreement with the Commission, that the inconveniences complained of by the applicant in this field reach a sufficient degree of seriousness to be taken into account for the purposes of Article 8 (art. 8). (c) Conclusion 63. The Court thus reaches the conclusion, on the basis of the above-mentioned factors which distinguish the present case from the Rees and Cossey cases and without it being necessary to consider the applicant’s other arguments, that she finds herself daily in a situation which, taken as a whole, is not compatible with the respect due to her private life. Consequently, even having regard to the State’s margin of appreciation, the fair balance which has to be struck between the general interest and the interests of the individual (see paragraph 44 above) has not been attained, and there has thus been a violation of Article 8 (art. 8). The respondent State has several means to choose from for remedying this state of affairs. It is not the Court’s function to indicate which is the most appropriate (see inter alia the Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 25, para. 58, and the Airey v. Ireland judgment of 9 October 1979, Series A no. 32, p. 15, para. 26). B. Alleged violation of Article 3 (art. 3) 64. Before the Commission, Miss B. also claimed that she had been treated by the law in a manner which was both inhuman and degrading within the meaning of Article 3 (art. 3). She has not repeated this complaint since, and the Court does not consider it necessary to examine the question of its own motion. III. APPLICATION OF ARTICLE 50 (art. 50) 65. Under Article 50 (art. 50), "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party". A. Damage 66. The applicant in the first place claimed 1,000,000 FRF in respect of the pecuniary and non-pecuniary damage she had allegedly suffered. The non-pecuniary damage stemmed from the situation imposed on her by French law; the pecuniary damage resulted from the problems she encountered in her everyday life, due in particular to the fact that she had never been able to find employment for fear of having to disclose the sexual identity appearing in her civil status documents. In the Government’s opinion, she had not established that such damage existed, and the amount claimed was exorbitant. Were the Court to find that there had been a violation of Article 8 (art. 8), the judgment would in itself constitute sufficient just satisfaction. The Delegate of the Commission expressed no opinion. 67. The Court considers that Miss B. has suffered non-pecuniary damage as a result of the situation found in the present judgment to be contrary to the Convention. Taking a decision on an equitable basis as required by Article 50 (art. 50), it awards her 100,000 FRF under this head. On the other hand, it dismisses her claims relating to pecuniary damage. The applicant was in employment for a considerable time, and a number of transsexuals have employment in France. Her difficulty in finding work because of having to disclose her circumstances, although real, is therefore not insurmountable. B. Costs and expenses 68. The applicant also claimed 35,000 FRF in respect of the costs and expenses she had incurred before the Court of Cassation (10,000 FRF) and before the Convention institutions (25,000 FRF). The Government left it to the Court to assess the claim with reference to the criteria laid down in its case-law. The Delegate of the Commission expressed no opinion. 69. On the basis of those criteria, the Court considers that the respondent State must reimburse the applicant the entire amount in question. FOR THESE REASONS, THE COURT 1. Holds by sixteen votes to five that it has jurisdiction to examine the Government’s preliminary objections; 2. Dismisses them unanimously; 3. Holds by fifteen votes to six that there has been a violation of Article 8 (art. 8); 4. Holds unanimously that it is not necessary also to examine the case from the point of view of Article 3 (art. 3); 5. Holds by fifteen votes to six that the respondent State is to pay the applicant within three months 100,000 (one hundred thousand) French francs in respect of non-pecuniary damage and 35,000 (thirty-five thousand) French francs for costs and expenses; 6. Dismisses unanimously the remainder of the claim for just satisfaction. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 25 March 1992. John CREMONA President Marc-André EISSEN Registrar In accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 53 para. 2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a) concurring opinion of Mr Russo; (b) joint dissenting opinion of Mr Bernhardt, Mr Pekkanen, Mr Morenilla and Mr Baka; (c) dissenting opinions of Mr Matscher, Mr Pinheiro Farinha, Mr Pettiti, Mr Valticos, Mr Loizou and Mr Morenilla, prefaced by a joint introduction; (d) concurring opinion of Mr Walsh; (e) separate opinion of Mr Martens. J. C. M.-A. E. CONCURRING OPINION OF JUDGE RUSSO (Translation) I voted in favour of point 1 of the operative provisions, but I am of the opinion that the Court will have to reconsider its case-law on this point once Protocol No. 9 (P9) to the Convention has come into force. JOINT DISSENTING OPINION OF JUDGES BERNHARDT, PEKKANEN, MORENILLA AND BAKA We have voted against point 1 of the operative provisions of the present judgment. For the reasons mentioned in paragraph 34 of the judgment and in the dissenting opinions quoted therein, we are of the opinion that the Court should no longer review preliminary objections rejected by the Commission. DISSENTING OPINIONS OF JUDGES MATSCHER, PINHEIRO FARINHA, PETTITI, VALTICOS, LOIZOU AND MORENILLA, PREFACED BY A JOINT INTRODUCTION (Translation) We, the members of the minority, all agree in considering that in the present case of B. v. France a finding of a violation should not have been made. In the field of transsexualism the wide margin of appreciation allowed to the State must permit the State to regulate by means of case-law the legal status of genuine transsexuals, following objective criteria and respecting Article 8 (art. 8). The following opinions vary in their assessment but do not contradict each other as to their reasoning. DISSENTING OPINION OF JUDGE MATSCHER (Translation) I regret that I find it impossible to join the majority in voting in favour of a violation of Article 8 (art. 8) even though the judgment does not state with sufficient clarity what precisely is thought to constitute the violation. The judgment mentions a variety of elements (the refusal to grant B. rectification of her civil status document, to allow her to change her forename, to have the statement or indication of sex deleted from the documents and identity papers for use in daily life), all these elements being relevant or "to be taken into account", and which, taken as a whole, led to the finding that there had been a violation. I entirely agree with the considerations on which were based the findings that there had not been violations of Article 8 (art. 8) in the Rees and Cossey judgments, namely that English law provided for the possibility of changing forenames and of deleting indications of sex from documents and identity papers, in each case without great administrative difficulties. To the extent that this is not the case in French law, I too would vote in favour of a finding of a violation in the present case. But the judgment does not define the extent of the first element, that is to say, rectification of the birth certificate - whether a rectification of the original entry or merely a marginal note - and this could lead to consequences which I believe go far beyond the requirements of Article 8 (art. 8) on this point (in this respect my point of view is close to that expressed by Judge Walsh in his separate opinion). Let us not forget that the aim of the original application to the French courts by B., "wishing to marry her friend", was to have her right to rectification of her birth certificate recognised in order to allow her to marry, and that it was the refusal to grant her such rectification which was the original reason for her application to the Convention institutions. Although the Commission did not declare the complaint based on Article 12 (art. 12) admissible, the extent of the element of "rectification of civil status documents", stated to be relevant in the reasoning of the present judgment, remains excessively vague and does not rule out consequences which I would not be able to subscribe to. While sensitive to the problems of transsexuals, I also attach importance to the factors mentioned in the dissenting opinions of Judges Pinheiro Farinha, Pettiti, Valticos and Morenilla with respect to the initiative taken by B. - lightly, as it seems - of having an operation without the medical guarantees which such surgery ought to be subject to. In short, I do not feel able to subscribe to a judgment which does not state with sufficient clarity that it is not departing from the conclusions in the Rees and Cossey judgments, and which leaves open the possibility of interpreting it as an overruling of those judgments. DISSENTING OPINION OF JUDGE PINHEIRO FARINHA (Translation) 1. I am unable to agree with the judgment and I do not understand why the Court’s case-law has been overruled, when that case-law was confirmed scarcely one year ago. I fear that there will be serious consequences, in particular the trivialisation of irreversible surgical operations instead of suitable psychiatric treatment. 2. The Court’s function is to interpret the Convention - to give it a dynamic and up-to-date interpretation, but nevertheless an interpretation. The case-law of the Court cannot go further than the Convention and does not have the right to grant new rights to individuals and impose new obligations on States. 3. The Convention does not guarantee the right to change sex, nor the right to amendment of civil status documents, nor, unlike the International Covenant on Civil and Political Rights (Article 24), that of a public civil status register. How can a specific course of action in this matter be imposed on States in the name of the Convention? 4. Surgical operations do not change the individual’s real sex, but only the outward signs and morphology of sex. 5. As for the applicant (whom I will not refer to in the feminine, as I do not know the concept of social sex and I do not recognise the right of a person to change sex at will), he is not a true transsexual: "... the court of second instance found that even after the hormone treatment and surgical operation which he underwent, Norbert [B.] continued to show the characteristics of a person of male sex; ... it considered that, contrary to the contentions of the person in question, his present state is not the result of elements which existed before the operation and of surgical intervention required by therapeutic necessities but indicates a deliberate intention on the part of the person concerned ..." (finding of the Court of Cassation, see paragraph 17 of the judgment). 6. Why impose on the French State the consequences of a surgical operation performed in another State, voluntarily and intentionally and without prior checks (see paragraph 11 of the judgment)? 7. The International Commission on Civil Status "essentially has as its object ... the drawing up of recommendations or draft conventions with a view to harmonising the provisions in force in the member States on these matters ...". The matters in question are those which relate to the status of the individual, the family and nationality. The International Commission has concerned itself for some time with the position of transsexuals, and has not yet reached the stage of drawing up a recommendation or draft convention. 8. There is no common denominator in the legislation of the States Parties to the Convention to justify such a radical decision. 9. Among the situations which could arise from the application of the present judgment (see paragraphs 52-55), I shall mention two: - An illegitimate child wishes to start proceedings in respect of paternity, but after his birth the man who begot him has had a sex change operation and his civil status has been rectified; he is asking for a woman to be acknowledged as his father! - After rectification of civil status, a transsexual will be able to marry a person of his true sex (original sex); but the Court "finds ... that attachment to the traditional concept of marriage provides sufficient reason for the continued adoption of biological criteria for determining a person’s sex for the purposes of marriage" (above-mentioned Cossey judgment, p. 18, para. 46), and "in the Court’s opinion, the right to marry guaranteed by Article 12 (art. 12) refers to the traditional marriage between persons of opposite biological sex. This appears also from the wording of the Article which makes it clear that Article 12 (art. 12) is mainly concerned to protect marriage as the basis of the family" (Rees judgment, p. 19, para. 49). In my opinion the Court should state in the present judgment that its decision has no effect on the right to marry; this right was, however, the reason behind B.’s application to the Commission. 10. I therefore conclude that there has not been a violation of Article 8 (art. 8) of the Convention, and I consider that the legal regulation of transsexualism remains within the competence of each State, taking account of moral attitudes and traditions, although the opinions of medical and scientific experts differ. 11. Since in my opinion there has been no violation of the Convention, I do not regard it as possible to vote, in the same judgment, in favour of the award of a sum of money under Article 50 (art. 50) of the Convention. DISSENTING OPINION OF JUDGE PETTITI (Translation) I did not vote with the majority who held that there had been a violation of Article 8 (art. 8). The judgment no doubt relates only to the particular case, but this was one of the least significant ones, compared with other cases considered by the French courts, notably in 1990 and 1991. To begin with, I note certain contradictions. The majority of the Court did not state that they were overruling the Rees and Cossey judgments. They noted in paragraph 55 that "nothing would have prevented the insertion, once judgment had been given, in Miss B.’s birth certificate, in some form or other, of an annotation whose purpose was not, strictly speaking, to correct an actual initial error but to bring the document up to date so as to reflect the applicant’s present position". In the French civil status system this can only be done by a judgment, and there have been numerous judgments by which it has been ordered, but this on the basis of rigorous criteria which make it possible to exclude certain categories in respect of which the scientific data and the lack of properly documented medical supervision provide grounds for refusals by the courts. The Court held in paragraph 63 that: "... on the basis of the above-mentioned factors which distinguish the present case from the Rees and Cossey cases and without it being necessary to consider the applicant’s other arguments, ... she finds herself daily in a situation which, taken as a whole, is not compatible with the respect due to her private life. Consequently, even having regard to the State’s margin of appreciation, the fair balance which has to be struck between the general interest and the interests of the individual (see paragraph 44 above has not been attained, and there has thus been a violation of Article 8 (art. 8). The respondent State has several means to choose from for remedying this state of affairs. It is not the Court’s function to indicate which is the most appropriate ..." Did the majority take into account the operations performed in public hospitals in France after 1973, even though Miss B. was operated on in Morocco? Can one deduce from paragraph 66 that the majority had in mind primarily the granting of rights relating to identity documents and passports, without there being any obligation of rectification of civil status, in line with the Rees and Cossey judgments and the special system in Britain relating to administrative requirements as to personal identity, still less what was originally claimed by B., namely the possibility of marrying her friend? From the point of view of jurists who favour a broad interpretation of the status of transsexuals, the B. judgment would be easier to appreciate if cases of true transsexuals (operated on in public hospitals with medical supervision and documentation) had been systematically refused by the French courts. This is not the case. The European Convention on Human Rights does not impose any obligation on the High Contracting Parties to legislate on the question of rectification of civil status in connection with transsexualism, even in application of the theory of positive obligations for States (case of X v. the Netherlands). Thus several member States have not enacted any legislation relating to transsexualism. The various national laws on the point show a great variety of criteria and mechanisms. In any event, member States who wish to confront these problems have a choice between the legislative path and the case-law path, and in this sensitive area, dependent on very diverse social and moral situations, the margin of appreciation allowed to the State is a wide one. Whichever path is chosen, legislative or by means of case-law, the State remains free to define the criteria for recognition of cases of intersexualism or true transsexualism, dependent upon undisputed scientific knowledge. A national court can take a decision on the basis of such criteria without violating the Convention. These principles being taken as read, what consequences can be drawn from them in the case of B. v. France with respect to Article 8 (art. 8)? To compare the position in France with the position in Britain, as evaluated by the Court in the Rees and Cossey cases, was not enough; it should have been compared with the legislative void or absence of case-law in other member States. British law is less open than French law as regards change of status and sex in civil status registers; it offers more scope for administrative measures, such as passports and formalities, but that is the result of the peculiar system of civil status registration in Great Britain, rather than specific provisions introduced for the benefit of transsexuals. If Article 8 (art. 8) is to be applied to intersexuals and true transsexuals, the question should be asked, with reference to France, whether the right to rectification of civil status is being correctly granted by the courts. The list of decisions shows that there are as many decisions in favour of applicants as there are decisions against them. A number of them even allow complete retrospective effect. The Court of Cassation admittedly gave four decisions against applicants in 1990, but the particular cases were debatable ones. There has not been a decision taken by a plenary court, even in the most or least disputed cases of transsexualism. Subsequent to these decisions by the Court of Cassation, the Colmar Court of Appeal granted rectification of civil status to a person who had in addition after the operation obtained an amended passport showing her new sex. No appeal having been brought by the procureur général, the decision is final and binding and rectification of civil status has taken place. By taking a generous and wide interpretation of Article 8 (art. 8), it might be considered that a true transsexual who has been operated in France, after going through the entire period of tests according to the document issued by the National Medical Council, should be allowed rectification of civil status. The reason for this could be that the State, having agreed to the operation and accepted that it should be paid for by the social security service on condition that the surgery is performed in a public hospital, must, as a positive obligation from the point of view of the European Convention on Human Rights, allow facilities for administrative documents and even go as far as rectification of civil status. This is not so in the B. case. The existence of transsexualism was not verified in accordance with the medical practice statement and the operation took place abroad under unknown conditions. The Bordeaux Court, ruling on the present case, possibly had doubts as to the social and professional reality. It is not for the European Court to overrule this decision, which was taken in a non-typical case and was a judgment on the particular facts, not a judgment of principle, and is compatible with the European Convention on Human Rights, even from the point of view of Article 8 (art. 8). The theory that any person who has the irrepressible will to live under a sex other than that of origin, and is convinced that this is his true destiny, must be able to obtain rectification of his civil status, is a highly debatable one, even if it is motivated by legitimate concern for social integration and private life. For where hormone treatment alone has taken place, that may be reversible. Many cases of true or false transsexual applicants correspond to psychiatric states which should be treated by psychiatry only, so as not to risk disaster, and for this reason a medical report is essential. Furthermore, cases of double personality and schizophrenia are known to medicine. If one were to be guided solely by the wish to make the individual will of the patient coincide with his social life, one would then have to accept change of civil status even in such deviant cases. The position of genuine transsexuals no doubt deserves understanding and attention from the point of view of Article 8 (art. 8). But it is still clear that even the most advanced legislation cannot provide a remedy for the social obstacles. Even after rectification of civil status, a person who has been reintegrated into society has to reveal his past in connection with employment, careers and retirement, so that the various periods can be accounted for. Amending INSEE type statistical forms would not solve this problem. For this reason one should abide by highly flexible formulas which take account as far as possible of medical supervision procedures, which alone are capable of avoiding operations and treatment harmful for a person’s mental balance. Account should also be taken of the social aspects which are peculiar to each State. Certain countries unfortunately have places where false transsexuals are exploited, opening the way to procuring and transvestite prostitution. Among those asking for treatment there is a considerable number of persons in this category. Other countries do not have any such problem, so that their legal position is of no significance. There is another aspect of considerable importance. For States like France whose civil status law is highly precise and compulsory, a consequence of rectification is that there is no obstacle to the marriage of a transsexual with a person of the same sex as his original sex. There is also the problem of adoption being available to the new couple. Let us also bear in mind the legal confusion which results from certain rectifications where the person obtaining rectification was previously married, with or without children. Let us not ignore the possibility of artificial insemination after rectification or after an operation. The whole of civil law and inheritance law could be thrown into confusion. If there is a field where States should be allowed the maximum margin of appreciation, having regard to moral attitudes and traditions, it is certainly that of transsexualism, having regard also to developments in the opinions of the medical and scientific experts. A solution by means of case-law may be a legitimate choice for the State to make. If the development of case-law makes it possible for domestic law to respond to undeniable cases, making it possible for rectification of civil status to take place, as the Colmar judgment did, it appears to be consistent with Article 8 (art. 8) to regard this case-law method as in accordance with the requirements of that Article (art. 8). Unlike in the Huvig and Kruslin v. France judgments (judgments of 24 April 1990, Series A no. 176-A and B), the Court has given no indication as to what means are appropriate. Its phrase about "means for remedying this state of affairs" remains vague and uncertain; for it is clear that the individual’s socio- psychological determination cannot on its own be sufficient justification for a request for rectification. Even if the member State agrees to rectification, it remains free to restrict the conditions for it and its consequences in civil law, if it does not systematically refuse applications in all such cases. In addition, the Court’s judgment did not expressly state that there had been a violation with respect to B.’s actual request to the French court, which read as follows: "To hold that, registered in the civil status register of [her] place of birth as of male sex, [she was] in reality of feminine constitution; to declare that [she was] of female sex; to order rectification of [her] birth certificate; to declare that [she should] henceforth bear the forenames Lyne Antoinette." Conclusion: in the present state of French law and the status of the family, and taking into account the rights of others, it is apparent that the case-law path is the one which best respects Article 8 (art. 8) of the Convention, subject to the margin of appreciation allowed to the State. DISSENTING OPINION OF JUDGE VALTICOS, JOINED BY JUDGE LOIZOU (Translation) It is naturally with great regret that I have to differ from the above judgment, which in other circumstances might no doubt have been justified or even inevitable, and some of whose consequences are certainly reasonable (as will be stated below), but which does not seem to me to be acceptable on the facts of the case. By overturning a line of case-law whose most recent decision was scarcely a year old - even though the facts, albeit different to a certain extent, were not in my opinion different enough to justify this change of direction - I fear that the majority of the Court could be opening the way to serious and as yet unforeseeable consequences. This does not mean that in suitable circumstances the situation of a transsexual should not be dealt with by a change of civil status, or at least by measures intended to make his or her social situation less difficult. However, there are, as we know, numerous types of transsexual. Thus there is considerable variation from one case to another in the psychological or physiological factor and the natural or acquired character (acquired to a greater or lesser extent as a result of surgical operations, themselves very diverse as to motivation and scope). The problem is moreover currently the subject of thorough scientific research, and any decision will depend to a large degree on the circumstances of the case. Why does it seem to me that in this case the facts of the case do not justify the decision which has been taken? Because in reality, while the applicant, who professes to be a woman, asks for the alleged change of sex to be legally recognised, the situation here is one where the change in question is in reality incomplete, artificial and voluntary. To begin with, what does the term "change of sex" mean in this type of case? In the first place, one cannot restrict oneself to psychological factors alone, nor social ones alone, as is apparently sometimes thought. If that were so, there would be no real criteria or boundaries and there would be a risk of arbitrariness. Stability of social life would certainly be compromised thereby. It is therefore also necessary, as an essential condition, for the original real state or the change of state which has occurred, to be sufficiently marked and not in doubt from the physiological point of view. One cannot accept dubious hermaphrodites and ambiguous situations. In the present case we are faced with a voluntary action by the applicant, who, wishing to change sex (for he was originally of male sex, at least in essence, and had performed his military service), underwent an operation in conditions which appear dubious and afforded no guarantee, following which he found himself in a position where he was no longer completely a man, nor indeed truly a woman, but to a certain extent had some of the characteristics of both sexes. We thus encounter two additional difficulties in this case: firstly the voluntary character and secondly the incompleteness of the change. And is there not thus a risk of encouraging such acts (and here it was even an operation performed without any supervision), and what is more, of seeing as a consequence half- feminised men claiming the right to marry normally constituted men, and then where would the line have to be drawn? No doubt there is an evolution taking place in people’s minds and in science; no doubt several European countries do allow applications of this type; but it seems to me that as matters stand it is clearly inappropriate to consider that there has been a violation of the Convention where for legal, moral and scientific reasons, reasons which all deserve respect, a State does not follow, or at least is not yet ready to follow such an evolution. The countries of Europe as a whole do not appear to be ready to have such case-law imposed on them. Having said this, it none the less remains the case that the social situation of these persons whose sex has become indeterminate presents them with problems of various types and causes them serious embarrassment in daily life. Efforts should be made to remedy this. Independently therefore of any formal legal measure aimed at amending their civil status, it would be desirable for the States concerned to endeavour to reduce such inconveniences; there come to mind inter alia measures aimed at authorising changes of forename (going beyond the adoption of so- called neutral forenames only, a practice which would also have the disadvantage of more generally making such names "suspicious") and amending the information on identity documents, which by their detail or the code used reveal the sex of the person concerned. Without ignoring the practical difficulties which such a change might cause, it would deserve serious consideration. DISSENTING OPINION OF JUDGE MORENILLA (Translation) I regret that I am unable to agree with the conclusion of the majority, who found there had in the present case been a violation by France of the applicant’s right to respect for her private life, by reason of the dismissal by the French courts of the proceedings brought before them by Miss B. As I will show below, my reasons are primarily of a legal nature, as they are based on the subsidiary character of the protection of the rights of the individual in the system established by the Convention - this being required by the analysis before our Court of the disputed "act or omission" of the national authorities constituting the infringements which the applicant considers herself to be the victim of - and the margin of appreciation of the Contracting State in this area, bearing in mind that this right is set out in Article 8 (art. 8) of the Convention. These reasons of international law must not, however, neglect an assessment of the social and legal situation of transsexuals in France, as the context within which the applicant’s complaint must be seen. 1.1. Miss B., wishing to marry her friend, asked the tribunal de grande instance at Libourne (see paragraph 13 of the judgment) "to hold that, registered in the civil status register of [her] place of birth as of male sex, [she was] in reality of feminine constitution; to declare that [she was] of female sex; to order rectification of [her] birth certificate; to declare that [she should] henceforth bear the forenames Lyne Antoinette". These heads of claim delimited the proceedings brought by the applicant before the domestic civil courts and, in accordance with the dispositive principle, formed the subject matter of the judgments given by the Libourne tribunal de grande instance, the Bordeaux Court of Appeal and finally the Court of Cassation, whose decision was the "final decision" under Article 26 (art. 26) of the Convention which could be "completely or partially in conflict with the obligations arising from the present Convention", as stated in Article 50 (art. 50). 1.2. However, the applicant interpreted the dismissal of this request as a refusal of the French authorities to acknowledge her "true sexual identity" and to "allow the indication of her sex to be corrected in the civil status register and on her official identity documents" (see paragraph 43 of the judgment), and she considered herself to be a victim within the meaning of Article 8 (art. 8) of the Convention. But as a reading of her application shows, these complaints constitute a mutatio libelli before the Convention institutions, since no claim was put forward by the applicant before the domestic courts regarding the noting in the civil status register of the alleged change to her original sex as stated on her birth certificate or concerning her social situation after the morphological change of sex, these being precisely the factors which the majority took into consideration in arriving at their finding that there had been a violation of the said Article 8 (art. 8) (see paragraphs 59-63 of the judgment). 1.3. In my opinion, what Miss B. requested from the French courts was a "correction" of the alleged error as to sex and consequently the rectification of the civil status register and the replacement of her male forename by a female forename, following a priordeclaration by the court that she was of female sex. Miss B., intending to marry a man, did not ask the Court to hold that there was a case of transsexualism, but that there had been a mistake in registering her sex, since, although a woman, she had been registered as a man. She did not submit any requests relating to possible rectification of the indication of her sex in her official identity documents consequent on rectification granted in accordance with the relevant legislation (see paragraph 22 of the judgment). 1.4. It seems necessary to point out that in systems with a civil status register, a person’s civil status constitutes the expression of his legal personality and his position in society, and all the statements on his birth certificate, including that of sex, have an effect which goes beyond the individual interest, as they may affect the rights of others. In these systems civil status is a concept of public order and documents relating to such status are presumed to be correct. It follows that a change to a birth certificate can take place only in cases and according to procedures defined by law. Legal certainty thus requires that rectifications of civil status documents be regulated by law and controlled by the courts. In French law, as the judgments given in the present case point out (see paragraphs 13-15 and 17 of the judgment), persons cannot dispose of their civil status at will. Articles 57 and 99 of the Civil Code (see paragraph 22 of the judgment) define the contents of birth certificates and the conditions for their rectification in the event of "error or omission", and it is for the courts to rule on a case by case basis on applications for rectification. The long list of decisions given by the French courts (see paragraph 23 of the judgment) and accepted by the public authorities in fact shows that it is possible in French law for statements relating to sex in civil status registers to be amended. 1.5. In the present case the Libourne tribunal de grande instance dismissed Miss B.’s application since, according to the experts’ report, "it [was] thus apparent that the change of sex was intentionally brought about by artificial processes" and [B.’s] application "[could not] be granted without attacking the principle of the inalienability of the status of individuals" (see paragraph 14 of the judgment). The Bordeaux Court of Appeal, upholding that judgment, gave as reasons for its decision (see paragraph 15 of the judgment) that "his present state [was] not ‘the result of irreversible innate factors existing before the operation and of surgical intervention required by therapeutic necessities’". Also in that judgment, the Court of Appeal (see paragraph 17 of the Commission’s report) said on this point: "No form of psychological or psychiatric treatment has been attempted; the first doctor who prescribed hormone treatment did not conduct any protected observation and no guarantee of such observation was given before the surgical operation carried out abroad". It added that the medical treatment "voluntarily undergone by Mr [B.] ... on the contrary ... indicate[d] a deliberate intention on his part without any other treatment having been tried and without the operations having been necessitated by Mr [B.’s] biological development" (see paragraph 15 of the European Court’s judgment). In view of this finding by the court of second instance, the Court of Cassation considered that the decision had been justified in law and dismissed the applicant’s appeal. 1.6. Consequently, it follows from these judgments that the courts did not consider the applicant to be a "genuine transsexual", since the medical treatment had not been shown to be necessary and even after the surgical operation she had undergone in Morocco "Norbert [B.] continued to show the characteristics of a person of male sex" (see paragraph 17 of the judgment). This conclusion, however, fell within the power to assess the evidence which belongs in principle to the national courts, according to the Court’s constant case-law (see inter alia the Unterpertinger v. Austria judgment of 24 November 1986, Series A no. 110, p. 15, para. 33, and the Barberà, Messegué and Jabardo v. Spain judgment of 6 December 1988, Series A no. 146, p. 31, para. 68). It should be noted in this connection that the applicant did not challenge the medical report submitted to the courts which decided on her application. 1.7. I am consequently unable to follow the conclusions of the majority in paragraph 55 of the judgment. Rectification of the indication of sex, like any rectification of a civil status document, under the aforementioned Article 99 of the French Civil Code, is a decision by a court which finds that there has been an error or an omission in the indication of sex as alleged by the applicant, with all the legal consequences - notably in civil law - of such a declaration both for the applicant and for third parties and society in general. Under the principles which govern civil proceedings, it is not possible, as the majority appear to suggest, to effect "the insertion, once judgment had been given, in Miss B.’s birth certificate, in some form or other, of an annotation whose purpose [is] not, strictly speaking, to correct an actual initial error but to bring the document up to date so as to reflect the applicant’s present position", where such an error has not been proved in the proceedings or where such an "omission" - the finding of the "new sexual identity" - has not been requested by the applicant, in taking into account ex officio "the irreversible abandonment of the external marks of Miss B.’s original sex" or again "the applicant’s manifest determination" to have an operation without the guarantees of success required by the best medical practice. 1.8. In my opinion the majority, instead of keeping strictly to the specific terms of the applicant’s request to the French trial courts and the legal grounds for refusal set out in the judgments, based on the legal impossibility of allowing rectification of the statement of sex without proof of the existence of an error and of the fact that the change was not solely the result of the deliberate intention of the applicant but of an irreversible necessity according to the medical report, applied themselves rather to the abstract question of the position of transsexuals in France, thus departing from the Court’s traditional method. 2.1. Further, according to the Court’s case-law as stated in the two previous judgments relating to transsexuals in the United Kingdom, the Rees v. the United Kingdom judgment of 17 October 1986 (Series A no. 106) and the Cossey v. the United Kingdom judgment of 27 September 1990 (Series A no. 184) - the latter given in a case which was virtually identical to the present one -, the question of the amendment of the birth certificates of transsexuals who wish to have an indication of sex noted in the civil status register is a question for the national authorities and their legislative or judicial powers, who are best in a position to respond to the needs or hopes of each society and "the requirements of the situation pertaining there in determining what measures to adopt" (see the above-mentioned Rees judgment, p. 17, para. 42 (a)). It is for them to regulate the conditions, extent and consequences of rectification of civil status documents in order to achieve a fair balance between the interests of transsexuals in having their membership of the other sex which they feel they belong to recognised by society, and the general interest in preserving the inalienability of that statement of fact on the birth certificate - morphological or biological sex - in order to preserve the rights of others, in particular if the transsexual is married or wishes to marry or if he has children or may have children or wishes to adopt some. 2.2. Indeed, the Court has already said (see the Abdulaziz, Cabales and Balkandali v. the United Kingdom judgment of 28 May 1985, Series A no. 94, pp. 33-34, para. 67) that "although the essential object of Article 8 (art. 8) is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations". However, given that "the notion of ‘respect’" for private life "is not clear-cut", especially as far as such positive obligations are concerned (ibid., pp. 33-34, para. 67), these obligations are subject to the State’s margin of appreciation and "having regard to the diversity of the practices followed and the situations obtaining in the Contracting States, the notion’s requirements will vary considerably from case to case" (see the above-mentioned Rees judgment, p. 15, para. 37). The Court also stated in the Rees judgment (ibid., p. 14, para. 35) and the Cossey judgment (ibid., p. 15, para. 36) that the refusal to amend the register of births could not be regarded as an interference with a person’s private life within the meaning of Article 8 (art. 8) of the Convention. What the applicant was arguing was not that the State should abstain from acting but rather that it should take steps to modify its existing system, and the question whether an effective respect for the transsexual’s private life imposed a positive obligation on the State in this regard was to be answered by considering the "fair balance that has to be struck between the general interest of the community and the interests of the individual". In reaching its conclusion that no such obligation was incumbent on the respondent State, the Court took account inter alia of the fact that "the requirement of striking a fair balance could not give rise to any direct obligation on the respondent State to alter the very basis of its system for the registration of births". 2.3. When giving these decisions the Court noted (see the Cossey judgment, ibid., p. 17, para. 42, and the Rees judgment, ibid., p. 19, para. 47) "the seriousness of the problems facing transsexuals and the distress they suffer" and took note of the resolution adopted by the European Parliament on 12 September 1989 and of Recommendation 1117 (1989) of the Parliamentary Assembly of the Council of Europe of 29 September 1989, both of which sought to encourage the harmonisation of laws and practices in this field, and pointed out that "the need for appropriate legal measures concerning transsexuals should be kept under review having regard particularly to scientific and societal developments" (see the Rees judgment, ibid., pp. 17 and 18, paras. 42 and 43, and the Cossey judgment, ibid., p. 16, para. 40). 2.4. But as the majority point out (see paragraphs 47 and 48 of the judgment), no scientific or societal development has taken place within the last sixteen months which would justify changing this case-law. Despite the efforts of the majority to distinguish the cases so as to maintain the Court’s case-law, the circumstances of the present case are not so different from those of the Rees and Cossey cases as to explain a finding of a violation here. 2.5. Nor can the question be resolved by "incidental adjustments to the existing system" (see the Rees judgment, ibid., pp. 17-18, para. 42) such as a rectification of the birth certificate in order to acknowledge the "new sexual identity" of post-operative transsexuals or their "social sex", since the French legal system does not permit this. The courts acting in the exercise of their judicial power cannot go beyond an interpretation of the law applicable to the facts of the case as proved by their assessment of the evidence submitted to them. They cannot order forms of rectification other than those provided for by law since doing otherwise would require "the very basis" of the civil status system to be altered, in much the same way that the United Kingdom would have been required to change its system of registration of births (see the above-mentioned Rees judgment, pp. 16-18, paras. 39, 40 and 42 (a), and the above-mentioned Cossey judgment, p. 15, para. 38 (a)), which justified the findings in those two cases that Article 8 (art. 8) had not been violated by the United Kingdom. 3.1. Finally, the facts of the present case, as regards the position of transsexuals in France, lead us to the same conclusion, namely that there has not been a violation by France of the right to respect for the private life of true transsexuals. They demonstrate that in France: (1) "no legal formality or authorisation is required for hormone treatment or surgery intended to give transsexuals the external features of the sex they wish to have recognised" (see paragraph 18 of the judgment); (2) "it has been possible for surgical operations to take place in France since 1979 subject to medical control" (ibid.); (3) "the costs of some of these operations are borne by the social security service" (ibid.), according to the Government, where a medical commission has studied the person in question for at least two years and the operation takes place in a public hospital; (4) "as a general rule, sex is not indicated on administrative documents issued to natural persons, such as traditional national identity cards, classic style passports, driving licences, voting cards, certificates of nationality, etc." (see paragraph 25 of the judgment); and (5), as I have pointed out above, "a large number of French tribunaux de grande instance and courts of appeal have granted applications for amendment of entries in civil status registers relating to sex and forenames" (see paragraph 23 of the judgment). 3.2. Thus there are medical and legal controls over changes of sex in France, but such precautions cannot, however, be criticised either from a legal point of view - having regard to the present civil status system in France - or from a medical point of view - bearing in mind the very serious risks involved in lifelong hormonal medical treatment and implantations and the irreversibility of removal of the sexual organs. On the contrary, in my opinion, they deserve praise for avoiding mistakes with irreversible consequences, hasty decisions or surgical operations which are of doubtful necessity or even inadvisable, even for those who genuinely believe themselves to be transsexuals. This attitude also serves to discourage legal claims for rectification of civil status based on the fait accompli of an operation which has been performed without verifying its irreversible necessity or without medical guarantees of success, since the medical expert report must give an opinion on its therapeutic necessity. 4. As I have concluded that there was no violation of the Convention in the present case, I do not consider it logical to join in the conclusion of the majority that the respondent State is to pay the applicant just satisfaction. CONCURRING OPINION OF JUDGE WALSH 1. I agree that there has been a breach of Article 8 (art. 8) of the Convention in the present case. My opinion is founded only upon the reasons set out hereinafter. 2. I am satisfied that the judgments of the Court in the case of Rees (Series A no. 106) and in the case of Cossey (Series A no. 184) respectively were correct in principle and that there is nothing in the present case to warrant a departure from them. 3. The evidence establishes that the applicant’s birth certificate correctly described the applicant as being of the male sex and the fact that the applicant was and is biologically of the male sex is established. There is no suggestion of any error having been made as to that fact. Therefore to require that entry to be altered to record that the applicant was born a member of the biological female sex would be to falsify a correct historical record and to substitute it with an untruth. 4. An area of life in which the biological sex of a person is of supreme vital importance is that of marriage. The Court has already decided in the Cossey case that the marriage referred to in Article 12 (art. 12) of the Convention is confined to the intermarriage of two persons one of whom is biologically of the female sex, thus reflecting what has been universally accepted throughout human history. The fact that some States may now in their national laws permit and recognise a legal relationship or partnership between persons of the same biological sex as having the same legal incidents as a marriage and even using the word "marriage" to describe such arrangement cannot by so doing make it the same as a marriage between persons of opposing biological sexes as envisaged by Article 12 (art. 12) of the Convention. If a parent of either sex undergoes a so-called "sex change" operation to acquire the appearance, anatomical or otherwise, of a person of the other biological sex it would be the height of absurdity to describe a father as having become his own child’s mother or aunt as it would be to describe a mother as having become her own child’s father or uncle. 5. I am of the opinion that the respondent State could not reasonably be expected to alter its law in such a way as to obliterate the truth of a national record or to keep forever concealed for all purposes and from all persons and bodies without qualification the true biological sex of a person. In my opinion to do so could well lead to a breach of Articles 8 and 12 (art. 8, art. 12) of the Convention. It could be very unfortunate if the law permitted a situation in which a person wishing to marry a person of the other biological sex could not, when a doubt arises, be satisfied as to the true biological sex of the other party save by the admission of that other party. Therefore any alleged violation of Article 8 (art. 8) in this sphere must be examined in the context of not totally concealing or falsifying a record of historical fact. 6. Subject to the above-mentioned qualification it now falls to consider in what respect the respondent State can be thought to have been in violation of Article 8 (art. 8) of the Convention. The applicant is psychologically self-identified with the female sex and apparently that condition has existed since childhood and has grown more pronounced with age. It ultimately led the applicant to undergo "sex-change" surgery necessitated by psychological imperatives rather than medical ones. In the result the applicant adopted a new "gender identity" in that the new identity is to all outward appearances a female identity. The applicant has sought to have this new identity respected in French law as an essential element of the privacy of her new life style free from interference by the respondent State and its agencies and public authorities. I do not consider that the adoption of a female first name from within the range of first names permitted by French law with a view to establishing the adopted identity is an unreasonable request. It is clear that the withholding of permission for this change has proved to be an interference with the privacy of the adopted life style. Similarly, obligatory identification documents which contradict the adopted identity also constitute an interference. The respondent State has not shown any valid justification within the terms of Article 8 para. 2 (art. 8-2) of the Convention. Admittedly complying with the applicant’s requests could cause considerable administrative inconvenience but that could not be a justification for the respondent’s refusal. The civil status register is conclusive as to the fact that the information therein was furnished to the appropriate officer but is not conclusive as to the correctness or the truth of the information so supplied. Thus the civil status register cannot be taken as conclusive proof of the biological sex of the person so registered although it could be regarded as prima facie evidence to stand until displaced. It is for the national authorities to devise the legal measures necessary to achieve the objectives of providing identity documents consistent with the adopted identity without revealing the true biological sex of the person concerned if in fact it is not the same as that indicated in the documentation while at the same time without obliterating from the national records information which tends to establish the true biological sex of a person and that such information should not be revealed save where there is a real necessity to do so. SEPARATE OPINION OF JUDGE MARTENS 1. Since I fully maintain the views expounded in my dissenting opinion in the Cossey case, I acclaim the Court’s decision, but cannot subscribe to all its arguments. I do not think it necessary to say more. 2. I would have been even more content if the Court had accepted the Commission’s plea to abandon the De Wilde, Ooms and Versyp doctrine. On this issue I also maintain my former opinion (see my separate opinion in the Brozicek case). I am glad to note that several of my colleagues now share that opinion. [*] Note by the Registrar: The case is numbered 57/1990/248/319. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission. [*] Note by the Registrar: as amended by Protocol No. 8 (P8), which came into force on 1 January 1990. [*] Note by the Registrar: opinion of the Commission in the case of Van Oosterwijck v. Belgium, Series B no. 36, p. 26, para. 52. [*] Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 232-C of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.

THIRD SECTION CASE OF NATSVLISHVILI AND TOGONIDZE v. GEORGIA (Application no. 9043/05) JUDGMENT STRASBOURG 29 April 2014 FINAL 08/09/2014 This judgment has become final under Article 44 § 2 of the Convention. In the case of Natsvlishvili and Togonidze v. Georgia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Alvina Gyulumyan,Corneliu Bîrsan,Ján Šikuta,Nona Tsotsoria,Kristina Pardalos,Johannes Silvis, judges,and Santiago Quesada, Section Registrar, Having deliberated in private on 15 October 2013 and 3 April 2014, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case originated in an application (no. 9043/05) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Georgian nationals, Mr Amiran Natsvlishvili (“the first applicant”) and Mrs Rusudan Togonidze (“the second applicant”), on 9 March 2005. 2. The applicants, who had been granted legal aid for the purposes of an oral hearing on the merits (see paragraphs 5 and 6 below), were represented by Ms M. Gioshvili, Ms E. Fileeva and Mr K. Koroteev, lawyers practising in Georgia and the Russian Federation. The Georgian Government (“the Government”) were successively represented by their Agents, Mr M. Kekenadze, Mr D. Tomadze and Mr L. Meskhoradze, of the Ministry of Justice. 3. The first applicant alleged, in particular, that the plea-bargaining process, as provided for by domestic law at the material time and applied in his case, had been an abuse of process and unfair, in breach of Article 6 § 1 of the Convention and Article 2 of Protocol No. 7. He further alleged that the publicity given to his arrest had breached his right to be presumed innocent under Article 6 § 2 of the Convention. In addition, both applicants alleged that the State had hindered them in the exercise of their right of individual petition, contrary to Article 34 of the Convention, and that the financial penalties imposed upon them as part of the plea‑bargaining process had breached their property rights under Article 1 of Protocol No. 1. 4. The applicants and the Government each filed observations on the admissibility and merits of the application. 5. By a final decision of 25 June 2013, the Court declared the application admissible in part (Article 29 § 1 in fine of the Convention). As to the further procedure, the Court decided to obtain the parties’ oral submissions on the merits (Rule 59 § 3 of the Rules of Court). 6. A hearing on the merits took place in public in the Human Rights Building, Strasbourg, on 15 October 2013 (Rule 59 § 3). There appeared before the Court: (a) for the GovernmentMr G. Lortkipanidze, Deputy Minister of Justice, MrA. Baramidze, Deputy Minister of Justice,Mr L. Meskhoradze, Agent,MsSh. Mezurnishvili, MsN. Mezvrishvili, Advisers; (b) for the applicantsMsM. Gioshvili, MsE. Fileeva,Mr K. Koroteev, Counsel. The Court heard addresses by Mr Meskhoradze, Ms Gioshvili, Ms Fileeva and Mr Koroteev. 7. On 1 February 2014 the Court changed the composition of its Sections, but the present application was retained by the Third Section. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 8. The first and second applicants were born in 1950 and 1953 and currently live in Moscow, the Russian Federation, and Kutaisi, Georgia, respectively. They are husband and wife. A. Background 9. The first applicant was the deputy mayor of Kutaisi, the second largest city in Georgia, from 1993 to 1995 and the managing director of the company operating the Kutaisi Automotive Plant (“the factory”), one of the most important public companies in the country, from 1995 to 2000. On 29 December 2000 he was appointed chairman of the factory’s supervisory committee at the shareholders’ general meeting. 10. The first applicant owned 12.95% of the shares through purchases made in 1998 and 2002 and was the principal shareholder in the factory after the State (78.61% of the shares). The second applicant owned 2.6% of the shares, purchased in 2002, so together the couple owned a total of 15.55% of the shares. 11. The first applicant was kidnapped in December 2002. After being severely ill-treated by his abductors, he was released in exchange for a large ransom paid by his family. B. Criminal proceedings against the first applicant 12. On 12 March 2004 the first applicant was accused of illegally reducing the share capital of the factory, for which he had first been responsible as managing director and then as chairman of the supervisory committee. He was charged with making fictitious sales, transfers and write‑offs, and spending the proceeds without regard to the company’s interests (Article 182 of the Criminal Code – “abuse of authority by embezzling and misappropriating the property of others”). 13. On 15 March 2004 the police and the Kutaisi prosecutor went to the first applicant’s workplace to arrest him. The arrest was filmed by journalists and broadcast on a local private television station the same night. The broadcast consisted of an interview with the prosecutor following footage showing the first applicant’s arrest and escort down a flight of stairs, with his arms held by policemen and surrounded by journalists. The prosecutor made two comments in respect of the matter: that the documents seized during a search of the first applicant’s office “were relevant to an ongoing criminal investigation and would be assessed and analysed”, and that the charge which the first applicant faced carried up to twelve years’ imprisonment. 14. The prosecutor’s interview was followed by that of the Governor of the Region. The Governor, without making any reference to the first applicant or the criminal proceedings against him, declared, among other things, that the State, which was “experiencing difficult times [due to a political crisis], would not stray from the path that it had chosen in pursuit of the identification of those who had devoured public money ... which was exactly why pensions and salaries had not been able to be paid on time”. 15. On 16 March 2004 the first applicant appointed a lawyer to protect his interests. 16. When questioned for the first time as a suspect on 17 March 2004, the first applicant, assisted by his lawyer, protested his innocence and exercised his right to silence. 17. On the same day the prosecuting authority brought an application before the Kutaisi City Court to have the first applicant detained pending trial arguing that the first applicant, who was accused of a crime of a serious nature, might try to evade justice, prevent the discovery of the truth and pursue his criminal activities. Ruling on this request on an unspecified date, the City Court decided to place the first applicant in detention for three months. Applying Article 243 of the Code of Criminal Procedure (“the CCP”), the first applicant challenged that decision before the Kutaisi Regional Court, which dismissed his appeal on an unspecified date. 18. On 25 March 2004 the first applicant sent a letter to the prosecuting authority, which read as follows: “Since I am not indifferent to the future of the automobile factory and consider it possible to settle the problems [I am having] with the State, I express my readiness to forfeit the shares in the factory which are currently in my and my wife’s possession to the State.” 19. On 14 June 2004 the first applicant’s detention pending trial was extended by the Kutaisi Regional Court until 15 July 2004, and in July 2004 it was extended until 15 September 2004. 20. During the first four months of his detention the first applicant was detained in the same cell as the person charged with his kidnapping in 2002 (see paragraph 11 above) and another person serving a sentence for murder. After the Public Defender’s Office complained of that fact on the ground that it put the applicant’s physical and psychological well-being at risk, the prison authorities transferred the applicant to another cell. 21. On 1 August 2004 the first applicant and his lawyer were given access to the criminal case materials. On 6 August 2004 the first applicant appointed a second lawyer to protect his interests in the proceedings. 22. On 6 September 2004 the investigation was terminated, and the first applicant was indicted on the aforementioned charges. Having acquainted himself, with the assistance of his two lawyers, with the case file in its entirety, he again protested his innocence but confirmed his intention to cooperate with the investigation. 23. On the same day both applicants transferred their shares free of charge, representing an overall total of 15.55% of the factory’s share capital, to the State. 24. According to a written statement in the case file from Mr G.T., a worker in the factory, on 6 September 2004 he and nine other employees of the factory transferred their shares to the State ex gratia, at the request of the prosecuting authority, in connection with the criminal proceedings against the first applicant and in exchange for the latter’s release from detention. The case file contains a copy of the relevant ex gratia agreements dated 6 September 2004. 25. The file also contains a witness statement by Mrs M.I., the second applicant’s sister-in-law, that the public prosecutor had also demanded that the first applicant’s family pay 50,000 laris (GEL) (about 21,000 euros (EUR)) to the Fund for the Development of State Bodies ensuring the Protection of the Law (“the Development Fund”) in order to conclude a “procedural agreement” releasing the first applicant from detention. Thus, the public prosecutor had supplied them with the documents necessary for the transfer, adding that the first applicant’s name must not appear as the one paying the money. The public prosecutor insisted that the money not be paid to the Development Fund directly by the applicants. Mrs M.I. therefore agreed to pay the required amount in her own name. 26. As confirmed by the relevant bank-transfer receipt, that payment was made on 8 September 2004, with Mrs M.I.’s name duly appearing on the document as the source of the transfer. 27. On the following day, 9 September 2004, the first applicant filed a written statement with the public prosecutor, requesting him to arrange a “procedural agreement” (hereinafter a “plea bargain”), which procedure had been introduced into the Georgian judicial system in February 2004. The applicant specified that, whilst considering himself to be innocent, he was willing to reach an agreement as regards the sentence and to repair the damage caused to the State; he stated that he would pay GEL 35,000 (EUR 14,700) to the State budget in that connection. He added that he fully understood the contents of the agreement. 28. On the same day the public prosecutor of Kutaisi offered and the first applicant accepted a plea bargain regarding sentence (Article 679 § 2 of the CCP). The written record of the plea agreement mentioned that, whilst the applicant refused to confess to the charges, he had “actively cooperated with the investigation by voluntarily paying compensation in the amount of GEL 4,201,663 (approximately EUR 1,765,000) for the damage caused by his criminal activity by returning 22.5% of the shares in the factory to the State”. The prosecutor further noted that, notwithstanding the fact that the applicant was charged with a particularly serious offence liable to a term of imprisonment of six to twelve years, it was still possible, having due regard to the full compensation of the damage and in the interest of the efficient use of State resources, to offer him a plea bargain. Notably, the prosecutor promised that he would request the trial court to convict the applicant without an examination of the merits, seeking a reduced sentence in the form of a GEL 35,000 (EUR 14,700) fine. It was explained to the applicant that the proposed plea bargain would not exempt him from civil liability. The first applicant stated that he fully understood the content of the bargain and was ready to accept it and that his decision was not the result of any duress, pressure or any kind of undue promise. The record of the plea agreement was duly signed by the prosecutor, the applicant and one of his two lawyers. 29. Also on the same day the public prosecutor filed a brief with the Kutaisi City Court, requesting approval of the aforementioned plea bargain consisting of no examination of the merits of the case, of finding the first applicant guilty of the charges brought against him and of reducing the sentence to which the offences were liable by fining the accused GEL 35,000 (EUR 14,700). It was mentioned in the prosecutorial brief that it was accompanied by the written record of the plea agreement and twelve volumes of the criminal case materials. 30. Also on the same day Mrs M.I. effected a bank transfer to the State in payment of the fine of GEL 35,000 (EUR 14,700) as per the above-mentioned plea bargain between the first applicant and the public prosecutor. 31. At an oral hearing on 10 September 2004, the Kutaisi City Court, sitting in a single-judge formation, examined the prosecutor’s request of 9 September 2004. As disclosed by the record of the hearing, the judge explained to the first applicant, who was assisted by one of the two lawyers who had countersigned the plea bargain (see paragraph 28 above), his rights under Article 679-3 of the CCP. In reply, the applicant acknowledged that he was well aware of his rights and that he had agreed to the bargain voluntarily, without having being subjected to any kind of undue pressure during the negotiations with the prosecutor. That was confirmed by the lawyer as well. The first applicant and his lawyer then asked the judge to endorse the plea bargain, as submitted by the prosecutor, confirming that they fully accepted its consequences. The lawyer added that he had assisted in the plea-bargaining negotiations between his client and the prosecution, that it was his client who had insisted on reaching a settlement, and that he, as a lawyer, had provided all the necessary counselling to the applicant. 32. Relying on the documentary evidence and the testimony of various witnesses acquired during the investigative stage, the Kutaisi Court found that the charges brought against the first applicant were well-founded. The court also noted that, when he was charged on 6 September 2004 with crimes under Article 182 §§ 2 (a), (b) and (c) and 3 (b) of the Criminal Code, the applicant “did not plead guilty and exercised his right to silence. However, having actively cooperated with the investigation, he had voluntarily repaired the damage of GEL 4,201,663 [EUR 1,765,000] caused by his criminal activity by returning 22.5% of the shares in the factory to the State”. 33. The City Court further held that, following the judicial examination, it reached the conclusion that the plea bargain had been concluded in accordance with the law, that the first applicant had signed it in full knowledge of the facts and that it was not the result of any duress, pressure or any kind of promise which went beyond what was permitted in plea bargaining. The court thus sanctioned the agreement by declaring the first applicant guilty of the charges brought against him and sentencing him to a GEL 35,000 (EUR 14,700) fine. The first applicant was then immediately released from the courtroom. 34. As mentioned in its operative part, the Kutaisi City Court’s decision of 10 September 2004 was final and not subject to appeal. A request could be made to have the decision quashed and the case reopened though, if newly discovered circumstances justified such a course of action. 35. According to the case file, after the termination of the criminal proceedings and his consequent release from detention, the first applicant left Georgia and has since been residing in Moscow, Russia. C. The proceedings before the Court 36. After notice of the application had been given to the respondent Government on 21 September 2006 and the parties had exchanged their observations, the applicants complained to the Court, on 12 November 2007, that the General Prosecutor’s Office (“the GPO”) was continuing to exert pressure on them, this time with the aim of having them withdraw their application from the Court. 37. In support of that assertion, the applicants submitted a written statement given by their daughter, Ms A. Natsvlishvili, dated 6 November 2007. 38. According to that statement, after having been told by her parents that pressure was being brought to bear on them, in September 2004 Ms Natsvlishvili, who was a student at the Central European University in Budapest at the time, decided to approach an acquaintance of hers who was working at the GPO, Ms T.B. Subsequently, Ms Natsvlishvili exchanged several e-mails with her acquaintance in which the latter, claiming to act on behalf of the GPO, expressed that authority’s position on the applicants’ case. The case file contains a copy of the relevant e-mail exchange. 39. In the e-mail exchange, Ms Natsvlishvili and Ms T.B. addressed each other on friendly terms, using shortened, pet names and familiar instead of formal forms of address. 40. Ms Natsvlishvili was the first to contact Ms T.B., on 14 September 2006, asking her, as a friend and an experienced lawyer, to give her some advice about her master’s thesis and a forthcoming examination in law. 41. On 29 November 2006 Ms T.B. advised the applicants’ daughter, whom she considered to be “a friend”, that she had been “personally” working on her father’s case and thus possessed important information emanating from the Prosecutor General. Inviting the applicants’ daughter to express her parents’ position on the matter, Ms T.B. promised to share her hierarchical superiors’ views with them. 42. On 11 December 2006 Ms T.B. informed the applicants’ daughter that the GPO would be ready to reopen the first applicant’s criminal case and then terminate it again, this time in his favour, and to return the GEL 35,000 (EUR 14,700) which had been paid by him as a fine. Ms T.B. encouraged the applicants to think about that proposal quickly and to accept it, otherwise, she stated, “the prosecution authority would defend its position in Strasbourg and might even unilaterally annul the plea bargain and reopen the criminal proceedings against the first applicant”. 43. On 16 December 2006 Ms Natsvlishvili informed Ms T.B. that her father was ready to reach a friendly settlement, as provided for “by the Convention” and under the scrutiny of the Court. Ms Natsvlishvili then asked a number of procedural questions and also enquired whether it was possible, having due regard to the substantial pecuniary and non-pecuniary damage which had been inflicted on her family by the State, to review the conditions of the proposed settlement. 44. On the same date, 16 December 2006, Ms T.B. replied that “her personal involvement in the case was a guarantee that the applicants’ family would not find itself in an inauspicious situation again”. Ms T.B. then stated that the first applicant should file an application with the GPO, complaining that the plea bargain in question had been reached without a full consideration of his interests. The GPO would then treat that application as a request for the reopening of the case on the basis of newly discovered circumstances. Ms T.B. assured the applicants’ daughter that, after the reopening of the case, the first applicant would, as a matter of fact, be rehabilitated by having obtained the deletion of the conviction from his criminal record. 45. Ms T.B. then stated that the State would be ready to return the money which had been paid by the first applicant as a fine and the shares in the factory forfeited by the second applicant; she explained that the first applicant’s shares could not be returned as they had already been assigned to a third party. The GPO employee also assured Ms Natsvlishvili that the first applicant would become eligible to return to Georgia and to start business afresh there, in which entrepreneurial activity the prosecution authority would even assist him. Ms T.B. then continued: “We all know that errors have been committed, but it has become a particularly vital issue, in the interests of the country, to set aside personal experience and trauma now, notwithstanding the painfulness of those [experiences]. I know that this is difficult, but if you can manage it, I am confident that after years have passed you would then be in a position to tell yourself that you were successful in differentiating Georgia, as your own country, from individual State agents, and to tell yourself that you made your own small sacrifice for your country.” 46. Ms T.B. specified that “they”, the GPO, were not telling the applicants to first withdraw their application from the Court and to settle the issue at the domestic level afterwards. On the contrary, the State was ready to start working on the settlement of the issue at the domestic level first. However, Ms T.B. then reminded the applicants’ daughter that “they had only a month left for [filing observations with] Strasbourg”. 47. On an unspecified date, but apparently subsequent to the above‑mentioned e-mail exchange, Ms T.B. informed Ms Natsvlishvili that the State would be ready to pay to the first applicant, in compensation, GEL 50,000 (EUR 22,000) and to take procedural measures to have the conviction deleted from his criminal record. She specified as follows: “As regards the issue of rehabilitation and compensation, the decision will apparently belong, according to the applicable rules of jurisdiction, to the Kutaisi Court of Appeal. It will therefore be indicated in this court’s decision that, given the fact that the remainder of [the applicants’] shares have been assigned and that the factory has become indebted, it is factually impossible to return the shares in their entirety, which would then lead to the award of GEL 50,000 [(EUR 22,000)] in pecuniary and non-pecuniary damages.” 48. Ms T.B. then assured the applicants’ daughter that they could trust the GPO, as, in any event, should there be any improper conduct by the authorities, the applicants could always then complain to the Court about the alleged hindrance of the right of individual petition under Article 34 of the Convention, which allegation would be of particular harm for the respondent State’s international image. Ms T.B. mentioned, lastly, that the State might be ready to increase the amount of compensation to a maximum of GEL 85,000 (EUR 35,700). II. RELEVANT DOMESTIC LAW AND INTERNATIONAL DOCUMENTS A. The Code of Criminal Procedure (“the CCP”) 49. The relevant provisions concerning “procedural agreements” (“საპროცესო შეთანხმება” in Georgian, saprotseso shetankhmeba), or plea bargaining, were introduced into the CCP on 13 February 2004 and amended for the first time on 24 June 2004, and were thus applicable at the material time. They read as follows: Article 15 “A procedural agreement may be reached in accordance with the principle of the independence of the judiciary. A procedural agreement contributes to a faster and more efficient justice system.” Article 679-1 “1. A court may deliver a judgment based on a procedural agreement without examining the merits of the case before it. The procedural agreement is based on an agreement regarding the responsibility of the accused or the sentence. It is a prerogative of the prosecution to propose a procedural agreement. 2. When an agreement is reached regarding sentence, the accused does not plead guilty but reaches an agreement with the prosecutor regarding sentence or lack of sentence and/or agrees to cooperate with the investigation. 3. When an agreement is reached regarding responsibility, the accused pleads guilty and/or cooperates with the investigation. 4. A procedural agreement is concluded with the hierarchically superior prosecutor’s consent. 5. On the basis of the procedural agreement, the prosecutor may request a reduction of sentence for the defendant, or decide to lessen some of the charges brought against him or abandon a number of them on condition that the accused plead guilty on all counts. 6. Before deciding on a reduction of sentence or lessening of charges, the prosecutor must consider (a) the severity of the sentence to which the accused is liable, as well as the seriousness of the illegality of the acts and the guilt of the accused; (b) the use of the State’s resources in the way that most favours the general interest. ... 7. A procedural agreement shall not be reached without the involvement of a defence lawyer and without the prior consent of the accused as to the contents of the agreement. 8. The procedural agreement is reputed null and void if it subsequently emerges that the information and evidence supplied by the accused for the investigation ... is not reliable and does not contribute to a real possibility of identifying those responsible. The decision to nullify a procedural agreement is made by a court. 9. In particular cases, in which the cooperation of the accused in an investigation has led to the discovery of a particularly serious crime or the criminal activity of a public official, and where the accused has directly assisted in making an investigation feasible, the public prosecutor may ask the court for the accused to be acquitted of criminal responsibility. ... 11. When concluding the procedural agreement the prosecutor must inform the accused that the agreement does not clear him of civil liability. In special circumstances, the public prosecutor or deputy public prosecutor may, by a reasoned decision, clear the accused of civil liability. In these circumstances, liability will fall on the State.” Article 679-2 “... 2. It must be confirmed, in a written declaration signed by the accused or his legal representative and his lawyer, that, having benefited from legal advice, the accused gave his consent freely to the judicial ruling without examination of the merits of his case. The accused must fully understand the contents of the brief that the prosecutor will submit to the court, as well as the legal consequences of the decision that may be delivered. 3. Once the accused and the prosecutor have reached a procedural agreement, the prosecutor must compose a brief in which he sets out the contents of the agreement. The brief is then signed by the prosecutor, the accused’s lawyer and the accused. 4. The content of the brief referred to in paragraph 3 of the present Article is confidential and can only be consulted by the signatories and the court.” Article 679-3 “1. The procedural agreement must be in written form and must be approved by a court during a public hearing, unless compelling reasons call for a hearing in camera. The court’s decision must reflect the procedural agreement. The court must ensure that the agreement was reached without violence and intimidation and without deception or illegal promises. The court must also ensure that the accused consented freely and was in a position to receive qualified legal assistance. 2. Before approving a procedural agreement, the court must ensure that (a) the accused fully understands the nature of the crime with which he is charged; (b) the accused fully understands the sentence liable to be incurred for the crime to which he admits; (c) the accused is aware of all the legal requirements relating to an admission of guilt in the context of a procedural agreement; (d) the accused fully understands that the court is under no obligation to accept a brief by the prosecution which, based on the procedural agreement, recommends the mitigation or absolute discharge of the sentence; (e) the accused understands that he has the following constitutional rights: – the right to a defence; – the right to refuse to enter into the agreement stating his admission of guilt; – the right to have the merits of his case examined. (f) the procedural agreement is not the result of duress, intimidation or a promise which goes beyond what is permitted in such an agreement; (g) the accused does not contest the facts on which the agreement containing his admission of guilt is based. 3. The court shall make its decision in accordance with the law and is under no obligation to sanction the agreement between the accused and the prosecutor.” Article 679-4 “1. In situations envisaged in the previous Chapter, the court may deliver either a judgment [endorsing the plea bargain] without an examination on the merits or a decision remitting the case to the prosecutor for indictment. ... 3. The court must ensure, on the basis of the case file, that the charge is well founded, that the sentence proposed in the brief is fair and that the accused has freely pleaded guilty. 4. If the court agrees with the prosecutor’s factual and legal assessment of the case and considers that the recommended sentence is fair, it delivers a judgment within one month following receipt of the relevant brief of the prosecutor ... 5. If the court finds that the submitted evidence does not substantiate the charge or that the procedural agreement has been reached in breach of Article 679-1, it will remit the case to the prosecutor for indictment. 6. If the court considers that the sentence recommended by the prosecutor is too severe, it has the power to reduce it. 7. The accused has the right to refuse to enter into a procedural agreement which is based upon his admission of guilt at any point during the judicial proceedings before the court gives its ruling. This refusal does not have to have been agreed with his lawyer. Once the court has ruled, it is no longer possible to refuse to be bound by the procedural agreement.” Article 679-7 “... 2. No appeal lies against the judgment [envisaged in the previous Articles], which becomes enforceable upon delivery. 3. The judgment may be revised in accordance with the usual rules regarding new circumstances of fact or law.” 50. Following an amendment of 25 March 2005 to the CCP, the filing of a request with a court to have the proceedings terminated by a plea bargain was no longer the prosecutor’s prerogative. Such a request could also be filed by the accused (Article 679-1 § 1). Furthermore, the content of the prosecutor’s brief was no longer confidential (Article 679-2 § 4), barring the section containing the information that the accused had given during the investigation. The same amendment made it compulsory to have the hearing in which the court approved the procedural agreement recorded verbatim in the record of the proceedings (Article 679-3 § 4). 51. Furthermore, the amendment of 25 March 2005 made it compulsory for the court, when considering the lawfully filed plea bargain, to explain to the defendant that, should he raise a complaint about having been subjected to undue treatment by the prosecution during the preceding negotiations, such a complaint would not hinder the approval of the plea bargain (Article 679‑3 § 2 (1)). 52. Moreover, whilst before 25 March 2005 Article 679-6 had only provided for the possibility of an appeal against a judgment declaring the procedural agreement null and void, the amendment in question gave the accused the possibility of lodging an appeal with the higher court against the approval of the agreement within fifteen days of the ruling if “(a) the procedural agreement was concluded using deception; (b) the defence rights of the accused were restricted; (c) the procedural agreement was concluded by violence, force, threats or intimidation; (d) the court dealing with the case neglected its duties as laid out [in the above Articles].” 53. The amendment in question did not specify whether an appeal could lie, on the aforementioned grounds, against decisions prior to 25 March 2005. B. Council of Europe 1. Recommendation No. R (87) 18 of the Committee of Ministers to member States concerning the simplification of criminal justice 54. This Recommendation was adopted by the Committee of Ministers of the Council of Europe on 17 September 1987 and concerned simplified and summary procedures. A relevant excerpt reads as follows: “Having regard to the increase in the number of criminal cases referred to the courts, and particularly those carrying minor penalties, and to the problems caused by the length of criminal proceedings; Considering that delay in dealing with crimes brings criminal law into disrepute and affects the proper administration of justice; Considering that delays in the administration of criminal justice might be remedied, not only by the allocation of specific resources and the manner in which these resources are used, but also by a clearer definition of priorities for the conduct of crime policy, with regard to both form and substance, by: – resorting to the principle of discretionary prosecution; – making use of the following measures when dealing with minor and mass offences: – so-called summary procedures, – out-of-court settlements by authorities competent in criminal matters and other intervening authorities, as a possible alternative to prosecution, – so-called simplified procedures; – the simplification of ordinary judicial procedures; ...” 2. Honouring of Obligations and Commitments by Georgia, Report of the Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee), 21 December 2004 55. The relevant excerpts from the above-mentioned Report of the Monitoring Committee read as follows: “44. The co-rapporteurs also have some reservations about the growing tendency to transplant foreign, usually non-European legal models into Georgia’s domestic judicial system. This, for example is the case with the recent law on plea bargaining, which tries to imitate the United States legal practice, and to which the co-rapporteurs wish to return in the paragraph on the fight against corruption. ... 47. While it is clear that the authorities must take into account the public demands for immediate and decisive action in the most notorious cases of alleged corruption, the co-rapporteurs insist that popular expectations cannot justify violations of the rights of suspects and the failure to respect the basic principles of due criminal procedure. Arrests of some former officials accused of corruption were carried out in spectacular circumstances, often without warrants even in cases where there was no indication that suspects had the intention to flee. Human rights organisations reported several cases of excessive force, some arrests were filmed and images – degrading to the suspects’ human dignity – were widely broadcasted on several television channels. The respect for the principle of the presumption of innocence for some categories of suspects has yet to take hold in the new Georgia. 48. The ‘plea bargaining’ system, which makes it possible for some suspects to have their charges reduced or dropped in return for the payment of the money they have allegedly embezzled, is, to say the least, controversial. While plea bargaining is broadly used in the United States as well as in some Council of Europe member States, it usually relates to agreements by which accused persons agree to plea guilty (denounce other culprits, etc.) in return for a lesser charge. The Georgian plea bargaining goes a step further and introduces a financial component into the quotation – the accused are asked to repay a certain sum, which is an approximation of what they have allegedly stolen. In return the prosecutor agrees to reduce or drop the charges. The deal must finally be approved by a judge. 49. The co-rapporteurs consider that the specificities of the Georgian version of the plea-bargaining system, especially the introduction of the financial component and the seemingly arbitrary way in which it is applied to some cases and not to others, make this practice incompatible with Council of Europe standards. The system may not only create an impression that big thieves are allowed to buy an immunity from justice, but is also worrisome because the lack of legal and administrative checks and balances in the Georgian police, prosecutor services and courts create a risk of abuse. The co‑rapporteurs understand that the money obtained through ‘plea bargaining’ (some 30 million [United States dollars] so far) is very important and has helped to pay for pensions and other immediate needs, but they disagree with the notion suggested by the Prosecutor General that the efficiency of justice can be measured against the budgetary income it helps to generate. After years of a widespread corruption and systematic disregard for the rule of law Georgia needs justice which is efficient and equal for all. 50. Consequently, the rapporteurs call on the Georgian authorities to immediately and substantially review the present plea-bargaining procedure, in order to bring it in line with Council of Europe standards.” 3. Resolution 1415 (2005) of the Parliamentary Assembly of the Council of Europe 56. On 24 January 2005 the Parliamentary Assembly of the Council of Europe, having examined the above-mentioned Report of the Monitoring Committee, adopted Resolution 1415 (2005), the relevant excerpts from which read as follows: “9. The Assembly, after having consulted the Georgian authorities, ... asks Georgia to: ... a. critically review the present practice of the ‘plea bargaining’ system which – in its present form – on the one hand allows some alleged offenders to use the proceeds of their crimes to buy their way out of prison and, on the other, risks being applied arbitrarily, abusively and even for political reasons; ...” 4. Report by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe, following his visit to Georgia from 18 to 20 April 2011 57. The relevant part of the Report issued by the Commissioner for Human Rights on 30 June 2011, which concerned the plea-bargaining system in Georgia, reads as follows: “2. Plea-bargaining agreements 63. The Commissioner devoted special attention to the issue of plea-bargaining and its application in criminal cases. 64. Plea-bargaining now pervades the operation of criminal justice in Georgia. Its application has witnessed a steep increase since its introduction in 2004. The Chairman of the Supreme Court informed the Commissioner that in 2010 plea agreements were applied in around 80% of all criminal cases. 65. Indisputably, plea-bargaining has been a successful tool in combating corruption and organised crime. It also offers the important benefit of speedy adjudication of criminal cases, alleviating the workload of courts, prosecutors and lawyers. Further, it contributes to the reduction of sentences and as a result to the number of prisoners, which is crucial in the context of the high rate of prison overcrowding in Georgia. 66. The current plea-bargaining model, anchored in the new CPC, implies pleading guilty or agreement with the prosecutor on sentence (nolo contendere plea). It can be initiated either by the defendant or by the prosecutor. 67. A defence lawyer is mandatory in the context of plea-bargaining; however, the role of the lawyers in this process is limited. According to the information obtained by the Commissioner, most defendants are virtually certain that they will be sentenced, and lawyers, instead of working towards their clients’ acquittal, advise them to plea-bargain with the prosecutor to reduce the sentence to a minimum. This attitude is particularly common for violations that foresee imprisonment as a punishment. However, the Deputy Minister of Justice pointed out that the new Code of Criminal Procedure provisions which provide enhanced rights for the defence will also positively affect the defence’s position in the context of the plea agreement. 68. One concern of the Commissioner relates to the discretionary powers of the prosecutor during the negotiation of the plea agreement. For instance, the prosecutor can now ask for sentences even below the minimum sentence provided in the law, a competence many believe should rest with the judge. In addition, the law does not define the required degree of cooperation of a defendant with the prosecution, which leads to subjectivity and inconsistency of practice. 69. A plea agreement is approved by court decision. In the course of the review of the agreement by the court, the judge should make sure that the plea agreement is not concluded upon coercion and intimidation and should examine the evidence supporting the charges. The authorities assert that judicial oversight of the plea agreements is an important safeguard, stressing that the court can refuse to approve an agreement if charges are unsubstantiated or a violation is observed. However, lawyers maintain that in practice, the judge relies essentially on the evidence that the prosecutor presents when examining the terms of the agreement, and in the overwhelming majority of cases the judge agrees with the demands of the prosecutor. 70. One of the peculiarities of the Georgian plea-bargaining system relates to Article 42 of the Criminal Code, which provides that fines can be imposed in the context of plea agreements even for violations of the Criminal Code for which this form of punishment is not foreseen. According to Transparency International Georgia, in practice fines are paid in 99% of the cases, a figure which is disputed by the authorities. The process lacks transparency, due to the absence of clear criteria for determining fines. Human rights defenders in Tbilisi alleged that this is done based on an assessment of the defendant’s ability to pay; this has led to a perception that freedom can be bought. 71. Although the implementation of plea-bargaining in practice has given rise to concerns, the authorities maintain that sufficient safeguards exist in the system. The Deputy Minister of Justice did, however, acknowledge the need to increase transparency of the system and improve perceptions. 72. The law also provides for a full release from sentence in exceptional cases where there is effective cooperation with the investigation. While this possibility may certainly help in resolving criminal cases, instances of abuse have been reported in this context. ... 73. Concerns have also been raised that the system of plea-bargaining might make defendants more reluctant to complain against ill-treatment or excessive use of force by police, if this has been the case. The authorities have in the past acknowledged the problem and have introduced safeguards. However, the problem may lie not with the existence of system of plea-bargaining per se but rather, as already noted, the context in which it is being operated. In view of an almost certain conviction, for many defendants plea-bargaining is the only alternative to get a lighter sentence, and a defendant is less likely to bring a justified complaint of ill-treatment if there is a perceived risk that this could undermine the chance to conclude an agreement with the prosecutor. Conclusions and recommendations 74. The functioning of the plea-bargaining system cannot and should not be seen as separate from the operation of the entire criminal justice system. The combination of several factors – very high conviction rates, a stringent sentencing policy and the low public trust in the administration in the justice system – may very well influence defendants to plead guilty even if innocent, leading to a distortion of justice. 75. It is important to bear in mind that when consenting to a guilty plea, a defendant waives a number of rights, including the right to give testimony and the right to trial. The Commissioner notes that while safeguards may be provided in the legislation, their implementation in practice has been subject to criticism. Judges should exercise adequate control over plea-bargaining agreements and see to it that these safeguards are fully implemented in practice. The Commissioner is also concerned with the very limited role that the defence plays in the negotiation of a plea agreement. 76. It is essential that the defendant’s plea must always be made voluntarily and free from any improper pressure. To this end, the system further needs the development of objective standards for the negotiations between the defence and the prosecutor, including a clearer definition of the concept ‘cooperation with the investigation’, as well as clear criteria for determining the amount of fines imposed upon the defendant. 77. Finally, there is an urgent need for concrete steps to increase the transparency of the system. The Commissioner supports the efforts of the authorities in this regard and encourages them to adopt an inclusive approach by consulting with all relevant groups, including human right defenders and lawyers.” (Footnotes omitted.) C. Transparency International 58. In February 2010, Transparency International Georgia (TI Georgia), a national branch of the international non-governmental organisation Transparency International, issued its first analytical report on the plea-bargaining system in Georgia – “Plea Bargaining in Georgia”. 59. After setting out the procedure, the State’s rationale for the introduction of plea bargaining into its legal system, the facts concerning its use (according to the official statistical data, in 2005 the number of criminal cases terminated by plea bargaining constituted 12.7%), the report analysed the risks that the unique Georgian model of plea bargaining posed to the right to a fair trial. 60. The relevant excerpts from the latter part of the report read as follows (all the statistics mentioned in the report were official, obtained by TI Georgia either from the Supreme Court of Georgia or the General Prosecutor’s Office): “... The statistics show that plea bargains, once agreed upon between defendant and prosecutor, are almost always upheld. In theory, the presiding judge is meant to ensure that the plea bargain was not attained as a result of undue pressure on the defendant and that the deal was made voluntarily. The judge must also ensure that the defendant’s core rights (such as that of assistance by a defence attorney) were not violated. In practice, only eight plea bargains were denied by Georgian judges in 2008 out of a total that year of 8,770, a rate of less than 0.1%. Judges are also meant to ascertain that there is a prima facie case. In other words, the judge must be satisfied that the evidence provided by the prosecutor would be considered sufficient to warrant a full trial. The difference being that, in a plea bargain, the evidence is not questioned by the defendant. The lawyers interviewed by TI Georgia all doubted that judges reviewed the prima facie case ‘in anything but the most procedural manner’. One example of judges allegedly failing to look into the case properly is that of Natsvlishvili and Togonidze vs. Georgia, where the defendant said that the prosecutor only agreed to enter into a plea bargain after he transferred shares in a car manufacturing plant to the government and paid GEL 50,000 ‘of his own free will’. The court then upheld a plea bargain, based on an official fine of GEL 35,000, which did not include the ‘presents’ paid beforehand, without even looking into the suspicious payments. ... An Omniscient Prosecutor? If you’re charged for a crime in Georgia, you can be pretty sure that you’ll be found guilty. Conviction rates are sky high. Of the 17,639 criminal cases filed at Georgian courts during 2008, only seven ended in an acquittal and 111 more were terminated before a verdict was reached. That makes for a 99% conviction rate, which opponents of plea bargaining say is a direct result of the loss of judicial independence caused by the practice. Prosecutors say that the high conviction rate is the result of ‘hard work’ and ‘careful prosecution’ and is evidence of the system working well. Deputy chief justice of the Supreme Court, Zaza Meishvili, argues that the conviction rate is nothing out of the ordinary when compared to the USA, where 90‑95% of criminal cases end in a plea bargain and therefore a guilty verdict. The difference however, is that a very high proportion of non-plea-bargaining cases in Georgia also end in conviction. Most countries have conviction rates far lower than Georgia’s. For example, amongst OECD countries, only Japan’s 99.7% conviction rate exceeds Georgia’s. ... While the proportion of acquittals has dropped since plea bargaining started in 2004, the numbers were so low before that it hasn’t made much difference. We have come from a 97% conviction rate in 2003 to a 99% conviction rate in 2009. In fact, in 2005, the year plea bargaining graduated from being an anti-corruption measure to being widespread practice in ordinary criminal cases, the number of acquittals and terminated cases almost doubled and the conviction rate came down to 94%; the lowest on record. The explanation for high conviction rates has less to do with plea bargaining and more to do with Georgia’s Soviet legal legacy, a system in which confession was king. As one academic put it: ‘the most powerful person in the Soviet model of criminal justice was, and largely remains, the prosecutor. He or she was responsible for directing the entire criminal proceeding, and thought little of using coerced confessions, falsified evidence or pre-trial detention as a method of inducing a confession’. Deputy Chief Justice of the Supreme Court Zaza Meishvili reaffirmed the high incidence of confessions to TI Georgia, saying the ‘vast majority’ of plea bargains involved a defendant’s confession. No Choice but to Bargain But while we cannot blame plea bargaining for overtly high conviction rates, the overwhelming statistical likelihood of conviction has another very negative effect. The essence of plea bargaining dictates that it should be just that, a bargaining process with the defendant trying to extract the lightest possible sentence from the prosecutor. This is possible only when the defendant has sufficient leverage to make such a deal worth the prosecutor’s while. In other words, the prosecutor knows that if he doesn’t agree to the defendant’s terms, he will have to go through a lengthy legal process, perhaps through three levels of courts. When you have conviction rates approaching 100%, this leverage is much weakened, allowing prosecutors to dictate the terms and leaving defendants with ‘take it or leave it’ offers. In systems with high conviction rates, plea bargaining doesn’t work. When even innocent defendants feel pressure to ‘admit guilt’ because the statistical likelihood of an acquittal is so low, the power is left in the hands of the prosecutors. Thus, unless Georgia’s conviction rate comes down to something more realistic, plea bargaining as an institution cannot work effectively.” 61. According to the official statistics obtained by TI Georgia from the Supreme Court of Georgia and quoted in its above-mentioned report, the rate of acquittals in Georgia represented 0.4% in 2004, 0.7% in 2005, 0.2% in 2006 and remained at 0.1% between 2007 and 2009. III. COMPARATIVE STUDY 62. Out of thirty Council of Europe member States studied for the existence of criminal procedures similar in nature to Georgia’s plea‑bargaining system, no equivalent mechanisms exist in the following three countries – Azerbaijan, Greece and Turkey. A small number of other countries (namely Austria, Denmark and Portugal), while not having passed legislation establishing plea bargaining as a legal concept within their legal systems, are nonetheless familiar with plea bargaining or similar processes in practice. 63. Austria, Belgium, France and Liechtenstein have procedures presenting elements of plea bargaining leading to the discontinuation of criminal proceedings, while Bosnia and Herzegovina, Bulgaria, the Czech Republic, Estonia, France, Germany, Hungary, Italy, Malta, Moldova, Montenegro, Poland, Romania, Russia, Serbia, Slovakia, Slovenia, Spain, Switzerland, Ukraine and the United Kingdom (England and Wales) have established plea-bargaining processes resulting in a criminal conviction. 64. In addition, Austria, the Czech Republic, Hungary, Montenegro, Russia and Serbia provide for the opportunity to have a more lenient sentence imposed, charges dropped or criminal proceedings discontinued if a defendant cooperates with the authorities and thereby contributes to the resolution of the criminal case. 65. Plea bargaining in Council of Europe member States mostly takes the form of sentence bargaining, this being the case in Bosnia and Herzegovina, Bulgaria, the Czech Republic, Estonia, France, Germany, Hungary, Italy, Liechtenstein, Malta, Moldova, Montenegro, Romania, Russia, Serbia, Slovakia, Slovenia, Spain, Switzerland, Ukraine and the United Kingdom. Charge bargaining can be found in Hungary, Serbia, Slovenia, Spain, Switzerland and the United Kingdom. The survey shows that sentence bargaining is a more common practice in Council of Europe States than charge bargaining. This aspect is closely linked to the principle of legality providing less leeway for the prosecution to amend and drop charges. 66. Plea agreements leading to a criminal conviction are, without exception, reviewed by a competent court. In this sense, courts have an obligation to verify whether the plea agreement has been reached in accordance with the applicable procedural and substantive rules, whether the defendant entered into it voluntarily and knowingly, whether there is evidence supporting the guilty plea entered by the defendant and whether the terms of the agreement are appropriate. 67. As a result of the survey, it can be established that the court dealing with the matter generally has an obligation to examine the case file before deciding on whether to approve or reject the plea agreement and has to ascertain that evidence provided in the file supports the guilty plea entered or the confession made by the defendant. Conversely, in Italy, the court is not required by law to examine the evidence or to certify that there is a prima facie case against the accused, and in Switzerland the court is also not automatically obliged to examine the evidence. Russian legislation does not provide for an explicit obligation on the courts to examine the evidence in plea-bargaining cases. Such an obligation could arguably nonetheless be inferred from the obligation on the court dealing with the case to verify whether all conditions for the approval of the plea agreement have been met. 68. In rarer instances, courts are required by law, at least under certain circumstances, to order and examine additional evidence not already contained in the case file in case of expedited proceedings. In this regard, German courts retain their obligation to order evidence aimed at uncovering any aspect of the case that might be relevant for their decision, even if a plea agreement has been entered into. In the United Kingdom, if facts are disputed, the court must be invited to hear evidence to determine the facts, and then sentence on that basis. 69. In most countries surveyed, plea agreements are entered into by the prosecution and the defendant, and subsequently reviewed by a court. In this scenario, the courts in principle have the power to approve or reject the plea agreement but not to modify its terms. In Bulgaria courts are allowed to propose amendments to plea agreements they are requested to consider. However, such amendments need to be accepted by the defendant, the defence counsel and the prosecutor. In Germany, Romania and to some extent in the United Kingdom, the terms of the agreement are defined by the competent court (as opposed to being based on a prior agreement between the prosecution and the defence). 70. Based on the survey, it can be confirmed that the plea-bargaining process leads to expedited trial proceedings in every country that has such processes in place. Procedural safeguards and judicial guarantees are therefore affected in the event of a plea agreement being entered into. To counteract these effects, a number of safeguards are nonetheless in place. 71. For example, the representation of the defendant by counsel is obligatory in Bulgaria, the Czech Republic, France (for any court appearance upon a prior admission of guilt (comparution sur reconnaissance préalable de culpabilité)), Hungary, Malta, Moldova, Russia, Serbia and Slovenia. Other countries surveyed do not have special rules requiring representation by defence counsel in cases of plea bargaining, thus the regular rules relating to legal representation apply. 72. Entering into a plea agreement is conditional on a confession by the defendant in Austria and Liechtenstein (in both States only the concept of “diversion” exists, which leads to the discontinuation of criminal proceedings), in Bosnia and Herzegovina, the Czech Republic, Estonia, France, Germany, Hungary, Malta, Moldova, Montenegro, Romania, Russia, Serbia, Slovakia, Slovenia, Spain, Switzerland, Ukraine and the United Kingdom. Italy, on the other hand, constitutes the exception: a plea agreement does not necessarily need to include an admission of guilt on the part of the defendant. 73. However, in nearly all countries surveyed, with the apparent exception of Romania, the defendant’s guilty plea can only be used for the purposes of the plea agreement. Should the plea agreement not be entered into or be rejected by the court, the guilty plea or the confession of the defendant cannot be used against him. 74. Courts decide on the plea agreement at a hearing in the following countries: Austria, Bosnia and Herzegovina, Bulgaria, the Czech Republic, Estonia, France, Germany, Hungary, Italy, Malta, Moldova, Montenegro, Romania, Russia, Serbia, Slovakia, Spain, Switzerland and the United Kingdom. The presence of the defendant at the hearing is explicitly required by law in, for example, Bulgaria, Hungary, Montenegro, Romania, Russia, and Slovakia. On the other hand, the presence of the defendant is not necessarily required in Italy. 75. In the majority of the countries surveyed, the right to appeal will be restricted after a plea agreement has been entered into. There seems to be a full waiver of the right to appeal in the event of a plea agreement (at least when the plea agreement has been endorsed by the court) in Slovenia. Entering into a plea agreement results in the restriction of the right to appeal in Bosnia and Herzegovina, Bulgaria, the Czech Republic, Estonia, Hungary, Italy, Malta, Moldova, Montenegro, Russia, Serbia, Slovakia, Spain, Switzerland and Ukraine. The right to appeal remains unaffected in Austria, France, Germany, Liechtenstein, Poland, Romania and the United Kingdom. THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 2 OF PROTOCOL No. 7 76. The first applicant complained under Article 6 § 1 of the Convention and Article 2 of Protocol No. 7 that the plea-bargaining process employed in his case had been an abuse of process and that no appeal to a higher court against the judicial endorsement of the plea-bargaining agreement, which he considered to have been unreasonable, had been possible. 77. The relevant parts of Article 6 § 1 of the Convention and Article 2 of Protocol No. 7 read as follows: Article 6 “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ...” Article 2 of Protocol No. 7 “1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.” A. The Government’s submissions 78. The Government submitted that plea bargaining, a form of consensual and abbreviated criminal justice, had been successfully incorporated into the legislation and practice of various European States and worldwide in harmony with the fundamental fair-trial guarantees. The emergence and spread of plea bargaining had been driven by the increased interests of procedural economy. The Government highlighted that as early as 1987 the member States of the Council of Europe had been advised by the Committee of Ministers to develop means of simplifying and expediting trial procedures, which included summary judgments, out-of-court negotiations and guilty pleas (see paragraph 54 above). They further emphasised that the plea-bargaining process represented one of the most practical and successful tools against corruption and organised crime. The introduction of plea bargaining in Georgia in 2004 could not possibly be fully understood without appreciating the context of endemic criminality and corruption pervading in the country at that time. The use of plea bargaining had been intended as an urgent response to those systemic problems. 79. The Government submitted that plea bargaining in Georgia implied a waiver of certain procedural rights in exchange for a more lenient sentence and an expedited trial. Nevertheless, the most substantive guarantees of a fair trial had still been retained under the domestic law, and they had been duly put into practice in the first applicant’s criminal case. Thus, first of all, the first applicant had been represented by qualified legal counsel, had given his prior approval before negotiations with the public prosecutor were started, and had provided the requisite written acceptance, countersigned by his lawyer, of the terms of the agreement reached. Subsequently, the trial court had examined the plea bargain at an oral and public hearing, during which it had enquired as to whether the plea bargain had been reached without duress and under otherwise fair conditions and whether the first applicant was willing to accept it in full awareness of the nature of the charges and the potential sentence. As further guarantees, the Government referred to the fact that not only had the first applicant been entitled to reject the agreed plea bargain during the court’s review, but also the judge, who had been required to assess the validity of the accusations, had been empowered to block the plea bargain in the event of any doubt as to the first applicant’s criminal liability. 80. In support of the claim that the first applicant had been fully aware of the contents of the plea bargain and had consented to it voluntarily, the Government referred to the following factual circumstances of the case. Firstly, the first applicant had been represented by a qualified lawyer of his choosing as early as 16 March 2004, the very next day after his arrest (see paragraph 15 above). On 25 March 2004 he had sent a letter to the public prosecutor, expressing his intention to cooperate with the authorities and reach a settlement (see paragraph 18 above). On 1 August 2004 the first applicant was given access to the criminal case materials, and on 6 August 2004 he appointed a second qualified lawyer of his choosing (see paragraph 21 above). By 6 September 2004 the investigation had been terminated, the evidence against the first applicant had been added to the case file and an indictment accusing the first applicant of large-scale misappropriation of public funds had been issued by the public prosecutor. Having duly acquainted himself with the indictment and the evidence collected, the first applicant, represented by his two lawyers, had again confirmed his readiness to cooperate with the authorities and had transferred on the same day, 6 September 2004, his shares in the factory to the State in compensation for the damage caused by his conduct (see paragraphs 22-23 above). 81. On 9 September 2004 the first applicant had filed another written statement with the public prosecutor. He had expressed his wish to reach a plea bargain as regards the sentence and to pay GEL 35,000 as a fine. In that statement, he had explicitly confirmed that he fully understood the concept of plea bargaining. On the same date, the public prosecutor had visited the first applicant in prison, where, in the presence of his two lawyers, a written record of the agreement had been drawn up and signed by all persons concerned. Subsequently, that record had been duly examined by the court (see paragraphs 27-29 above). 82. As regards the adequacy of the judicial review of the plea bargain between the first applicant and the prosecuting authority, the Government submitted that during the hearing of 10 September 2004 the judge had ensured that the agreement had been reached on the basis of the first applicant’s free will and informed consent. In support, the Government referred to the relevant excerpts from the record of the hearing. The Government stressed that the Kutaisi City Court had been fully able to verify whether the guarantees of due process had been respected by the parties during the plea-bargaining negotiations, given that it had had the complete file before it, including: the first applicant’s statement of 9 September 2004 expressing his willingness to enter into a plea bargain; the agreement itself, signed by both the first applicant and his lawyer and by the public prosecutor; and the prosecutor’s application for the court to approve that agreement. 83. Furthermore, as confirmed by the record of the hearing of 10 September 2004, the City Court had questioned the first applicant, who had unambiguously maintained his willingness to terminate the proceedings by means of the plea bargain. The same had been confirmed by his lawyer. In other words, the City Court had done everything possible to ensure that the first applicant had freely and knowingly entered into the plea bargain. Otherwise, the City Court would have rejected the bargain, as it had the power to do by virtue of the applicable domestic law. The Government further submitted that, even though the plea bargain had been protected by a confidentiality clause (Article 679-2 § 4 of the CCP), which was conditioned by a number of legitimate considerations, the hearing on 10 September 2004 had been open to the public. In support of that contention, the Government submitted written statements taken from the first applicant’s lawyer, the prosecutor and a member of the registry of the Kutaisi City Court, dated 10 and 11 July 2007, all of whom had attended the hearing in question. Those witnesses had confirmed that the hearing had been public and that the court administration had not prevented any interested person from entering the courtroom. 84. Lastly, as regards the first applicant’s inability to lodge an appeal against the Kutaisi City Court’s decision of 10 September 2004, the Government argued that by accepting the plea bargain he had unambiguously waived, similarly to some other fair-trial rights, his right to appeal. All in all, the Government argued that the plea-bargaining process which had resulted in the first applicant’s conviction through an abridged form of trial had not infringed either Article 6 § 1 of the Convention or Article 2 of Protocol No. 7. B. The first applicant’s submissions 85. The first applicant maintained that the termination of the criminal proceedings against him through the use of the plea bargain had amounted to a breach of Article 6 § 1 of the Convention and Article 2 of Protocol No. 7 to the Convention, in so far as the charges against him had been determined without a fair trial and with no possibility of lodging an appeal. Whilst the acceptance of the bargain had entailed a waiver of certain procedural rights, that waiver had not been accompanied by effective safeguards against the abuse of due process by the prosecuting authority. To demonstrate the deficiencies of the Georgian model of plea bargaining in general, the first applicant gave his own comparative overview of how similar plea‑bargaining mechanisms functioned in a number of other European countries (notably in Germany, the United Kingdom, Italy, France and Russia). On the basis of that comparison, he claimed that, unlike the legal systems of the aforementioned countries, the Georgian model of plea bargaining had not allowed him to be represented by an advocate from the beginning of the investigation and had not allowed a judge to undertake a sufficient review of the fairness of the circumstances in which the plea bargain had been reached. 86. Referring to the relevant international observations concerning the Georgian model of plea bargaining, the first applicant submitted that such a process could not fairly operate in a criminal-justice system with a 99% conviction rate (see paragraphs 57-60 above). He also referred to the results of an empirical study, according to which even in those criminal-justice systems in which the acquittal rate amounted to 15-20%, accused persons who considered themselves innocent often chose to plead guilty. In other words, it could not be said that his decision to accept a plea bargain had been truly voluntary. Consequently, the only real opportunity for him to avoid a lengthy term of imprisonment had been entering into a plea bargain. The first applicant emphasised in that connection that, at the time of accepting the plea bargain, he had been detained in particularly intolerable and highly stressful conditions, sharing a cell with a murderer and a person who had abducted and ill-treated him in December 2002. He also referred in that connection to the systemic problem of poor physical conditions of detention in all of the post-conviction custodial institutions of Georgia at the material time. 87. The first applicant complained that the Georgian model of plea bargaining gave unrestricted rights and privileges to the prosecuting authority, a legislative deficiency which excluded any possibility of an agreement being reached between the parties on a more or less equal footing. In that connection the first applicant again referred to the conclusions of the study conducted by TI Georgia (see paragraphs 58-61 above). He also criticised the fact that only the prosecutor and not the defendant was entitled, under the domestic law, to apply to the court with a plea-bargain request at the material time and that it was the prosecutor and not the judge who had been empowered to choose what kind of punishment was to be imposed pursuant to the plea bargain. The first applicant also criticised the absence of a clear definition of the notion of “cooperation with the investigation” under domestic law, a legislative lacuna which increased the risk of procedural abuses. 88. The first applicant asserted that neither the public prosecutor nor the judge had warned him about the waiver of all his procedural rights in the event of entering into a plea bargain. He also complained that the domestic court’s powers in the plea-bargaining process had not represented a sufficient system of checks and balances on potential abuses of power by the prosecutor. The domestic court had only been able to review the plea agreement itself, and had been unable to enquire as to how the relevant negotiations had been conducted and whether any abuses had been committed during those negotiations, as there had been no written or audio record of them. Thus, even if the Kutaisi City Court had formally asked the first applicant during the hearing of 10 September 2004 whether he had been subjected to any form of pressure during the preceding negotiations, that enquiry could not have been an effective check, as it was clear that the first applicant, who had been detained at that time under the control of the executive branch of the State, would not have dared to confide in the court about such duress. Furthermore, the domestic court had not attempted to ensure that the applicant, an accused person, had fully understood the facts which had given rise to the charges against him. 89. The first applicant complained that the Kutaisi City Court had endorsed the plea bargain in a single day, whereas it had been objectively impossible to study the case materials in such a short period. His guilt and punishment had, in reality, been established by the prosecutor, and the domestic court had formally endorsed the prosecutor’s findings without carrying out its own judicial inquiry. Furthermore, observing that the transfer of the shares and the payments had taken place on 6, 8 and 9 September 2004, that is, prior to the approval of the plea bargain by the Kutaisi City Court on 10 September 2004, he submitted that if he had refused to accept the proposed plea bargain before the Kutaisi City Court on 10 September 2004, that would only have led to the continued deprivation of his liberty, in addition to the loss of all the previously forfeited assets, without receiving anything in exchange. In that connection the first applicant emphasised that he had never pleaded guilty to the offences he had been accused of. Lastly, the first applicant maintained his complaint regarding his inability to lodge an appeal against the City Court’s decision of 10 September 2004 convicting him on the basis of the plea bargain, claiming that the relevant criminal procedural legislation had not provided him with any legal avenue through which to contest the coercion applied to him during the plea-bargaining negotiations. C. The Court’s assessment 90. At the outset and in reply to the first applicant’s empirical arguments about the viability of the early Georgian model of plea bargaining, the Court reiterates that it cannot be its task to review whether the relevant domestic legal framework was, per se, incompatible with the Convention standards. Rather, this matter must be assessed by taking into consideration the specific circumstances of the first applicant’s criminal case. The Court further notes that it can be considered a common feature of European criminal-justice systems for an accused to obtain the lessening of charges or receive a reduction of his or her sentence in exchange for a guilty or nolo contendere plea in advance of trial or for providing substantial cooperation with the investigative authority (see the comparative legal study, paragraphs 62-75 above; see also, in this connection, Slavcho Kostov v. Bulgaria, no. 28674/03, § 17, 27 November 2008, and Ruciński v. Poland, no. 33198/04, § 12, 20 February 2007). There cannot be anything improper in the process of charge or sentence bargaining in itself (see, mutatis mutandis, Babar Ahmad and Others v. the United Kingdom (dec.), nos. 24027/07, 11949/08 and 36742/08, 6 July 2010). In this connection the Court subscribes to the idea that plea bargaining, apart from offering the important benefits of speedy adjudication of criminal cases and alleviating the workload of courts, prosecutors and lawyers, can also, if applied correctly, be a successful tool in combating corruption and organised crime and can contribute to the reduction of the number of sentences imposed and, as a result, the number of prisoners. 91. The Court considers that where the effect of plea bargaining is that a criminal charge against the accused is determined through an abridged form of judicial examination, this amounts, in substance, to the waiver of a number of procedural rights. This cannot be a problem in itself, since neither the letter nor the spirit of Article 6 prevents a person from waiving these safeguards of his or her own free will (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 135, 17 September 2009). The Court observes in this connection that as early as 1987 the Committee of Ministers of the Council of Europe called upon the member States to take measures aimed at the simplification of ordinary judicial procedures by resorting, for instance, to abridged, summary trials (see paragraph 54 above). However, it is also a cornerstone principle that any waiver of procedural rights must always, if it is to be effective for Convention purposes, be established in an unequivocal manner and be attended by minimum safeguards commensurate with its importance. In addition, it must not run counter to any important public interest (see, amongst other authorities, Scoppola, cited above, § 135‑36; Poitrimol v. France, 23 November 1993, § 31, Series A no. 277‑A; and Hermi v. Italy [GC], no. 18114/02, § 73, ECHR 2006‑XII). 92. The Court thus observes that by striking a bargain with the prosecuting authority over the sentence and pleading no contest as regards the charges, the first applicant waived his right to have the criminal case against him examined on the merits. However, by analogy with the above‑mentioned principles concerning the validity of such waivers, the Court considers that the first applicant’s decision to accept the plea bargain should have been accompanied by the following conditions: (a) the bargain had to be accepted by the first applicant in full awareness of the facts of the case and the legal consequences and in a genuinely voluntary manner; and (b) the content of the bargain and the fairness of the manner in which it had been reached between the parties had to be subjected to sufficient judicial review. 93. In this connection, the Court notes , firstly, that it was the first applicant himself who asked the prosecuting authority to arrange a plea bargain. In other words, the initiative emanated from him personally and, as the case file discloses, could not be said to have been imposed by the prosecution; the first applicant unequivocally expressed his willingness to repair the damage caused to the State (see paragraphs 14, 18, 22 and 27 above). He was granted access to the criminal case materials as early as 1 August 2004 (see paragraph 21 above). The Court also observes that the first applicant was duly represented by two qualified lawyers of his choosing (compare Hermi, cited above, § 79). One of them met with the first applicant at the very beginning of the criminal proceedings, and represented him during the first investigative interview of 17 March 2004 (see paragraphs 15-16). The two lawyers ensured that the first applicant received advice throughout the plea-bargaining negotiations with the prosecution, and one of them also represented him during the judicial examination of the agreement. Of further importance is the fact that the judge of the Kutaisi City Court, who was called upon to examine the lawfulness of the plea bargain during the hearing of 10 September 2004, enquired of the first applicant and his lawyer as to whether he had been subjected to any kind of undue pressure during the negotiations with the prosecutor. The Court notes that the first applicant explicitly confirmed on several occasions, both before the prosecuting authority and the judge, that he had fully understood the content of the agreement, had had his procedural rights and the legal consequences of the agreement explained to him, and that his decision to accept it was not the result of any duress or false promises (see paragraphs 27, 28 and 31 above). 94. The Court also notes that a written record of the agreement reached between the prosecutor and the first applicant was drawn up. The document was then signed by the prosecutor and by both the first applicant and his lawyer, and submitted to the Kutaisi City Court for consideration. The Court finds this factor to be important, as it made it possible to have the exact terms of the agreement, as well as of the preceding negotiations, set out for judicial review in a clear and incontrovertible manner. 95. As a further guarantee of the adequacy of the judicial review of the fairness of the plea bargain, the Court attaches significance to the fact that the Kutaisi City Court was not, according to applicable domestic law, bound by the agreement reached between the first applicant and the prosecutor. On the contrary, the City Court was entitled to reject that agreement depending upon its own assessment of the fairness of the terms contained in it and the process by which it had been entered into. Not only did the court have the power to assess the appropriateness of the sentence recommended by the prosecutor in relation to the offences charged, it had the power to reduce it (Article 679-4 §§ 1, 3, 4 and 6). The Court is further mindful of the fact that the Kutaisi City Court enquired, for the purposes of effective judicial review of the prosecuting authority’s role in plea bargaining, whether the accusations against the first applicant were well founded and supported by prima facie evidence (Article 679-4 § 5). The fact that the City Court examined and approved the plea bargain during a public hearing, in compliance with the requirement contained in Article 679-3 § 1 of the CCP, additionally contributed, in the Court’s view, to the overall quality of the judicial review in question. 96. Lastly, as regards the first applicant’s complaint under Article 2 of Protocol No. 7, the Court considers that it is normal for the scope of the exercise of the right to appellate review to be more limited with respect to a conviction based on a plea bargain, which represents a waiver of the right to have the criminal case against the accused examined on the merits, than it is with respect to a conviction based on an ordinary criminal trial. It reiterates in this connection that the Contracting States enjoy a wide margin of appreciation under Article 2 of Protocol No. 7 (see, amongst others, Krombach v. France, no. 29731/96, § 96, ECHR 2001‑II). The Court is of the opinion that by accepting the plea bargain, the first applicant, as well as relinquishing his right to an ordinary trial, waived his right to ordinary appellate review. That particular legal consequence of the plea bargain, which followed from the clearly worded domestic legal provision (Article 679-7 § 2), was or should have been explained to him by his lawyers. By analogy with its earlier findings as to the compatibility of the first applicant’s plea bargain with the fairness principle enshrined in Article 6 § 1 of the Convention (see paragraphs 92-95 above), the Court considers that the waiver of the right to ordinary appellate review did not represent an arbitrary restriction falling foul of the analogous requirement of reasonableness contained in Article 2 of Protocol No. 7 either (for the general principle concerning the correlation between the fairness requirements of these two provisions, see Galstyan v. Armenia, no. 26986/03, § 125, 15 November 2007). 97. In the light of the foregoing, the Court concludes that the first applicant’s acceptance of the plea bargain, which entailed the waiver of his rights to an ordinary examination of his case on the merits and to ordinary appellate review, was undoubtedly a conscious and voluntary decision. Based on the circumstances of the case, that decision could not be said to have resulted from any duress or false promises made by the prosecution, but, on the contrary, was accompanied by sufficient safeguards against possible abuse of process. Nor can the Court establish from the available case materials that that waiver ran counter to any major public interest. 98. It follows that there has been no violation of either Article 6 § 1 of the Convention or Article 2 of Protocol No. 7. II. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION 99. The first applicant complained that the circumstances surrounding his public arrest, notably the Regional Governor’s statements, had violated the principle of the presumption of his innocence. 100. Article 6 § 2 of the Convention reads as follows: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” A. The parties’ submissions 101. The Government submitted that the Regional Governor’s carefully worded interview had not amounted to a statement that the first applicant was guilty. The Governor had never made specific reference to the criminal case against the first applicant, but rather had expressed the State’s position as regards corruption in general. The Governor had not even mentioned the first applicant’s name, let alone made any statement transgressing the principle of the presumption of the first applicant’s innocence. As to the fact that there had been media coverage of the first applicant’s arrest, the Government argued that the applicants had failed to submit any evidence which could suggest that the journalists had been there at the authorities’ invitation. 102. The first applicant disagreed. He maintained that his arrest in front of the journalists’ cameras, which had allegedly been there at the prosecutor’s invitation, and the Governor’s interview, had served the purpose of giving the public the impression that he was guilty. The first applicant claimed that the prosecutor and the Government had instigated a media campaign against him which had adversely affected his right to the presumption of innocence and the subsequent trial. B. The Court’s assessment 103. The Court reiterates that the presumption of innocence enshrined in Article 6 § 2 of the Convention is one of the elements of a fair criminal trial required by Article 6 § 1. It will be violated if a statement of a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved so according to law. It suffices, even in the absence of any formal finding, that there is some reasoning to suggest that the official regards the accused as guilty (see, mutatis mutandis, Allenet de Ribemont v. France, 10 February 1995, § 35, Series A no. 308, and Minelli v. Switzerland, 25 March 1983, § 37, Series A no. 62). The Court is mindful of the importance of the choice of words by public officials in their statements before a person has been tried and found guilty of an offence (see Daktaras v. Lithuania, no. 42095/98, § 41, ECHR 2000‑X). The principle of the presumption of innocence may be infringed not only by a judge or court, but also by other public authorities, including prosecutors (see Kuzmin v. Russia, no. 58939/00, §§ 51-63, 18 March 2010; Daktaras, cited above § 42; and Konstas v. Greece, no. 53466/07, § 32, 24 May 2011). The question whether a statement of a public official is in breach of the principle of the presumption of innocence must be determined in the context of the particular circumstances in which the statement in question was made (see Daktaras, cited above, § 43). 104. As regards the Regional Governor’s interview, the Court attaches importance to the fact that that official did not make any specific reference either to the first applicant in person or to the criminal proceedings instituted against him. Rather, the Governor made a general statement about the State’s policy on the fight against corrupt public officials in the country. The Court cannot conclude on the basis of that interview that the Governor intended in any way to render the first applicant identifiable, either directly or indirectly, as the subject of those comments (contrast, for instance, Konstas, cited above, §§ 39-40). 105. The Court has also had regard to the first applicant’s argument concerning a media campaign allegedly instigated against him by the prosecutor and the Governor. In certain situations a virulent media campaign can indeed adversely affect the fairness of a trial and involve the State’s responsibility. This may occur in terms of the impartiality of the court under Article 6 § 1, as well as with regard to the presumption of innocence embodied in Article 6 § 2 (see Shuvalov v. Estonia, no. 39820/08 and 14942/09, § 82, 29 May 2012; Ninn-Hansen v. Denmark (dec.), no. 28972/95, ECHR 1999‑V; and Anguelov v. Bulgaria (dec.), no. 45963/99, 14 December 2004). However, the Court does not consider that the filming of the first applicant’s arrest by journalists from a private television station already amounted to a virulent media campaign aimed at hampering the fairness of the trial, nor is there any specific indication that the interest of the media in the matter was sparked by the prosecutor, the Governor or any other State authority. In the Court’s opinion, the media coverage of the present case did not extend beyond what can be considered as merely informing the public about the arrest of the managing director of one of the largest factories in the country. 106. There has accordingly been no violation of Article 6 § 2 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 107. Both applicants complained that the State had coerced them into forfeiting their shares in the factory free of charge and had extorted additional monetary payments in exchange for the discontinuation of the criminal proceedings against the first applicant, in breach of Article 1 of Protocol No. 1. This provision reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. The parties’ submissions 108. The Government submitted that there had been no violation of Article 1 of Protocol No. 1, given that the forfeiture of their various assets and payment of the fine had not constituted a deprivation of property or some other type of interference with the peaceful enjoyment thereof, but rather a voluntary decision to reimburse the damage caused to the State by the first applicant’s criminal activity and, as a lawful and entirely proportionate measure, had formed part of the relevant plea bargain. 109. The applicants disagreed, maintaining that they had not freely chosen to forfeit the assets and pay the fines but had been coerced into doing so as a result of the undue pressure exercised by the prosecution in the course of the plea bargaining. B. The Court’s assessment 110. The Court reiterates that the forfeiture of the applicants’ assets and the other payments which occurred pursuant to the plea bargain were intrinsically related to and resulted from the determination of the first applicant’s criminal liability (see Natsvlishvili and Togonidze v. Georgia (dec.), no. 9043/05, § 84, 25 June 2013). The lawfulness and appropriateness of those criminal sanctions of a pecuniary nature cannot thus be dissociated from the issue of the fairness of the plea bargain itself. However, having regard to its comprehensive findings under Article 6 § 1 of the Convention and Article 2 of Protocol No. 7 (see paragraphs 90‑98 above), the Court concludes, for the same reasons, that there has been no violation of Article 1 of Protocol No. 1. IV. ALLEGED HINDRANCE OF THE RIGHT OF INDIVIDUAL PETITION UNDER ARTICLE 34 OF THE CONVENTION 111. Both applicants complained under Article 34 of the Convention that the GPO had pressured them to withdraw their application to the Court, otherwise they would reopen the criminal proceedings against the first applicant. This provision, in so far as relevant, reads as follows: “The Court may receive applications from any person .... The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” A. The parties’ submissions 112. The Government submitted that the GPO had simply attempted to conduct friendly settlement negotiations with the applicants, and that it was unethical for the applicants to disclose the contents of those negotiations by referring to them during the contentious proceedings, in breach of the confidentiality principle contained in Rule 62 § 2 of the Rules of Court. In that connection the Government, observing that the Convention system was open to “out-of-court” and “in court” settlements or agreements between the parties at all stages of the proceedings, argued that Rule 62 § 2 should be held applicable to the “out-of-court” negotiations conducted between the applicants’ daughter and a representative of the GPO. 113. The Government emphasised that the applicants’ daughter had been the first to approach the representative from the GPO, whom she had considered to be her friend, asking the latter to explain the friendly settlement procedure. In response, the representative from the GPO had provided the applicants’ daughter, in her e-mails, with all relevant information and advice. The representative had never demanded that the applicants withdraw their case, but rather had attempted to arrange a settlement acceptable to both sides. 114. The applicants replied first that the confidentiality principle contained in Rule 62 § 2 of the Rules of Court had not applied to their situation, as the negotiations between their daughter and the representative from the GPO had been conducted outside the Court’s procedural framework. Highlighting that the GPO representative had warned the applicants’ daughter, in her e-mail dated 11 December 2006, that fresh criminal proceedings could be instituted against her father if he refused to accept a settlement and withdraw his application to the Court, the applicants maintained their complaint of undue pressure. B. The Court’s assessment 115. The Court reiterates that, according to Article 39 § 2 of the Convention, friendly-settlement negotiations are confidential. Furthermore, Rule 62 § 2 of its Rules stipulates that no written or oral communication and no offer or concession made in the course of friendly-settlement negotiations may be referred to or relied on in contentious proceedings. Noting the importance of this principle, the Court reiterates that a breach of the rule of confidentiality might justify the conclusion that an application is inadmissible on the grounds of abuse of the right of application (see Miroļubovs and Others v. Latvia, no. 798/05, § 68, 15 September 2009, and Balenović v. Croatia (dec.), no. 28369/07, 30 September 2010). 116. However, the Court does not see how the confidentiality principle contained in Rule 62 § 2 of the Rules of Court can be deemed applicable to the settlement negotiations conducted in the present case. In fact, those negotiations took place directly between the applicants’ family and the General Prosecutor’s Office, entirely without the Court’s involvement. The parties’ friendly settlement proposals, or at least their positions on the matter, were never filed with the Registry. The Court is consequently of the opinion that the confidentiality principle contained in the Rules of Court, which body of rules governs the organisation and working practices of the Court, cannot possibly apply to something which took place outside its procedural framework. The Government’s objection should thus be rejected. 117. As to the essence of the applicants’ complaint that the GPO had pressured them to withdraw their application, the Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted by Article 34 that applicants or potential applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see, among other authorities, Akdivar and Others v. Turkey, 16 September 1996, § 105, Reports of Judgments and Decisions 1996‑IV, and Aksoy v. Turkey, 18 December 1996, § 105, Reports 1996-VI). In this context, “pressure” includes not only direct coercion and flagrant acts of intimidation but also other improper indirect acts or contacts designed to dissuade or discourage applicants from pursuing a Convention remedy (see Kurt v. Turkey, 25 May 1998, § 159, Reports 1998‑III). 118. However, having particular regard to the content of the e-mail exchange initiated by the applicants’ daughter with the GPO representative (see paragraphs 36-48 above), which was the only piece of evidence submitted by the applicants in support of their complaint, the Court, whilst noting that an informal channel of communication between the prosecution authority and a private third party is in no way an appropriate means with which to settle a case, still considers that that interaction cannot be said to have been incompatible in itself with the State’s obligations under Article 34 of the Convention. The Court observes that the GPO representative’s contact with the applicants’ daughter was not calculated to induce the applicants to withdraw or modify their application or otherwise interfere with the effective exercise of their right of individual petition, and indeed did not have that effect (compare, for instance, Konstantin Markin v. Russia [GC], no. 30078/06, §§ 162-63, ECHR 2012 (extracts)). 119. The authorities of the respondent State cannot thus be held to have hindered the applicants in the exercise of their right of individual petition, and the respondent State has not failed to comply with its obligations under Article 34 of the Convention. FOR THESE REASONS, THE COURT 1. Holds, by six votes to one, that there have been no violations of Article 6 § 1 of the Convention and Article 2 of Protocol No. 7 to the Convention; 2. Holds, unanimously, that there has been no violation of Article 6 § 2 of the Convention; 3. Holds, unanimously, that there has been no violation of Article 1 of Protocol No. 1 to the Convention; 4. Holds, unanimously, that the respondent State has not failed to comply with its obligations under Article 34 of the Convention. Done in English, and notified in writing on 29 April 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaJosep CasadevallRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Gyulumyan is annexed to this judgment. J.C.M.S.Q. PARTLY DISSENTING OPINION OF JUDGE GYULUMYAN I am unable to subscribe to the opinion of the majority of the Court that there have been no violations of Article 6 § 1 of the Convention or Article 2 of Protocol No. 7 to the Convention. I agree, however, that there have been no violations of Article 6 § 2 or Article 1 of Protocol No. 1 and that the respondent State has not failed to comply with its obligations under Article 34 of the Convention. 1. At the outset, I would like to point out that the manner in which the relevant authorities used the plea-bargaining procedure in Georgia at the material time was a target of heavy public criticism. In particular, many legal commentators considered that plea bargaining was used not so much for the legitimate purposes outlined in Article 15 of the Code of Criminal Procedure (“a faster and more efficient justice system”), but rather to fill the State treasury with funds and other assets extorted from the defendants. In line with this criticism, the Parliamentary Assembly of the Council of Europe went further by urging the Georgian authorities, on 24 January 2006, to “critically review the present practice of the ‘plea bargaining’ system which – in its present form – on the one hand allows some alleged offenders to use the proceeds of their crimes to buy their way out of prison and, on the other, risks being applied arbitrarily, abusively and even for political reasons” (see paragraph 56 of the present judgment). 2. However, I also wish to make it clear that it is not my objective to call into question the system of plea bargaining as such, in general terms. Rather, it is the particular circumstances of the present case which have led me to the conclusion that the early Georgian model of plea bargaining, as applied by the relevant domestic authorities with respect to the first applicant, fell foul of the safeguards provided by Article 6 § 1 of the Convention for the following reasons. 3. I believe that the question whether the first applicant and the prosecutor had been on an equal footing during the plea-bargaining negotiations could not have been duly examined by the Kutaisi City Court without those negotiations having been recorded in full. However, as no such obligation was contained in the Georgian Code of Criminal Procedure, the prosecution did not apparently record its negotiations with the first applicant. Several shady factual circumstances of the case – the fact that the transfer of the factory shares and of the monetary payments had occurred even before the procedural agreement was struck; the statements of Mrs M.I. and of the former employees of the factory accusing the prosecuting authority of undue pressure; the fact that the first applicant had been detained, allegedly deliberately, in stressful conditions, etc. – also taint the presumption of equality between the parties pending the relevant negotiations. 4. As regards the question whether the first applicant had agreed to the plea bargain in a truly voluntary manner, I note that the conviction rate in Georgia amounted to some 99% at the material time, in 2004 (see paragraph 60 of the judgment). With such a sky-high rate, it is difficult to imagine that the applicant could have believed, during the relevant plea-bargaining negotiations, that his chances of obtaining an acquittal were real. The same argument, moreover, that in systems with high conviction rates the plea-bargaining system can hardly function fairly, was voiced by Transparency International Georgia in its report on the Georgian model of plea bargaining (see paragraph 60 of the present judgment). Thus, the applicant had no real option other than to accept the “take it or leave it” terms dictated by the prosecutor. Of further importance in this regard is the manner in which the General Prosecutor’s Office apparently treated the first applicant’s case at domestic level, with its representative actually threatening the applicants’ family with annulling the plea bargain and reopening proceedings against the first applicant and even going so far as to predict the content of a court decision (see paragraphs 42 and 47 of the judgment). Such a disturbing attitude on the part of the prosecuting authority is also revealing as to the leverage it might have had with respect to the first applicant when the proceedings against him were still pending. 5. Another important fairness safeguard as regards the plea bargaining is that the first applicant should not have been threatened by the prosecution with charges unsupported by prima facie evidence. The Kutaisi City Court should have ensured, pursuant to Article 679-4 §§ 3 and 4 of the Code of Criminal Procedure, that there had been a prima facie case against the first applicant. Whether that requirement was duly met by the domestic court seems, in my view, to be extremely dubious in the light of the available case materials; the Government have not submitted sufficient arguments or evidence which would enable me to reach a positive conclusion in this connection. On the contrary, it would have been an extremely difficult task for the Kutaisi City Court to examine the well‑foundedness of the charges in one day alone, given that the prosecutor had applied to the court with the relevant brief on 9 September 2004 and that, already on the following day, the City Court approved the plea bargain and found the first applicant guilty (see paragraphs 29 and 31-33 of the present judgment). 6. Lastly, I note with particular concern that the relevant domestic law did not entitle the first applicant to lodge an appeal against the court decision endorsing his plea bargain. The absence of such a remedy obviously resulted in a further limitation of the judicial supervision of the fairness of the plea bargaining. The Georgian authorities apparently acknowledged that serious shortcoming themselves when, on 25 March 2005, they finally introduced the right of appeal in plea-bargaining situations (see paragraphs 50-52 of the present judgment). 7. All the above-mentioned deficiencies gain an additional dimension when assessed against the fact that the first applicant agreed to a bargain with the prosecution in respect of the sentence alone and refused to plead guilty to the charges. I regret that the majority did not consider it necessary to distinguish, as a matter of principle, between plea bargaining in respect of the charges, where the defendant freely and knowingly confesses to the offence committed, and a situation where the bargain relates solely to the sentence without a guilty plea. In the latter situation, as in the present case, I believe that the procedural safeguards in the plea-bargaining procedure must be even stricter. For instance, since the applicant never confessed to any of the offences of which he had been accused by the prosecution, the domestic courts should, in my opinion, have subjected the well-foundedness of the charges to a much higher level of scrutiny than that which is normally reserved for situations where accused persons voluntarily plead guilty. 8. The above-mentioned considerations are sufficient for me to conclude that there has been a violation of Article 6 § 1 of the Convention and of Article 2 of Protocol No. 7.

CASE OF TAHSİN ACAR v. TURKEY (Application no. 26307/95) JUDGMENT (Merits) STRASBOURG 8 April 2004 In the case of Tahsin Acar v. Turkey, The European Court of Human Rights, sitting as a Grand Chamber composed of: MrL. Wildhaber, President,MrC.L. Rozakis,MrJ.-P. Costa,MrG. Ress,SirNicolas Bratza,MrA. Pastor Ridruejo,MrG. Bonello,MrL. Caflisch,MrsF. Tulkens,MrsV. Strážnická,MrP. Lorenzen,MrsN. Vajić,MrM. Pellonpää,MrsM. Tsatsa-Nikolovska,MrE. Levits,MrL. Garlicki, judges,MrF. Gölcüklü, ad hoc judge,and Mr P.J. Mahoney, Registrar, Having deliberated in private on 2 April 2003 and 24 March 2004, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an application (no. 26307/95) against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Tahsin Acar (“the applicant”), on 29 October 1994. The applicant stated that the application was also lodged on behalf of his brother Mehmet Salim Acar[1]. 2. The applicant, who had been granted legal aid, was initially represented before the Court by Mr P. Leach, a lawyer attached to the Kurdish Human Rights Project, a non-governmental organisation based in London, and subsequently by Mr K. Starmer, a barrister practising in the United Kingdom. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Chamber which initially examined the case. They subsequently designated Mr E. İşcan and Mr M. Özmen as Agents when the case was referred to the Grand Chamber (see paragraph 24 below). Having originally been designated by the initials T.A. in the proceedings before the Chamber, the applicant subsequently agreed to the disclosure of his name. 3. The applicant alleged, in particular, that his brother Mehmet Salim Acar had disappeared on 20 August 1994, when he was abducted by two unidentified persons – allegedly plain-clothes police officers. The applicant complained of the unlawfulness and excessive length of his brother's detention, of the ill-treatment and acts of torture to which his brother had allegedly been subjected while in detention, and of the failure to provide his brother with the necessary medical care in detention. The applicant further complained that his brother had been deprived of the services of a lawyer and of all contact with his family. The applicant relied on Articles 2, 3, 5, 6, 8, 13, 14, 18, 34 and 38 of the Convention. 4. The Commission decided on 4 September 1995 to give notice of the application to the Government and to invite them to submit written observations. The Government submitted their observations on 21 December 1995, to which the applicant replied in his submissions of 20 March 1996. 5. The Commission declared the application admissible on 30 June 1997 and requested the Government, inter alia, to submit a copy of the complete case file of the Diyarbakır Provincial Administrative Council (İl İdare Kurulu). The Commission reminded the Government of this request on 17 December 1997, 27 January 1998 and 8 September 1999. 6. The Commission, in accordance with Article 5 § 3, second sentence, of Protocol No. 11 to the Convention, transmitted the application to the Court on 1 November 1999, the Commission not having completed its examination of the case by that date. 7. The application was initially allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. Mr R Türmen, the judge elected in respect of Turkey, withdrew from sitting in the case (Rule 28). The Government accordingly appointed Mr F Gölcüklü to sit as an ad hoc judge. 8. On 29 February 2000 the Chamber examined the state of the proceedings in the application and noted, inter alia, that despite several reminders the Government had failed to submit the case file of the Diyarbakır Provincial Administrative Council. 9. The Chamber, having decided that no hearing on the merits was required (former Rule 59 § 2 in fine), invited the parties on 2 March 2000 to submit final written observations. 10. On 19 April 2000 the applicant's representatives informed the Court that the mother, sister and wife of Mehmet Salim Acar claimed to have seen him on an NTV channel news programme broadcast on 3 and 4 February 2000. The applicant's family had attempted to obtain a video recording of these broadcasts, but without success (see paragraph 170 below). 11. On 28 April 2000 the Chamber put several questions to the Government in relation to the alleged sighting on television and requested the Government to submit a video recording of the NTV news broadcasts referred to by the applicant. The Court further informed the parties that the time-limit fixed for the submission of the parties' final observations had been adjourned until further notice. 12. On 6 July 2000 the Government informed the Court that the person cited in the NTV news broadcast was not the applicant's brother and that, in all probability, it was a case of a confusion of names. As the Government had not submitted the requested video recording, the Court reminded the Government on 13 July 2000 of its outstanding request to do so. A further reminder was sent to the Government on 5 September 2000. 13. On 18 October 2000 the Court also requested the applicant's representative to submit a video recording of the broadcasts he had referred to and, in case he was unable to do so, to inform the Court of the reasons therefor. 14. On 9 November 2000 the applicant's representative informed the Court of the steps he had taken to obtain the requested video recording. 15. On 17 January 2001 the Government submitted a video recording of the NTV news programmes broadcast on 3 February 2000 at 11 a.m. and 11 p.m. 16. By letters of 24 and 25 January 2001, the applicant's representative informed the Court that the NTV administration had refused to provide him with a video recording of the news broadcasts, stating that a request to this effect had to be made by the applicant in person, and that, on 25 January 2001, the applicant himself had sent a request to the NTV administration to be provided with a video recording of the NTV news programmes broadcast on 2 February 2000 at 11 p.m. and on 3 February 2000 at 8 a.m. 17. On 20 February 2001 the applicant's representative informed the Court that the video recording submitted by the Government on 17 January 2001 had been seen by the applicant and that it did not contain the programmes broadcast at the times indicated by the Acar family. The applicant's representative further informed the Court that the applicant himself had sent a further request to the NTV administration on 16 February 2001. 18. On 26 February 2001, having noted an apparent misunderstanding about the exact time of the relevant broadcasts, the Court requested the Government to submit a video recording of the NTV news programmes broadcast on 2 February 2000 at 11 p.m. and 3 February 2000 at 8 a.m. The Court also invited the parties to submit their final observations. 19. On 13 June 2001 the Government informed the Court that it was not possible to comply with the request of 26 February 2001 since, in compliance with their legal obligations, the NTV administration only kept recordings of broadcasts for a period of one year. 20. The parties submitted their final written observations on 23 April and 4 May 2001 respectively. They further considered the possibility of a friendly settlement. No settlement was reached. 21. By a letter of 27 August 2001, the Government requested the Court to strike the case out of its list and enclosed the text of a unilateral declaration with a view to resolving the issues raised by the applicant. The applicant filed observations on the Government's request on 17 December 2001. 22. Following the general restructuring of the Court's Sections as from 1 November 2001 (Rule 25 § 1 of the Rules of Court), the application was assigned to the newly composed Second Section of the Court (Rule 52 § 1). 23. In a judgment of 9 April 2002 (“the Chamber judgment”), the Chamber decided, by six votes to one, to strike the application out of the list in accordance with Article 37 § 1 (c) of the Convention on the basis of the unilateral declaration made by the Government. 24. On 8 July 2002 the applicant requested that the case be referred to the Grand Chamber (Article 43 of the Convention). On 4 September 2002 the panel of the Grand Chamber decided to accept his request (Rule 73). 25. The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24. 26. In a judgment (preliminary issue) of 6 May 2003, following an oral hearing held on 29 January 2003 on the question of the application of Article 37 of the Convention, the Grand Chamber decided, by sixteen votes to one, to reject the Government's request of 27 August 2001 to strike the application out of the list on the basis of the unilateral declaration made by the Government and to pursue its examination of the merits of the case. 27. On 7 May 2003, in the context of its examination of the merits of the case, the Grand Chamber requested the Government to submit further documents, namely, a copy of the complete case file of the Diyarbakır Administrative Council and the original – a copy having already been submitted on 21 December 1995 – custody records of the Bismil gendarmerie station from August 1994. Further, having decided that no taking of oral evidence and no hearing on the merits was required (Rule 59 §§ 1 and 3 in fine), the Grand Chamber invited the parties to make further submissions in addition to their final written observations on the merits filed with the Chamber on, respectively, 23 April and 4 May 2001. 28. With their submissions of 6 and 27 June 2003, the Government produced the requested case file and informed the Court that, although custody records should be kept for ten years, they had been unable to find the original custody records requested by the Court. The documents were transmitted to the applicant, who was provided with the possibility of submitting comments. 29. On 27 June 2003 both parties filed further submissions to their final observations on the merits. 30. On 7 November 2003 the applicant filed his comments on the documents submitted by the Government in June 2003. 31. Mr M. Fischbach, who was unable to take part in the further consideration of the case, was replaced on 15 January 2004 by Mr G. Bonello, substitute (Rule 24 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 32. The applicant was born in 1970 and lives in Sollentuna (Sweden). The facts of the case, as submitted by the parties, may be summarised as follows. A. The facts 33. The applicant's brother Mehmet Salim Acar (son of Mehmet and Hüsna, born in Bismil in 1963), a farmer living in Ambar, a village in the Bismil district in south-east Turkey, disappeared on 20 August 1994. The facts surrounding the disappearance of the applicant's brother are in dispute between the parties. 34. The facts as submitted by the applicant are set out in Section 1 below. The facts as submitted by the Government are contained in Section 2. A summary of the documents produced is set out in Part B. 1. The facts as submitted by the applicant 35. On 20 August 1994, while Mehmet Salim Acar was working in a cotton field near Ambar, a white or grey Renault car without any registration plates stopped. Two armed men in plain clothes – claiming to be police officers – got out of the car and asked Mehmet Salim to accompany them in order to help them find a field. When Mehmet Salim refused to get into the car, the two men threatened him with their weapons. They then took his identity card, tied his hands, blindfolded him, punched him in the head and stomach, forced him into their car and drove off. 36. The scene was witnessed by Mehmet Salim's son İhsan Acar and İlhan Ezer, another farmer. After the car had driven off, İhsan ran home and told his mother Halise Acar what had happened, and she in turn informed the village headman. Abide Acar, Mehmet Salim's daughter, had seen her father sitting in the back of a “grey-coloured” car passing through the village while she and a neighbour were washing clothes in a stream. Another villager had allegedly seen Mehmet Salim being taken to the riverbank, where five other people had been waiting in another car. Mehmet Salim's hands and feet were tied, he was blindfolded and his mouth was taped. The two cars had reportedly driven off in the direction of Bismil. Nothing has been heard from Mehmet Salim since. 37. Mehmet Salim's family filed a series of petitions and complaints about his disappearance to the authorities, including the Deputy Governor and the Bismil gendarmerie, in order to find out where and why he was being detained. 38. On or around 27 August 1994, Mehmet Salim's sister Meliha Dal personally handed a petition about her brother's disappearance to the Deputy Governor of Diyarbakır. After reading the petition and, in her presence, speaking on the telephone with Ahmet Korkmaz, a non-commissioned officer (NCO) of the gendarmerie, the Deputy Governor told her that Mehmet Salim was in the hands of the State and that there was nothing that she could do for the time being. 39. When leaving the Deputy Governor's office, Meliha Dal was approached by a police officer, Mehmet Şen, who volunteered to make enquiries about her brother with a friend in the “torture place” of the Bismil gendarmerie station. This police officer rang Meliha Dal three days later and told her that he had seen Mehmet Salim at the Bismil gendarmerie command and that he could take him some clothes and cigarettes. After Meliha Dal had fetched some clothes, the police officer told her that he would take them to her brother in one or two days' time. On 31 August 1994 the police officer called Meliha Dal again and told her that her brother had been taken away from the Bismil gendarmerie command but that he did not know where he had been taken to. 40. On 29 August 1994 Hüsna Acar, Mehmet Salim's mother, filed a petition with the Bismil public prosecutor requesting an investigation into her son's disappearance. On 2 September 1994 the public prosecutor took statements from Hüsna, Halise and İhsan Acar, and the farmer İlhan Ezer. 41. On 19 October 1994 Hüsna Acar asked the Bismil Chief Public Prosecutor for information about the progress of the investigation, but she received no reply. 42. In letters of 29 November 1994 and 19 January 1995, the applicant asked the public prosecutor at the Diyarbakır National Security Court to investigate the whereabouts of his brother Mehmet Salim. These letters went unanswered. 43. On 15 March 1995 the Bismil public prosecutor wrote to the Bismil gendarmerie commander, seeking a reply to his enquiry about the case. He wrote again on 17 May 1995 to enquire whether or not the detention of Mehmet Salim Acar might have been politically motivated. 44. On 20 July 1995 the applicant asked the Bismil Chief Public Prosecutor for information about the case of Mehmet Salim Acar and accused gendarmerie officers İzzetin and Ahmet and village guard Harun Aca of being responsible for his brother's abduction. 45. On 26 and 27 July 1995 the applicant sent letters to the Minister for Human Rights and the Minister of Justice, seeking information about his brother's whereabouts and condition. On 24 August 1995 the Minister for Human Rights informed the applicant that his petition had been transmitted to the office of the Diyarbakır Governor. In his reply of 30 August 1995, the applicant requested the Minister for Human Rights to ensure his brother's safety and to take urgent action. 46. On 8 September 1995 gendarmes took further statements from Hüsna, Halise and İhsan Acar. 47. On 22 September 1995 the applicant spoke on the telephone with gendarmerie captain İrfan Odabaş, of the Bismil gendarmerie command, who told him that Mehmet Salim Acar's whereabouts were unknown and asked him whether the abductors had made any ransom demand. The applicant replied that no such demand had been made but that he would pay in return for his brother's release. 48. On 27 September 1995 the applicant was contacted by an unknown person who asked for 1,100,000,000 Turkish liras in return for his brother's release. The applicant accepted immediately. He was told that his brother would be interrogated at the Bismil gendarmerie command and that he would be able to meet him within a week. 49. On 5 October 1995 Mehmet Salim's family were contacted by a person called Murat, who informed them that Mehmet Salim had been detained in Bolu and subsequently at a military base. He was alive and was working as an agent for the authorities. In order to have him released, the family would have to comply with the conditions of the Diyarbakır Regiment Commander, namely to keep secret the names of those who had abducted him, as well as the place where and the persons by whom he had been detained. The family refused to accept these conditions. On 10 October 1995 Murat contacted the family again and asked them to reconsider their position, otherwise Mehmet Salim would not be released. 50. On 25 October 1995 Meliha Dal made a statement to the Bismil gendarmerie command to the effect that, in her opinion, the gendarmerie officers İzzet Cural and Ahmet Korkmaz and the former PKK (Workers' Party of Kurdistan) member Harun Aca, who had become a village guard, were responsible for her brother's abduction. 51. On 30 October 1995 the home of Meliha Dal was raided by officers of the anti-terrorism branch of the Diyarbakır police, who threatened her with death and attempted to abduct her 12-year-old son. 52. In November 1995 the applicant was informed by the Diyarbakır general gendarmerie command that his brother had not been apprehended by the gendarmerie but had been abducted by two unidentified civilians claiming to be policemen. 53. The applicant also filed a petition about his brother's disappearance with the Investigation Commission for Human Rights of the Turkish Grand National Assembly. On 1 December 1995, in reply to a request for information, the office of the Diyarbakır Governor informed the Investigation Commission for Human Rights that the case had been investigated, that the two gendarmerie officers whose names had been given by the applicant and his sister had not apprehended Mehmet Salim, that he had been abducted by two unidentified individuals and that the investigation of the case by the Bismil public prosecutor was ongoing. This information was transmitted to the applicant by the Human Rights Commission on 18 December 1995. 54. On 10 June 1996 Hüsna Acar asked the Bismil public prosecutor for information about the progress of the investigation. 55. On 17 June 1996 the Bismil public prosecutor issued a decision of non-jurisdiction (görevsizlik kararı) and transmitted the investigation opened in respect of gendarmerie officers İzzet Cural and Ahmet Babayiğit and village guard Harun Aca to the Diyarbakır Provincial Administrative Council for further proceedings under the Law on the prosecution of civil servants (Memurin Muhakematı Kanunu). 56. On 25 November 1996 Meliha Dal requested the Diyarbakır Governor to open an investigation into Mehmet Salim's disappearance. On 10 December 1996 the applicant wrote a letter to the President of Turkey and filed a further petition with the Diyarbakır Provincial Administrative Council. On 11 December 1996 Hüsna Acar wrote a letter to the President of Turkey and to the Minister of the Interior, asking them to investigate the disappearance of her son Mehmet Salim. Both petitions were transmitted to the office of the Batman Governor. 57. On 17 January 1997 the Diyarbakır Governor informed Meliha Dal in reply to her petition of 25 November 1996 that an investigation into the matter had been carried out by the Bismil Chief Public Prosecutor and that those responsible for the abduction of her brother remained unidentified. 58. In a decision of 23 January 1997, the Diyarbakır Provincial Administrative Council decided not to take proceedings against the two gendarmerie officers and the village guard on the ground that there was insufficient evidence. This decision was confirmed by the Supreme Administrative Court (Danıştay) on 14 January 2000. 59. On 2 February 2000 at 11 p.m., Meliha Dal and Hüsna and Halise Acar watched a news broadcast on the NTV television channel. The newsreader announced that four persons had been apprehended in Diyarbakır, one of whom was named Mehmet Salim Acar. Pictures of the apprehended men were shown and all three of them recognised Mehmet Salim Acar. The three women continued to watch the news all night and saw him again on the following day during the 8 a.m. television news broadcast. 60. On 4 February 2000 Meliha Dal and Hüsna and Halise Acar informed the Bismil public prosecutor in person of what they had seen. The public prosecutor telephoned the office of the Diyarbakır public prosecutor and told the women afterwards that three persons by the name of Mehmet Salim Acar had been apprehended, but that, apart from the name, the particulars of the three men did not match those of their relative. 61. Two days later, the Bismil public prosecutor informed Meliha Dal that her brother had in fact been apprehended, that he was being held in prison in Muş, and that he would be released after making a statement. 62. On 16 February 2000 Meliha Dal told the Diyarbakır public prosecutor that she had seen her brother on television and asked the public prosecutor for information about his fate. The public prosecutor referred her to the Şehitlik police station, from where she was referred to the police headquarters for verification of the police computer records. There she was told that she would be informed about her brother and was asked to leave. She subsequently received no further information from the police headquarters. 63. On 18 February 2000 Meliha Dal made a similar request to the office of the Diyarbakır Governor, and was again referred to the Şehitlik police station, which directed her to the anti-terrorism branch, where a police officer took a statement from her and recorded her particulars. After about an hour, Meliha Dal was told that her brother had not agreed to see his family. When she refused to accept this answer and insisted on seeing him, she was asked to leave. She was informed three days later that her brother was not in fact at the anti-terrorism branch. She was subsequently told to go to the prison in Muş. When she and İhsan Acar went to the prison, they were shown a person who was not Mehmet Salim Acar. 64. On 23 March 2000 three officers from the anti-terrorism branch came to Halise Acar's home and asked her for a copy of her family's entry in the population register. She was told that they were looking for Mehmet Salim Acar throughout Turkey and that it was not established that he was dead. 65. According to a decision of non-jurisdiction issued on 2 May 2000 by the Muş Chief Public Prosecutor, the person placed in pre-trial detention in Muş was a Mehmet Salih Acar whose year of birth and parents did not match the particulars of the applicant's brother. 66. On 11 May 2000 Meliha Dal filed a petition with the Diyarbakır public prosecutor seeking an investigation into the sighting of her brother Mehmet Salim Acar during the television news broadcast. 67. On 30 May 2000 the Diyarbakır Chief Public Prosecutor issued a decision not to open an investigation (tapiksizlik kararı) on the basis of the petition of 11 May 2000. 68. Later in 2000 Meliha Dal spoke with a prison officer at Muş Prison. The officer confirmed that he had seen Mehmet Salim Acar when he and five or six others had been apprehended and taken to Muş Prison. According to Meliha Dal, the officer's description of Mehmet Salim corresponded to her brother's appearance. 2. The facts as submitted by the Government 69. On 29 August 1994 the applicant's mother filed a petition with the Bismil public prosecutor's office requesting an investigation into the whereabouts of her son Mehmet Salim Acar, who had been kidnapped by two men. 70. The public prosecutor opened an investigation, in the course of which statements were taken from Hüsna and Halise Acar and from the two eyewitnesses to the events, İhsan Acar and İlhan Ezer. İhsan Acar stated that two Turkish-speaking men wearing hats and glasses had asked his father to show his identity card and that he was then put in a grey car without licence plates. İlhan Ezer declared that a grey Renault TX-model car without licence plates had approached them, that one of the two men in the car, speaking with a western Anatolian accent and wearing glasses, had forced them to show their identity cards, saying they were police officers. The men did not give back Mehmet Salim's identity card, saying that they would bring him back after he had shown them someone's land. 71. On 19 October 1994 Hüsna Acar filed another petition with the Bismil public prosecutor. 72. On 15 March 1995 the Bismil public prosecutor requested the Bismil gendarmerie command to investigate whether or not Mehmet Salim Acar had been kidnapped. In a letter of 17 May 1995, the Bismil public prosecutor asked the Bismil gendarmerie commander for information about the case. 73. In a letter of 20 July 1995 to the Bismil public prosecutor, the applicant claimed that village guard Harun Aca, gendarmerie captain İzzettin and gendarmerie officer Ahmet had been involved in the kidnapping of his brother. On the basis of this letter, the public prosecutor decided to hear those allegedly involved and summoned all gendarmerie officers named Ahmet who worked at the Bismil gendarmerie command at the material time to be heard. 74. On 8 September 1995 gendarmes took statements from Hüsna, Halise and İhsan Acar and from İlhan Ezer. On the basis of the applicant's allegation that Mehmet Salim Acar had been taken away by two officers of the Bismil gendarmerie and a local village guard, İlhan Ezer was asked whether the persons who had abducted Mehmet Salim Acar had worked at the Bismil gendarmerie command, which he denied. He further stated that Mehmet Salim Acar's behaviour had also not indicated that he knew these men. 75. On 25 October 1995 İlhan Ezer made a statement to the Bismil notary public, in which he stated that he had seen the persons who had abducted Mehmet Salim Acar and that they were not Captain İzzet Cural and Sergeant Ahmet as alleged. 76. On 6 November 1995 the Bismil public prosecutor took a statement from the gendarmerie officer Ahmet Uyar, who stated that he had just taken up his duties at the time of the incident and that he did not know anything about it. He further stated that there were two other gendarmerie officers named Ahmet, namely Ahmet Korkmaz, who had been killed by the PKK, and Ahmet Babayiğit, who had been transferred to a region with a different climate on medical grounds. 77. On 23 November 1995 Harun Aca made a statement to both the gendarmerie and the Bismil public prosecutor, on which occasion he submitted a document proving that he had not been in Bismil between 19 July and 6 September 1994, when he had been participating in a security forces operation in Mardin. 78. On 17 June 1996 the Bismil public prosecutor issued a decision of non-jurisdiction and referred the case to the Diyarbakır Provincial Administrative Council. The Administrative Council appointed Captain İrfan Odabaş as inspector for the investigation into the applicant's allegations that his brother had been taken into detention by gendarmerie captain İzzet Cural and NCO Ahmet Babayiğit under the guidance of temporary village guard Harun Aca. 79. On 9 December 1996 İlhan Ezer made another statement to the gendarmerie in which he declared that he knew Captain İzzet and NCO Ahmet very well and that they were definitely not the men who had abducted Mehmet Salim Acar. 80. On 25 December 1996 the gendarmerie took a statement from NCO Ahmet Babayiğit, who stated that he had not witnessed the incident and that he did not know anything about it. 81. On 1 January 1997 the gendarmerie took a statement from Captain İzzet Cural, who denied that Mehmet Salim Acar had been apprehended and detained. 82. On 23 January 1997 the Provincial Administrative Council issued a decision of non-prosecution, finding that there was insufficient evidence to take proceedings against İzzet Cural, Ahmet Babayiğit or Harun Aca. 83. Mehmet Salim Acar has been included on the list of persons who are being searched for by the gendarmerie throughout Turkey, and the search for him continues. 84. The person who was apprehended and shown during a television news broadcast in February 2000 was not the applicant's brother. Several persons being held in detention have the same name as the applicant's brother. However, their dates and places of birth and particulars are different from his. B. Documents produced by the parties 85. The parties have produced various documents concerning the investigation into the abduction of Mehmet Salim Acar[2]. 1. Petitions submitted by Mehmet Salim Acar's relatives to the authorities between 29 August 1994 and 11 December 1996 86. On 29 August 1994 Hüsna Acar filed a petition with the public prosecutor's office in Bismil requesting an investigation into the disappearance of her son Mehmet Salih Acar, who had been abducted ten days before by two unknown persons – armed with Kalashnikov rifles and wearing civilian clothes – in a taxi. In her petition Hüsna Acar further stated that her family had already made enquiries with the gendarmerie and the police, who had told them that they knew nothing about it. Hüsna Acar requested the public prosecutor to issue the necessary instructions in order to find her son as soon as possible. 87. On 19 October 1994 Hüsna Acar filed a second petition with the Bismil public prosecutor, in which she requested an investigation into the disappearance of her son. She asked the public prosecutor in particular to verify whether her son had been apprehended and was being held by the security forces. 88. By a letter of 20 July 1995, the applicant requested the Bismil public prosecutor to grant his family permission to visit his brother Mehmet Salim Acar who, according to the applicant, had been apprehended in August 1994 by the Bismil gendarmerie commander. The applicant stated that gendarmerie captain İzzettin, NCO Ahmet and Harun Aca, an inhabitant of Ambar, were responsible for his brother's life. 89. By a letter of 26 July 1995, the applicant complained to the Ministry of Human Rights that in August 1994 his brother Mehmet Salim Acar had been apprehended by Captain İzzettin, NCO Ahmet and counter-guerrilla agent Harun Aca, and that since then his brother was being held at the Bismil gendarmerie command. The applicant further stated that his family had not received a positive reply from the Bismil public prosecutor and the Diyarbakır National Security Court, to which they had applied, and that they were disconcerted not to have been granted permission to contact Mehmet Salim even though they had evidence that he was being detained. 90. The applicant submitted a similar petition to the Ministry of Justice on 27 July 1995. 91. In a further letter of 30 August 1995 to the Ministry of Human Rights, the applicant stated that, in addition to his letter of 26 July 1995, he had learned from an official, who wished to remain anonymous, that his brother Mehmet Salim Acar had been taken into detention by Captain İzzet Cura on the basis of information supplied by the “confessor”[3] Harun Aca. Having interrogated him, Captain İzzet had concluded that Mehmet Salim was innocent and that Harun Aca's information had been incorrect. However, as Captain İzzet feared sanctions for having detained Mehmet Salim incommunicado and for too long, for having denied him the necessary medical care and for having failed to respect his defence rights, he had kept Mehmet Salim in detention. Considering that his brother risked being killed by Captain İzzet in order to conceal the matter, the applicant requested the Ministry of Human Rights to intervene as a matter of urgency. 92. In an undated petition, Hüsna Acar requested the Investigation Commission for Human Rights of the Turkish Grand National Assembly to examine the case of her son Salih Acar, claiming that he had been taken into detention by Captain İzzet of the Ambar gendarmerie on 6 July 1994 and that nothing had been heard from him since. Hüsna Acar sent similar petitions, also undated, to the Ankara Human Rights Centre, the Diyarbakır Governor and the General Gendarmerie Command in Ankara. 93. On 10 November 1995 the President of the Investigation Commission for Human Rights of the Turkish Grand National Assembly informed the applicant that the petition concerning Salim Acar had been registered on 3 November 1995 under no. 4467/2872, that the matter would be investigated and that he would be informed of the results of the investigation. 94. By a letter of 10 June 1996 to the Bismil public prosecutor, Hüsna Acar requested to be provided with information about the steps taken in the investigation into the abduction on 29 August 1994 of her son Mehmet Salim Acar by Captain İzzet Cural and Sergeant Ahmet Kormaz. She further claimed that, on the day her son had been abducted, two other persons – whose names she did not mention – had been abducted in the same car, that one of them had been released and that her son had initially been taken to Bismil, then to Cınar and subsequently to Diyarbakır. 95. On 5 August 1996 Hüsna Acar requested the Ministry of the Interior to take the necessary steps to find out whether her son Mehmet Salim Acar, who had been abducted in 1994 in a white taxi by two persons whose identities she did not know, was dead or alive. 96. On 23 August 1996 Hüsna Acar and Halise Acar filed a criminal complaint of abduction and disappearance with the Bismil public prosecutor. They claimed that, three days before his disappearance, Mehmet Salim Acar had quarrelled with Mehmet Açan, who was also living in Ambar, about a pump. Mehmet Açan had told Mehmet Salim that he would definitely “disappear” within three days at the most. Three days later, Mehmet Salim was taken away by Captain İzzettin, Mehmet Açan and Harun Açan. Hüsna and Halise Acar requested the public prosecutor to carry out an investigation and to hand the three perpetrators over to the courts. 97. On 25 November 1996 Meliha Dal lodged a complaint with the Diyarbakır Governor, claiming that her brother Mehmet Salim Acar had had a quarrel with the brothers Mehmet and Harun Açan. On that occasion, Harun Açan had threatened her brother with death. Three days later, her brother had been taken away by Captain İzzettin and Mehmet and Harun Açan. Meliha Dal further stated that the petitions filed by Halise and Hüsna Acar with the Bismil public prosecutor and the Ministry of the Interior had not led to any results and that the Bismil Governor and the Bismil gendarmerie authorities had not even contacted Halise and/or Hüsna Acar to discuss the matter. Meliha Dal requested the Governor to question Captain İzzettin and the brothers Mehmet and Harun Açan, as she believed that her brother might have been killed by them. 98. On 10 December 1996 the applicant sent a letter to the president of the Diyarbakır Provincial Administrative Council claiming, inter alia, that his brother Mehmet Salim Acar had been taken into detention by Captain İzzet Cural and Sergeant Ahmet Korkmaz on the basis of incorrect information provided by Harun Aca (see paragraph 142 below). On the same day, the applicant sent a similar letter to the President of Turkey, requesting him to investigate what had happened to his brother. 99. On 11 December 1996 Hüsna Acar filed a petition with the Ministry of the Interior, claiming that the Ambar villager Şakir Gün had extorted money and jewellery from her family in exchange for the release of her son Mehmet Salim. Considering that Şakir Gün was thus aware of her son's whereabouts and involved in his abduction, Hüsna Acar requested the Ministry of the Interior to intervene and investigate the matter. On the same date Hüsna Acar sent an identical petition to the President of Turkey. 2. Domestic investigation documents (a) Custody records 100. The submitted copy of the custody records of the Bismil gendarmerie for the period between 8 July and 13 November 1994 does not contain an entry in the name of Mehmet Salih Acar or Mehmet Salim Acar. (b) Preliminary investigation by the Bismil public prosecutor 101. On 29 August 1994, in an instruction written by hand at the bottom of the petition filed on that day by Hüsna Acar (see paragraph 86 above), the Bismil public prosecutor ordered the taking of a detailed statement from Hüsna Acar and the making of enquiries with the gendarmerie and the security forces. On 31 August 1994 he instructed the Bismil gendarmerie to ensure that Hüsna Acar came to his office to make a statement. 102. On 2 September 1994 Hüsna Acar made a statement to the Bismil public prosecutor. She confirmed that she had filed a petition and stated that, about ten days before 29 August 1994, her son Mehmet Salih Acar had been taken away in a taxi by two men, who were wearing civilian clothes and armed with Kalashnikov rifles. Nothing had been heard from him since. Her grandson İhsan Acar had witnessed the incident. It appeared that the men had spoken Turkish and that they had driven off in the direction of Bismil. 103. On the same day, Halise Acar also made a statement to the Bismil public prosecutor. She stated that her husband had disappeared ten or fifteen days earlier when he was in a cotton field with their son İhsan Acar. Two armed men had forced him to get into a taxi, which had driven off in the direction of Bismil. Nothing had been heard from him since. She further declared that she had been told that her husband had been with İlhan Ezer when he was taken away and that the taxi was a dark grey Renault without licence plates. 104. Also on 2 September 1994, İhsan Acar (born in 1983) was heard by the Bismil public prosecutor. He stated: “On the day of the incident, my father and I were working in the field. When we went to sit under a tree to have lunch, İlhan Ezer, who was working in the field, joined us. There was a twenty-metre distance between my father and me. At this point, a grey-coloured taxi with no number plates came and stopped near my father. The persons in the car spoke with my father. I saw them take the identity cards of my father and of the person called İlhan and then return İlhan's identity card, and I saw my father get into the taxi. This taxi immediately headed towards the village of Ambar. Later, I went home and informed my mother. As I was far away, I was unable to recognise these people, but I heard that they were speaking Turkish. These people were wearing hats and glasses. That is all I know and what I have witnessed.” 105. İlhan Ezer, who was also heard by the Bismil public prosecutor on 2 September 1994, declared: “On the day of the incident, while Mehmet Salih Acar and I were having lunch in the field below the village of Ambar, a Renault TX-model grey taxi without number plates approached us. The persons in the car asked us to hand over our identity cards. When we refused, they forced us by saying that they were the police and that we were therefore obliged to hand over our identity cards. The persons who asked for our cards had a western accent. Both of them were about 25 or 26 years old. One of them was wearing glasses. They did not give back Mehmet Salih's identity card. They said: 'Mehmet Salih will show us someone's field and then we will send him back.' That is all I know and what I have witnessed in relation to the incident.” 106. On 13 September 1994 the Bismil public prosecutor informed the Bismil gendarmerie command that, about ten days before 29 August 1994, Mehmet Salih Acar had been abducted by two unknown persons – aged 25 or 26, speaking with a western Anatolian accent and one of them wearing glasses – who had come in a gunmetal Renault TX-model taxi without licence plates. The public prosecutor instructed the gendarmerie to carry out an investigation into the persons who had abducted Mehmet Salih Acar and, when found, to bring them to his office. 107. On 25 January 1995 the Bismil public prosecutor sent a reminder to the Bismil gendarmerie command, urging the gendarmerie to speed up compliance with his instruction of 13 September 1994. 108. By a letter of 7 February 1995, the Bismil gendarmerie district commander Captain İzzet Cural informed the Bismil public prosecutor that the requested investigation had been completed. Captain Cural appended to his letter a record dated 31 January 1995, signed by the gendarmerie officers İlhan Yücel, Ahmet Uyar and Yılmaz Pala of the Bismil central gendarmerie command, stating that enquiries had been made, but that it had not been possible to identify the persons who had abducted Mehmet Salih Acar. 109. On 15 March 1995 the Bismil public prosecutor instructed the Bismil gendarmerie command to conduct a thorough investigation into the alleged abduction of Mehmet Salih Acar and, if this had in fact taken place, to tell him who was responsible and whether it had been politically motivated. He sent a reminder of this instruction to the Bismil gendarmerie command on 17 May 1995. 110. By a letter of 22 June 1995, the Bismil gendarmerie district commander Captain İzzet Cural informed the Bismil public prosecutor that the investigation requested on 25 January 1995 had been completed. Captain Cural appended to his letter a record dated 20 June 1995, signed by the gendarmerie officers İlhan Yücel, Ismail Özden and Ahmet Uyar of the Bismil central gendarmerie command, stating that it had not been possible to locate or identify the persons who had abducted Mehmet Salih Acar. 111. On 14 August 1995, acting on the petition filed on 27 July 1995 by the applicant (see paragraph 90 above), the Ministry of Justice requested the Bismil public prosecutor, as a matter of urgency, to provide information about Mehmet Salim Acar, who had allegedly been taken into detention at the Bismil gendarmerie command in August 1994 and who had not been allowed to see his relatives since, and about the legal steps taken in his case. 112. By a letter of 21 August 1995, the Bismil central gendarmerie station commander Sergeant İlhan Yücel informed the Bismil district gendarmerie command that it was not known whether the abduction of Mehmet Salih Acar had, in some way or other, been politically motivated, that it was not known who had abducted him and that no news from him had been received since his abduction. Sergeant Yücel appended to his letter a record dated 14 August 1995, signed by himself, the gendarmerie officer Mustafa Candar and the Ambar muhtar[4] Mehmet İhsan Tuncay, with the same contents as the letter. 113. Also on 21 August 1995 and in reply to the request of 14 August 1995, the Bismil public prosecutor informed the Ministry of Justice that it was asserted that Mehmet Salih Acar had been abducted about ten days before 2 September 1994 by two armed and unidentified persons, who had forced him to get into a taxi while he was working in the fields with his son İhsan Acar. The responsible authorities had been contacted in order to proceed with the search for him. However, the persons who had abducted Mehmet Salih Acar had not, to date, been identified and the investigation of the case was ongoing. 114. On 18 September 1995 the Bismil public prosecutor instructed the Bismil gendarmerie command to ensure that Harun Acar from the village of Ambar reported to his office in connection with the investigation into the disappearance of Mehmet Salim Acar. On 21 September 1995 the Bismil gendarmerie district command instructed the Bismil central gendarmerie command to find Harun Acar's address. 115. On 29 September 1995 Sergeant İlhan Yücel, the Bismil central gendarmerie commander, informed the Bismil gendarmerie district command that Harun Acar did not live in Ambar, that he was currently serving in an anti-terrorism unit and that his current address could be obtained from the Derik and Mazıdağı gendarmerie district commands. Sergeant Yücel appended to his letter an undated report, signed by the gendarmerie officers Mustafa Candal and Özay Yalbul, and the Ambar muhtar, Mehmet İhsan Tuncay, stating that Harun Acar had left no address when he was released from Diyarbakır E-type Prison but that he could be found by asking the Derik or Mazıdağı gendarmerie command. This information was transmitted to the Bismil public prosecutor on 10 October 1995. 116. On 12 October 1995 the Ministry of Justice requested the Bismil public prosecutor to provide information about the steps taken in the investigation into the disappearance of Mehmet Salih Acar, which formed the subject matter of a complaint filed by the applicant with the European Commission of Human Rights, in which he alleged that his brother had been taken into custody in Bismil on 20 August 1994 and that he was being tortured. The Bismil public prosecutor was asked in particular to inform the Ministry if an investigation into the matter had been opened and, if so, whether it had been opened automatically or in response to a request in respect of Mehmet Salih Acar. 117. On 16 October 1995 the Bismil public prosecutor sent a reminder to the Bismil gendarmerie command of his instruction of 18 September 1995. On the same day he instructed the Bismil gendarmerie command to ensure that Halise Acar and all gendarmes who had served at the Bismil gendarmerie command at the material time and who were named “Ahmet” reported to his office in order to make statements. Finally, he instructed the Bismil gendarmerie command to provide him with the current address of Captain İzzettin Cural, who had left Bismil after being posted elsewhere. 118. On the same day the Bismil public prosecutor informed the Ministry of Justice that an investigation into the disappearance of Mehmet Salih Acar had been opened, in which statements had been taken from the complainants Halise and Hüsna Acar and from the witnesses İhsan Acar and İlhan Ezer, and that steps had been taken to obtain a statement from Captain İzzettin, NCO Ahmet and Harun Aça, and an additional statement from Halise Acar. He further informed the Ministry that, as it was possible that Mehmet Salih Acar had been kidnapped, letters had been written to the central police and gendarmerie authorities requesting that Mehmet Salih Acar be found. 119. On 20 October 1995 the Bismil public prosecutor requested the public prosecutors in Derik and Mazıdağı to summon and take a statement from Harun Aça in relation to the disappearance of Mehmet Salih Acar. 120. On 3 November 1995 the Bismil gendarmerie district command informed the Bismil public prosecutor of the current address of Captain İzzet Cural. 121. On 6 November 1995 the Bismil gendarmerie district command informed the Bismil public prosecutor that, in response to his request of 16 October 1995, Sergeant Ahmet Uyar had been sent to his office. In a statement of the same day to the Bismil public prosecutor, Ahmet Uyar declared, in his capacity as a person suspected of an offence, that he had no information about the incident and that he had not witnessed it. He had taken up his duties at the Bismil district gendarmerie eight days before the incident took place. The person who had served before him was Sergeant Ahmet Korkmaz, who had been killed by the PKK. Ahmet Babayiğit had also served before him, but had had a road accident and was currently on sick leave. Ahmet Uyar denied having been involved in the incident and stated that he did not know the person mentioned by the public prosecutor. 122. On 10 November 1995 the Mazıdağı gendarmerie district command informed the Mazıdağı public prosecutor that Harun Aça did not serve at that command. 123. On 16 November 1995 the Bismil gendarmerie district command informed the Bismil public prosecutor of the current address of Harun Aça, who had been found to serve at the Derik gendarmerie district command. 124. On 23 November 1995 Harun Aca made a statement at the Bismil gendarmerie central command, in which he declared that he had left Ambar in 1988. He had later joined the PKK until he had surrendered himself voluntarily on 4 April 1994 to the Derik gendarmerie district command. Owing to his participation in military anti-terrorist operations as a guide, it was impossible for him to return to Ambar. He had only done so on very rare occasions and for reasons of security had then always stayed on the premises of the Bismil gendarmerie district command. His parents, his spouse and family lived in Ambar. They did not have a hostile relationship with the other families living there, but owing to his personal position his family had become a PKK target. He confirmed that Mehmet Salim Acar and his family also lived in Ambar, but he had not seen them since 1988 and no longer had any contact with them. For security reasons, he would only enter and leave Ambar during the day and in secret, and was particularly careful not to be seen by anyone. He denied having given any information about Mehmet Salih Acar to gendarmerie captain İzzet Cural or to NCO Ahmet, as he had had no mission to Bismil and did not know what was going on there. The PKK had incurred many losses in the provinces of Mardin and Şırnak on the basis of information provided by him and he was convinced that the PKK had organised the abduction as a result of those losses. He further denied having apprehended anyone with the assistance of gendarmes serving in the Bismil district. In any event, he had no such powers. His function was limited to giving information to the security forces, which he could not provide in respect of the Bismil district or even the Diyarbakır province as he did not have any. 125. Also on 23 November 1995 Harun Aca, in his capacity as a person suspected of an offence, made a similar statement to the Bismil public prosecutor. In addition, Harun Aca declared that he had a document proving that he had participated in an operation conducted in the Kelmehmet mountains near Mardin between 19 July and 6 September 1994, and submitted, inter alia, a letter of commendation from the command of the Mardin gendarmerie commando battalion at Kızıltepe certifying that he had participated in an operation conducted between 19 July and 20 August 1994 in the Şırnak and Mount Cudi area. He again denied that he had provided any information to Captain İzzet or NCO Ahmet and maintained that he knew nothing about the disappearance of Mehmet Salim Acar, whom he had not seen since 1988. 126. On 30 November 1995 the Bismil public prosecutor requested the Ankara Chief Public Prosecutor to summon and take a statement from Captain İzzet Cural in relation to the applicant's claim that his brother Mehmet Salih Acar had been abducted in August 1994 by Captain İzzettin and NCO Ahmet of the Bismil gendarmerie on the basis of information provided by Harun Aça. 127. On 19 December 1995 the Bismil public prosecutor requested the Bismil gendarmerie command to provide him with the current address of Sergeant Ahmet Babayiğit for the purposes of obtaining a statement from him. On 25 December 1995 Captain İrfan Odabaş, the Bismil gendarmerie district commander, provided the Bismil public prosecutor with Ahmet Babayiğit's current address. 128. On 27 December 1995 Captain İzzet Cural, in his capacity as a person suspected of an offence, made a statement to the Ankara public prosecutor Osman Aşrafoğlu in which he declared that, in response to a report that Mehmet Salih Acar had been abducted, an investigation by the gendarmerie had been carried out which had not resulted in finding the abducted person or in identifying the perpetrators. He further stated that he did not know where Mehmet Salih Acar currently was. 129. On 8 January 1996 the Bismil public prosecutor took a further statement from Halise Acar, who maintained the account contained in her previous statement and complaint. She added that, three days before his disappearance, her husband had had a quarrel with Mehmet Aça about a water pump. Mehmet Aça was the brother of Harun Aça, a former PKK member who had later joined the security forces, for whom he was still working. That is why she believed that her husband had been taken away by the security forces acting on instructions given by Harun Aça. 130. On 9 January 1996 the Bismil public prosecutor requested the Ankara Chief Public Prosecutor to summon and take a statement from Ahmet Babayiğit in relation to the applicant's claim that his brother Mehmet Salih Acar had been abducted in August 1994 by Captain İzzettin and NCO Ahmet of the Bismil gendarmerie on the basis of information provided by Harun Aça. 131. On 26 January 1996 Captain İrfan Odabaş, the Bismil gendarmerie district commander, informed the Bismil public prosecutor, in reply to his request of 16 October 1995, that no officers or NCOs called Ahmet were currently serving under his command. Captain Odabaş further informed the Bismil public prosecutor that the expert gendarmerie sergeant Ahmet Uyar had been ordered to report to the public prosecutor's office as he was present, that the expert sergeant Ahmet Babayiğit was currently on sick leave and that Ahmet Korkmaz had been killed on 31 October 1994 in an armed clash in Bismil. 132. On 5 February 1996, at the request of the Bismil public prosecutor, Ahmet Babayiğit made a statement at Dikmen police station to the police constable Mehmet Cabbar. He declared that he knew nothing about the alleged abduction of Mehmet Salih Acar by Captain İzzettin and NCO Ahmet of the Bismil gendarmerie apparently acting on instructions given by Harun Aça. He did not remember any incident of that nature. He further stated that he did not at present remember the persons named Captain İzzettin and NCO Ahmet. 133. In a certified document, dated 25 February 1996 and signed by the Mardin gendarmerie commando battalion commander Major Hurşit İmren, it is stated that Harun Aça, who had been serving as a village guard under the orders of the Derik gendarmerie district command since 27 May 1994, had participated in operations carried out from 19 July to 6 September 1994 by the Mardin gendarmerie commando battalion command in the Şırnak province and the Kelmehmet mountains. 134. In the Bismil public prosecutor's decision of non-jurisdiction of 17 June 1996, the stated offence is abuse of authority. Mehmet Salih Acar is mentioned as the victim of this offence, Hüsna and Halise Acar and the applicant as the complainants, and the gendarmes İzzet Cural and Ahmet Babayiğit and the village guard Harun Aça as the accused. Since, at the material time, İzzet Cural and Ahmet Babayiğit were serving at the Bismil gendarmerie and Harun Aça was working with the gendarmerie, the Bismil public prosecutor held that he was not competent to deal with the matter and that, pursuant to section 15(3) of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991), the case was to be determined by the Diyarbakır Provincial Administrative Council. (c) Proceedings before the Diyarbakır Provincial Administrative Council 135. On 26 June 1996 the Diyarbakır Provincial Administrative Council transmitted the decision of non-jurisdiction of 17 June 1996 and the relevant case file on the preliminary investigation carried out by the Bismil public prosecutor to the Diyarbakır provincial gendarmerie command, requesting it to examine the facts on which this decision was based, to conduct – if necessary – an investigation and to communicate the results thereof. 136. On 24 September 1996, in connection with the applicant's petition of 27 July 1995 (see paragraphs 90 and 111 above), Captain İrfan Odabaş took a statement from Harun Aça who declared that between 19 July and 6 September 1994 he had participated in the security forces' operations in the provinces of Şırnak and Mardin. He denied the accusation against him, stating that he had nothing to do with the matter and that he had no information about it. He added that, since he had taken up his duties with the gendarmerie, he had only been able to go on leave when given permission to do so and that his leave record could be checked at his duty station. 137. On 9 December 1996, in connection with the applicant's petition of 27 July 1995, İrfan Odabaş took statements from İlhan Ezer, İhsan Acar, Hüsna Acar and Halise Acar. 138. İlhan Ezer made the following statement: “On the day of the incident I was eating lunch in the field below Ambar with Mehmet Salih Acar, who has been abducted. A grey Renault TX-model car without licence plates with two people in it drove towards us. They asked for our identity cards. After looking at them, they returned my card, but did not return that of my friend Mehmet Salih Acar. They told us to get into the car. I said that I definitely would not get into a car belonging to people I did not know. Mehmet Salih Acar got into the car without making any objection. The men said: 'Mehmet Salih will show us a field. We will bring him back', and they drove off towards Ambar. I then asked Mehmet Salih's son whether he knew the men. He said 'No', so I told him to go to the village and tell the people that strangers had taken his father away. The child went to the village. I know Captain İzzet and NCO Ahmet very well. If I saw them in the village, I would recognise them. The men who came were definitely not them. If they had been, I would have recognised them. I had not seen the men who abducted Mehmet Salih Acar before and did not recognise them. One was about 25 to 26 years old and the other 18 to 20. Both were wearing hats and the older one was wearing glasses and had a moustache.” 139. İhsan Acar's statement to İrfan Odabaş reads: “On the day of the incident I was working with my father in the field we leased. Our neighbour İlhan Gezer was working alongside us on his own land. We had gone under a tree in our field to eat our lunch, but there was a distance of about ten metres between my father and myself. Then a grey Renault without licence plates with two people in it came towards us. It stopped by my father. İlhan Gezer also came over. They began to talk to the two of them. I was watching because I was further away. They asked my father and Uncle İlhan for their identity cards. They then returned İlhan Gezer's card. The conversation between them was in Turkish. Then, they took my father towards Ambar. There was no argument or struggle when they took him away. The men who came had a Kalashnikov rifle. They wore hats and the older one had a moustache. Then İlhan Gezer asked me if I knew them. After answering that I did not know them, I ran to inform the village. Since that day we have not heard anything from my father.” 140. Hüsna Acar made the following statement: “Mehmet Salim Acar is my son. He has been missing since the date of the incident. I have no direct knowledge of the disappearance of my son Mehmet Salim Acar. I only know what my grandson İhsan Acar told me when we came to the village on the day of the incident. I do not know anything more than this. I do not know who abducted my son Mehmet Salim Acar or for what reason. I do not think that the gendarmerie took my son. The only thing that I want from my State is for my son to be found dead or alive and to be handed over to me. Apart from this, I have no complaint against Captain İzzet or Expert Sergeant Ahmet. I do not know these people and I have no feelings of animosity towards them. Because my son is not a terrorist, we had not had any dealings with the gendarmerie until then. I want those who abducted my son to be found and punished. Apart from that, I do not wish to complain about anyone.” 141. Halise Acar made the following statement to İrfan Odabaş: “Mehmet Salim Acar, who has gone missing, is my husband. On the day of the incident he had gone to work in the field with my son İhsan Acar. My son later came running back to the house saying that Mehmet Salim Acar had been made to get into a car by two people whom he did not know and had driven off towards Ambar. I did not see the abduction of my husband Mehmet Salim Acar myself. I do not know who took my husband or why. We have been unable to get any news from him. All I want from the State is that they find my husband dead or alive and hand him over to me. I am making a formal complaint against those who abducted my husband. But I have no complaint against Captain İzzet or Expert Sergeant Ahmet as I do not believe that they abducted my husband. At the moment I am living with my mother-in-law and her daughter at [address]. My mother-in-law's son Tahsin Acar works in Sweden and has filed various petitions in order to find my husband.” 142. On 10 December 1996 the applicant wrote a letter to the President of the Diyarbakır Provincial Administrative Council, claiming that his brother Mehmet Salim Acar had been taken into detention by Captain İzzet Cural and Sergeant Ahmet Korkmaz on the basis of incorrect information provided by Harun Aca. The applicant further stated that an officer of the anti-terrorism branch of the Diyarbakır police had investigated the case in July 1995 and that the Bismil gendarmerie had admitted that his brother was being held by them. However, Captain İzzet Cural had later told this police officer that the person who was detained was not Mehmet Salim Acar but someone called Mahmut Acar, from Nusaybin. The applicant also described a telephone conversation he had had on 22 September 1995 with Captain İrfan Odabaş, who had replaced Captain İzzet as commander of the Bismil gendarmerie and who had asked the applicant whether a ransom had been demanded. The applicant had told Captain Odabaş that no such demand had been made, but that he would be willing to pay a ransom. On 27 September 1995 the applicant's family had been contacted by someone demanding a ransom in exchange for his brother's release. On 5 October 1996 another person – identified by the applicant as Namık Keser, from Diyarbakır – contacted the family and said that Mehmet Salim Acar was being held by the Diyarbakır gendarmerie and would be released if the applicant agreed to work as an informer for the authorities, which the applicant refused to do. 143. On 25 December 1996 İrfan Odabaş took a statement from Ahmet Babayiğit, who declared that he had not seen the abduction of Mehmet Salim Acar and that he knew nothing about it. 144. On 1 January 1997 İrfan Odabaş took a statement from Captain İzzet Cural, who declared: “We received a report that Mehmet Salim Acar from Ambar, which lies within our command's jurisdiction, had been abducted by unidentified persons. I was at the unit centre when the report was received. I immediately gave the necessary information to the authorities concerned. We started to conduct the necessary searches at the entrances to and the exits from Bismil and Ambar, but we could not find the men in question. I do not know who abducted Mehmet Salim Acar or for what purpose. In spite of all our searches, we were unable to find the perpetrators or the victim. As a result of our search and investigation in and around the village, we established that he had been abducted by two persons, but we were unable to establish their identities. We definitely did not apprehend or detain this man, as alleged. It has still not been possible to obtain any information about the abduction of Mehmet Salim Acar.” 145. İrfan Odabaş submitted the report on his investigation to the Diyarbakır Provincial Administrative Council on 15 January 1997. The report names Tahsin Acar as the complainant, İzzet Cural, Ahmet Babayiğit and Harun Aca as the persons accused of the offence of abuse of authority, and İlhan Ezer, Halise Acar, İhsan Acar and Hüsna Acar as witnesses. The report contains, inter alia, a summary of the statements taken from the accused and the witnesses, and Captain Odabaş's advisory opinion that the applicant's claims remained unsubstantiated and found no support in the statements obtained, which indicated that the accused had not been involved. He therefore concluded that there was no need to open a judicial or administrative inquiry and that a decision not to prosecute would be appropriate. 146. In its unanimous decision of 23 January 1997, in which Hüsna Acar is named as the complainant, and Captain İzzet Cural, NCO Ahmet Babayiğit and Harun Aca as defendants, the Diyarbakır Provincial Administrative Council found that the accusation of abuse of authority allegedly committed by former Bismil gendarmerie district commander Captain İzzet Cural, NCO Ahmet Babayiğit and temporary village guard Harun Aca by having abducted Mehmet Salih Acar in August 1994 was not supported by evidence against the defendants that could be regarded as sufficient for instituting proceedings against them. It therefore decided to reject the request to take proceedings, in accordance with section 5 of the Law on the prosecution of civil servants and Article 164 of the Turkish Code of Criminal Procedure. 147. In its unanimous decision of 14 January 2000, following ex officio appeal proceedings, the Second Division of the Supreme Administrative Court held that the evidence available was insufficient to send the defendants for trial and thus upheld the decision of 23 January 1997 by the Diyarbakır Provincial Administrative Council. (d) Other domestic investigations 148. On 24 August 1995 Minister Algan Hacaloğlu informed the applicant that his petition of 26 July 1995 (see paragraph 89 above) had been transmitted to the Diyarbakır Provincial Governor. 149. On 8 September 1995, on the basis of the applicant's allegations set out in his petition of 26 July 1995, statements were taken from İhsan Acar, İlhan Ezer, Halise Acar and Hüsna Acar at the Bismil central gendarmerie command. 150. İhsan Acar made the following statement: “I live in the village of Ambar with my family. Tahsin Acar is my paternal uncle. Mehmet Salim Acar is my father. Last summer we were irrigating the cotton field. I, my father and İlhan Ezer from the village of Üçtepe decided to take a break for lunch in the shade of a tree. A car approached us. It was a dark grey or grey Renault car without licence plates. It stopped near to us. Two men got out of the car. One was short and wearing a hat. The other one was young, tall and wearing a hat and glasses. They asked my father and İlhan from Üçtepe to show their identity cards. They refused, saying: 'We will not show you our identity cards because we do not know who you are.' The two men replied that they were from the police. So my father and İlhan showed them their identity cards. The two men looked at the cards and gave İlhan his card back. They did not give my father his card back. They spoke to us in Turkish. They said to my father: 'Get into the car with us, you will show us a field.' They made my father get into the car by force. They told me: 'We will bring your father back in half an hour.' They left and did not come back. I ran home to warn my mother and I told her what had happened. My mother left in order to tell the muhtar about what had happened. ... I had never seen those men before. I have never seen them in the area. They do not resemble any person living in my village. Moreover, they never got out of the taxi. It was my father and İlhan who approached the car in order to talk to them. They were not military or gendarmes. They both had moustaches. They had weapons under the seats of the car. Afterwards, we went to the Bismil tribunal and made statements. A search for my father was begun, but, to date, it has not led to any news from him.” 151. İlhan Ezer declared: “I live in the village of Üçtepe. I do not share any property with Mehmet Salim Acar, but we have a cotton field in the village of Ambar. We planted cotton in the same place as him. I do not know his brother Tahsin Acar. I only heard his name in connection with the letter in question. This is what I can tell you about the events. In August last year I was irrigating the cotton we had planted. I went in the shade of a tree to have lunch. I noticed a dark grey-coloured taxi coming from the direction of Ambar. The vehicle had no licence plates. It stopped near to us. I was with Mehmet Salim Acar and his son. We were asked to show our identity cards. We refused, as we did not know these two men. A discussion took place between us and the two men, but we still did not show our identity cards. They said they were policemen. So we asked them to show us their police identity papers. They did not do so. They took our identity cards and told us that they would give them back. They looked at them and asked us to get into the car. We did not get into the car. They forced us, but I continued to refuse to get in. I noticed that at that moment Mehmet Salim Acar kept silent, he did not speak. They returned my identity card to me and the card of Mehmet Salim Acar. Subsequently, Mehmet got into the car. They told me: 'Your friend will accompany us to a field and then he will come back.' He left and did not return. I had never seen those two men before. They were dressed in civilian clothes. I did not know them. They were both wearing hats[5]. I had never seen them before in the area. ... The two men were not officers of the Bismil gendarmerie district command. As I have already pointed out, I had never seen them before. Nor had Mehmet Salim Acar; he did not behave as if he knew them.” 152. Halise Acar stated that on the day in question her husband Mehmet Salim Acar and their son İhsan had left in the morning to work in a field close to the neighbouring village of Sarıtoprak. Around noon, her son had come running home, telling her that his father had been taken away in a car without licence plates. He also told her that there had been two men in the car. Halise Acar further stated that this Renault taxi had already been seen several times in the village. Her daughter had told her that she had seen her father in that car on the Dicle river bank and that she had thought that he was going somewhere. Halise Acar lastly stated that her family had alerted all the administrative authorities and the Bismil gendarmerie that her husband had disappeared, that they had made statements about the matter to the Bismil public prosecutor and that her husband had been searched for but without any results to date. 153. Hüsna Acar declared that she was the mother of Mehmet Salim Acar, that she was living with his family and that, in August 1994, her son had left in the morning to irrigate the cotton field. Her grandson, who had accompanied Mehmet Salim, had come running home around noon, saying that a car had stopped close to his father, that he had been told that they were going to look at a field and that they would return, that he had waited for an hour and that nobody had come back. Hüsna Acar further stated that nothing had been heard from her son since, that the Bismil gendarmerie had been informed and that the Bismil public prosecutor had summoned and questioned her and her relatives. 154. On 3 October 1995 the Ministry of Foreign Affairs, acting on the Commission's decision of 4 September 1995 (see paragraph 4 above), requested the Ministry of Justice and the Ministry of the Interior to gather and transmit information about the case of Mehmet Acar who, according to his brother Tahsin Acar, had been forcibly taken away by plain-clothes police officers and placed in detention. The respective ministries were requested to inform the Ministry of Foreign Affairs whether Mehmet Acar had been taken into detention, whether any proceedings had been taken against him and, if not, whether there were indications that he had been abducted by or joined the PKK. 155. By a letter of 22 November 1995, the Diyarbakır Provincial Governor, Mehmet Doğan Hatıpoğlu, informed the Ministry of the Interior that an investigation into the facts alleged by the applicant had been carried out. The conclusions of this investigation were that Mehmet Selim Acar had not been apprehended by Captain İzzet Cural and NCO Ahmet Korkmaz (deceased in the meantime) or by Hasan Acar. No mention of a taking into custody of Mehmet Selim Acar had been found in the custody records of the Bismil gendarmerie district command. The victim had been abducted by two unknown persons claiming to be policemen in a dark grey-coloured taxi without licence plates. The subsequent investigation of these leads had not led to any results. The matter had been raised before the judicial authorities and the Bismil public prosecutor had conducted the necessary investigations. The two eyewitnesses to the incident, İhsan Acar (Mehmet Selim Acar's son) and İlhan Ezer had made statements in which they had declared that they did not know the identities of the persons who had abducted Mehmet Selim Acar, that they knew gendarmerie captain İzzet Cural as well as the other officers of the gendarmerie, and that the two men who had abducted Mehmet Selim Acar were certainly not gendarmes. The Governor finally stated that Tahsin Acar's other allegations concerning the detention of his brother at the Bismil gendarmerie command thus remained wholly unfounded. 156. In a letter dated “November 1995”, the Diyarbakır gendarmerie regional commander, referring to a letter of the General Gendarmerie Command of 7 November 1995 and a letter of the provincial gendarmerie command of 24 November 1995, informed the applicant – in reply to a complaint filed by Hüsna Acar and/or the applicant to the General Gendarmerie Command (see paragraph 92 above) – that, according to the results of an investigation that had been carried out, Mehmet Selim Acar had not been apprehended by gendarmes but had been abducted in a car without licence plates by two unknown persons claiming to be plain-clothes policemen. 157. Appended to this letter were statements taken from İhsan Acar and İlhan Ezer, who had seen the incident, including a certified statement made by İlhan Ezer on 25 October 1995 to the Bismil notary public. This statement reads: “While we were working in the cotton field situated within the boundaries of the village of Ambar in the district of Bismil, province of Diyarbakır, we took shelter in the shade of a tree in order to take a rest. A taxi arrived from the direction of Ambar. It was a Renault TX-model car without licence plates. Mehmet Salim Acar, his son İhsan Acar and I were sitting in the shade. We were asked to show our identity cards. We refused. The men then announced that they were policemen and took our identity cards. After looking at them, they gave them back. They asked us to get into the car. İhsan Acar and I were not willing to get into the car. Mehmet Salih Acar got into the car without objecting. They told us: 'Your friend is going to accompany us to a field and he will return later.' We have not had any news from our friend since then. I had never seen the men who arrived in the car before, I do not know them. It is being said that they were gendarmerie captain İzzet Cural and NCO Ahmet, of the central gendarmerie. I know these two men personally; they are not the ones who abducted my friend.” 158. On 18 December 1995, in reply to the petition filed by Hüsna Acar and/or the applicant (see paragraph 92 above), the President of the Investigation Commission for Human Rights of the Turkish Grand National Assembly informed the applicant that the petition registered under no. 4467/2872 had been examined. The Governor of Diyarbakır had conducted an investigation into the matter, in the course of which statements had been taken from İlhan Ezer and İhsan Acar, who had both stated that gendarmerie captain İzzet Gürlo and NCO Ahmet Korkmaz had not taken Mehmet Salim Acar away but that he had been abducted by two unknown men claiming to be police officers, who had made him get into a car without licence plates. The applicant was further informed that an investigation had been opened by the Bismil public prosecutor and was still ongoing. 159. In a letter of 14 May 1996 sent by fax, apparently on the basis of the applicant's reply of 20 March 1996 to the observations submitted by the Government to the Commission (see paragraph 4 above), the Ministry of Justice requested the Bismil public prosecutor to examine the various allegations set out in this reply of 20 March 1996. 160. On the same day the Bismil public prosecutor informed the Ministry of Justice that the investigation into the incident referred to by the applicant had been registered under no. 1994/445 in the preliminary investigation register at the Bismil public prosecutor's office. He further informed the Ministry that, in the course of this investigation, statements had been taken from the complainants Halise and Hüsna Acar, from the witnesses İhsan Acar and İlhan Ezer, and from the accused, Sergeant Ahmet Uyar, former Bismil gendarmerie commander İzzet Cural and Harun Aça, and that a request for judicial assistance had been sent to the Ankara Chief Public Prosecutor for the purposes of obtaining a statement from Ahmet Babayiğit. The Bismil public prosecutor lastly stated that, upon receipt of Ahmet Babayiğit's statement, he would issue a decision. 161. On 21 August 1996 the Ministry of the Interior transmitted Hüsna Acar's petition of 5 August 1996 (see paragraph 95 above) to the Diyarbakır police headquarters, requesting the latter to investigate the allegations set out in the petition, to institute the required proceedings and to communicate the results of the investigation to the Ministry of the Interior and to Hüsna Acar. 162. On 29 August 1996, referring to an order of 21 August 1996, the Diyarbakır police headquarters informed the Bismil District Governor that Hüsna Acar's daughter Meliha Dal was living in Diyarbakır and transmitted a statement that had been taken from her on 29 August 1996 in connection with the petition filed with the Ministry of the Interior on 5 August 1996 by Hüsna Acar. 163. In her statement Meliha Dal declared that she had lived in Diyarbakır for seven years. She stated that Mehmet Açan, who – like her older brother Mehmet Salim Acar – was living in Ambar, had had a quarrel with her brother in the café about a water pump in the course of which Mehmet Açan had threatened her brother with “disappearance” within three days. Three days later the Bismil gendarmerie station commander, Captain İzzettin, and another person had come to the village in a car without licence plates and asked for Mehmet Salim Acar. He was told that Mehmet Salim was in the cotton field. Captain İzzettin had then gone to the cotton field, where her brother was with his son İhsan Acar and a man called İlhan. Captain İzzettin asked Mehmet Salim Acar to show him the way to a place, made Mehmet Salim get into the car and left. Nothing had been heard from Mehmet Salim since. According to Meliha Dal, Captain İzzettin had handed Mehmet Salim Acar over to the brothers Mehmet and Harun Açan in return for money. Her mother Hüsna and her sister-in-law Halise knew this but, as Captain İzzettin was involved and as he was a State official, they could not tell the truth as they were frightened of being killed as well. Meliha Dal had heard from them what she was now stating. 164. By a letter of 25 December 1996, sent in reply to Hüsna Acar's petition of 11 December 1996 (see paragraph 99 above), the Office of the President of Turkey informed Hüsna Acar that an instruction had been issued to the Batman Provincial Governor to investigate her claim and to inform the Office of the President of the result of the investigation. Her petition was transmitted to the Batman Provincial Governor on 27 December 1996. On 2 January 1997 the Office of the Prime Minister wrote a letter with a similar content to Hüsna Acar in respect of another petition she had sent on 11 December 1996. 165. On 17 January 1997 the office of the Governor of Diyarbakır informed Meliha Dal, in reply to her petition of 25 November 1996 (see paragraph 97 above), that an investigation had been conducted. According to the findings of this investigation, Mehmet Selim Acar had been abducted from his field in July 1994 by two unknown armed persons. The gendarmerie district command had been informed about the matter and had carried out an investigation. According to statements obtained from witnesses, the two perpetrators were unknown in the region. The witnesses further specified that they personally knew Captain İzzet Cural, NCO Ahmet Korkmaz and Harun Aca and that these three men were definitely not among the perpetrators. When the Bismil gendarmerie command had been informed of the abduction, it was Captain İzzet Cural himself who had given the necessary instructions, and the investigation conducted by the Bismil public prosecutor was currently ongoing. 3. Documents concerning developments after 14 January 2000 166. On 16 February 2000 Meliha Dal informed the Diyarbakır public prosecutor that she had seen her brother Mehmet Salih Acar on an NTV news broadcast on 3 February 2000. Her brother's name and surname had been mentioned in this broadcast. It was reported that her brother and two others had been apprehended in Diyarbakır and taken into detention in Muş. She requested the Diyarbakır public prosecutor to investigate the matter and to inform her whether her brother was alive or dead. She sent an identical petition to the Governor of Diyarbakır on 18 February 2000. 167. On 24 March 2000 the applicant submitted a petition to the President of Turkey in relation to the disappearance of his brother Mehmet Salim Acar. In this petition, the applicant stated that, in the NTV news broadcast on 3 February 2000 around 11 p.m., it had been reported that three persons had been apprehended and taken into detention in Muş and that one of them was called Mehmet Salih Acar. His family had then applied to the Bismil police, the Bismil public prosecutor, the Governor of Diyarbakır, the public prosecutor at the Diyarbakır National Security Court, the Diyarbakır anti-terrorism police authorities and the Diyarbakır provincial gendarmerie authorities. They were told by the anti-terrorism branch that Mehmet Salim Acar did not wish to see them and they were not given any information about his whereabouts or his condition. The applicant requested the President to intervene in order to find out what had happened to his brother. 168. In a written statement dated 27 March 2000, Meliha Dal declared that she had gone to the Bismil public prosecutor to enquire about her brother Mehmet Salim Acar. She was told that three men by the name of Mehmet Salim Acar had been apprehended but that their particulars (parents' names, date and place of birth) did not match those of her brother. When she left the public prosecutor's office, the latter's clerk, Mehdi, told her that her brother was alive, that he was in the hands of the State and that he had been sent into exile. He further told her that they had scared her brother by threatening to destroy his family and that this was why he was concealing himself from them. 169. By a letter of 18 April 2000, Meliha Dal informed the Diyarbakır public prosecutor that two men had been sent to her house and that she had made statements about having seen her brother on television and having heard his name on television during a news broadcast in which it was reported that three men had been apprehended in Muş. The public prosecutor had, on her behalf, written and sent a petition to Muş. The public prosecutor had said at the end of their meeting that, as far as he understood, her brother was in the hands of the authorities in Muş. 170. By a letter of 19 April 2000, the applicant's representative informed the European Court of Human Rights that Meliha Dal, Hüsna Acar and Halise Acar had been watching the news on NTV on 3 February 2000 around 11 p.m. when the newsreader announced that four men had been apprehended in Diyarbakır, one of whom was named as Mehmet Selim Acar. Pictures of the apprehended men had been shown and they had recognised Mehmet Selim Acar as one of them. The women had continued to watch television all night and they had seen him again the following day at 8 a.m. The applicant's representative further informed the Court that, on 4 February 2000, the three women had gone to the Bismil public prosecutor to report their sighting on television of Mehmet Selim Acar and that, on 16 February 2000, Meliha Dal had filed a petition about the matter with the Diyarbakır public prosecutor and, on 18 February 2000, with the Governor of Diyabakir. The family had further attempted to obtain a video recording of the NTV news broadcast of 3 February 2000, but without success. Referring to the applicant's petition of 24 March 2000 to the President of Turkey, the applicant's representative finally informed the Court that, so far, no information had been obtained from the authorities contacted by the applicant about the whereabouts of Mehmet Selim Acar. 171. Appended to this letter were, inter alia, Meliha Dal's petitions of 16 and 18 February 2000 (see paragraph 166 above), a statement dated 23 March 2000 in which Meliha Dal had declared that she had seen her missing brother on television on 3 February 2000, the applicant's petition of 24 March 2000 (see paragraph 167 above), Meliha Dal's statement of 27 March 2000 (see paragraph 168 above), an undated statement by Meliha Dal in which she declared that she had seen her brother Mehmet Salim Acar on a television news broadcast on 1 February 2000 around 11 p.m. and 2 February 2000 around 8 a.m., an undated statement by Halise Acar stating that she had seen her husband Mehmet Salih Acar on television one day, and an undated statement by Hüsna Acar stating that, quite a long while after his disappearance, she had seen her son Mehmet Salih Acar on television. 172. On 28 April 2000, having taken note of the letter of 19 April 2000 and the appended documents, the Court requested the Government to submit a copy of the NTV news broadcasts referred to by the applicant's representative, to confirm that Mehmet Salim Acar had in fact been shown and named during these broadcasts, to inform the Court of the circumstances of Mehmet Salim Acar's arrest, and to confirm whether he was currently being detained and, if so, to indicate in which detention facility. 173. By a letter of 22 May 2000, in response to the Court's request of 28 April 2000, the Diyarbakır Chief Public Prosecutor informed the Ministry of Justice that a person named Mehmet Selim Acar (son of Süleyman and Pevruze, born in 1965 in Sivrice) had been detained on 9 December 1996 and was currently serving a prison sentence in Gaziantep, and that a person named Salih Acar (son of Musa and Besnadan, born in 1979 in Batman) had been detained on 19 April 2000 and was currently being held in pre-trial detention in Batman. 174. On 30 May 2000, in response to the complaint filed by Meliha Dal, the Diyarbakır public prosecutor decided not to open an investigation. This decision reads: “The complainant stated in her petition that her brother had disappeared six years ago and that nothing had been heard from him since, that she recognised one of the men shown on a news programme in February about persons apprehended during operations conducted against the terrorist organisation Hizbullah, that this man's name was the same as her brother's, and that she wished to be given the opportunity to watch a video recording [of the news broadcast] so that she could identify her brother. It has been stated in the Muş Chief Public Prosecutor's decision of non-jurisdiction dated 2 May 2000 that the person detained in the province of Muş – a man called Mehmet Salih Acar, born in 1964 and the son of Yahya and Ayşe – is not the complainant's brother, and it appears from the above decision of non-jurisdiction and from the register of births that the person detained in Muş, who was put on trial by the Chief Public Prosecutor of the Van National Security Court, is not the complainant's brother. It is therefore concluded, in accordance with Article 164 of the Code of Criminal Procedure and subject to the right of appeal, that there is no basis for pursuing the matter ...” 175. On 6 July 2000 the Government informed the Court that the person apprehended and named in the NTV news broadcast was not the applicant's brother and that there were several persons in detention with similar names to the applicant's brother. According to the Government, it was in all probability a case of a confusion of names. 176. On 13 July 2000 the Court reminded the Government of its still outstanding request of 28 April 2000 to be given the video recording of the NTV news broadcast referred to by the applicant's representative. 177. In a statement dated 28 September 2000, submitted to the Court on 4 October 2000, Meliha Dal declared that she had seen her brother Mehmet Salim Acar in an NTV news broadcast on 2 February 2000 at 8 p.m. and 3 February 2000 at 8 a.m. 178. On 18 October 2000 the Court requested the applicant's representative also to submit a video recording of the news broadcast referred to by the applicant's relatives. 179. By a letter of 24 January 2001, the NTV administration informed the applicant's representative that it could not grant his request. The required footage could only be made available upon a request made by the applicant himself. On the same day the applicant sent by fax a request to the NTV administration to be provided with a video recording of the NTV news programmes broadcast on 2 February 2000 at 11 p.m. and 3 February 2000 at 8 a.m. 180. In the meantime, on 17 January 2001, the Government had submitted to the Court a video recording containing the NTV news broadcasts of 3 February 2000 at 11 a.m. and 11 p.m. 181. On 16 February 2001 the applicant sent a reminder of his request of 24 January 2001 to the NTV administration, explaining that the video recording submitted by the Government to the Court did not contain the relevant news broadcasts. 182. On 20 February 2001 the applicant informed the Court that the video recording submitted by the Government did not contain the relevant news broadcasts, namely, those of 2 February 2000 at 11 p.m. and 3 February 2000 at 8 a.m. 183. On 26 February 2001 the Court requested both parties to submit a video recording containing the NTV news broadcasts of 2 February 2000 at 11 p.m. and 3 February 2000 at 8 a.m. 184. On 30 March 2001 the applicant informed the NTV administration that he had received the video recordings of the NTV news broadcasts of 2 February 2000 at 11 p.m. and 3 February 2000 at 8 a.m., but that these did not contain the relevant news item. He requested the NTV administration to search for the news item reporting the arrest of four men in Diyarbakır and their subsequent taking into detention in Muş or Van in the television news programmes broadcast between 31 January 2000 and 6 February 2000. 185. By a letter of 2 May 2001, in reply to a request made by the Government in April 2001, a lawyer employed by NTV informed the Government that their request to be provided with a copy of the NTV news programmes broadcast on 2 February 2000 at 11 p.m. and 3 February 2000 at 8 a.m. could not be met as it concerned broadcasts of more than one year ago. It was pointed out that, under section 28 of Law no. 3984 and Article 23 of the Regulation on Procedures concerning Radio and Television Programmes, broadcasting organisations were obliged to keep copies of each broadcast programme for one year. The Government informed the Court of this outcome on 13 June 2001. II. RELEVANT DOMESTIC LAW AND PRACTICE A. State of emergency 186. Since approximately 1985, serious disturbances have raged in south-east Turkey between the security forces and the members of the PKK, a proscribed terrorist organisation under Turkish law. This confrontation has, according to the Government, claimed the lives of thousands of civilians and members of the security forces. 187. Two principal decrees relating to the south-eastern provinces of Turkey have been issued under the Law on the state of emergency (Law no. 2935 of 25 October 1983) and were in force at the material time. The first, Decree no. 285 (of 10 July 1987), established a regional governorship of the state of emergency in ten of the eleven provinces of south-east Turkey. Under Article 4 (b) and (d) of the decree, all private and public security forces and the gendarmerie Public Peace Command are at the disposal of the regional governor. 188. The second, Decree no. 430 (of 16 December 1990), reinforced the powers of the regional governor, for example to order transfers out of the region of public officials and employees, including judges and prosecutors, and provided in Article 8: “No criminal, financial or legal responsibility may be claimed against the state of emergency regional governor or a provincial governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this Decree, and no application shall be made to any judicial authority to this end. This is without prejudice to the rights of individuals to claim indemnity from the State for damage suffered by them without justification.” B. Constitutional provisions on administrative liability 189. Article 125 of the Turkish Constitution provides as follows: “All acts and decisions of the administration are subject to judicial review ... The administration shall be liable to indemnify any damage caused by its own acts and measures.” 190. This provision is not subject to any restrictions even in a state of emergency or war. The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration, whose liability is of an absolute, objective nature, based on the theory of “social risk”. Thus, the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property. C. Criminal law and procedure 191. The Turkish Criminal Code makes it a criminal offence: – to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants); – to issue threats (Article 191); – to subject an individual to torture or ill-treatment (Articles 243 and 245); – to commit unintentional homicide (Articles 452 and 459), intentional homicide (Article 448) or murder (Article 450). 192. For all these offences, complaints may be lodged, under Articles 151 and 153 of the Code of Criminal Procedure, with the public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a prosecution should be initiated, in accordance with Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings. 193. If the alleged perpetrator of a crime was a State official or a civil servant at the material time, permission to prosecute must be obtained from local administrative councils (the executive committee of the provincial assembly). An appeal lies against a local council decision to the Supreme Administrative Court; a refusal to prosecute gives rise to an automatic appeal of this kind. If the suspect is a member of the armed forces, he comes under the jurisdiction of the military courts and is tried in accordance with the provisions of Article 152 of the Military Criminal Code. D. Civil-law provisions 194. Any illegal act by a civil servant, be it a criminal offence or a tort, which causes pecuniary or non-pecuniary damage may be the subject of a claim for compensation in the ordinary civil courts. Under Article 41 of the Code of Obligations, an injured person may file a claim for compensation against an alleged perpetrator who has caused damage in an unlawful manner whether wilfully, negligently or imprudently. Pecuniary loss may be compensated by the civil courts under Article 46 of the Code of Obligations and awards may be made for non-pecuniary damage under Article 47. 195. Proceedings against the administration may be brought before the administrative courts, whose proceedings are in writing. E. Impact of Decree no. 285 196. In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of national security prosecutors and courts established throughout Turkey. 197. The public prosecutor is also deprived of jurisdiction with regard to offences alleged against members of the security forces in the state of emergency region. Decree no. 285, Article 4 § 1, provides that all security forces under the command of the regional governor (see paragraph 187 above) shall be subject, in respect of acts performed in the course of their duties, to the Law of 1914 on the prosecution of civil servants. Thus, any prosecutor who receives a complaint alleging a criminal act by a member of the security forces must decline jurisdiction and transfer the file to the administrative council. These councils are composed of civil servants, chaired by the governor. A decision by the council not to prosecute is subject to an automatic appeal to the Supreme Administrative Court. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case. THE LAW I. PRELIMINARY ISSUE 198. The Government requested the Court, in view of its decision of 6 May 2003, to pursue its examination of the merits of the case (see paragraph 26 above), to refer the application back to the Second Section of the Court for a determination of the merits. 199. The Court notes that the Convention does not provide for a possibility for the Grand Chamber to refer back to a Section of the Court a case pending before it, either after relinquishment of jurisdiction by the Section under Article 30 of the Convention or after a panel decision under Article 43. 200. Consequently, the Government's request to refer the case back to the Second Section cannot be entertained. II. SCOPE OF THE APPLICATION 201. At the admissibility stage of the proceedings before the Commission, and without relying on any specific provisions of the Convention, the applicant complained: (a) of the disappearance of his brother following his abduction in August 1994 by two officers of the Bismil gendarmerie command; (b) of the unlawfulness and excessive length of his brother's detention at the Bismil gendarmerie command; (c) of the ill-treatment and torture to which his brother was subjected while in custody and the failure by those responsible for his detention to provide him with the necessary medical care; and (d) of the fact that his brother was deprived of the services of a lawyer and of all contact with his family. 202. In its admissibility decision of 30 June 1997, the Commission considered that the facts complained of by the applicant raised issues under Articles 2, 3, 5, 6 and 8 of the Convention, which required an examination of the merits. 203. However, in his final observations on the merits, filed after the admissibility decision of 30 June 1997, the applicant also alleged violations of Articles 13 and 14 of the Convention. 204. The Court reiterates that the scope of its jurisdiction in cases such as the instant one continues to be determined by the Commission's decision on admissibility, the Court having no power to examine new separate facts and complaints of breaches of the substantive provisions of the Convention (see Okçuoğlu v. Turkey [GC], no. 24246/94, § 31, 8 July 1999). 205. The Court accordingly has no jurisdiction to examine the applicant's complaints under Articles 13 and 14 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 206. Article 2 of the Convention provides as follows: “1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” A. Arguments before the Court 1. The applicant 207. The applicant argued that there was sufficient evidence for concluding that his brother Mehmet Salim Acar had disappeared in August 1994 after being abducted by two officers of the Bismil gendarmerie district command under the guidance of Harun Aca, and that he was subsequently detained incommunicado at the Bismil gendarmerie command. The applicant further submitted that his brother was now to be presumed dead. Lastly, he complained that the authorities had failed to protect his brother's life and to carry out an effective and adequate investigation into his disappearance. Although this investigation had not yet been formally closed, there was no indication of any effective further steps still being taken in pursuit of it. 2. The Government 208. The Government submitted that the applicant's allegation that his brother had been taken away by officers of the Bismil gendarmerie command and detained at the Bismil gendarmerie command had not only remained wholly unsubstantiated, but was in fact contradicted by the accounts given by the eyewitnesses İlhan Ezer and İhsan Acar. The Government further submitted that an effective and adequate criminal investigation had been carried out. However, this investigation had unfortunately not resulted in finding the perpetrators of the abduction of Mehmet Salim Acar or the latter's whereabouts. The Government finally submitted that Mehmet Salim Acar had been included in the list of persons being searched for throughout the country. B. The Court's assessment 1. General considerations 209. Article 2 of the Convention ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted. Together with Article 3, it also enshrines one of the basic values of the democratic societies making up the Council of Europe. The object and purpose of the Convention as an instrument for the protection of individual human beings requires that these provisions be interpreted and applied so as to make its safeguards practical and effective (see Avşar v. Turkey, no. 25657/94, § 390, ECHR 2001-VII). 210. Where allegations are made under Articles 2 and 3 of the Convention, the Court must conduct a particularly thorough examination and will do so on the basis of all material submitted by the parties and, if necessary, material obtained of its own motion (see H.L.R. v. France, judgment of 29 April 1997, Reports of Judgments and Decisions 1997-III, p. 758, § 37). 2. The disappearance of the applicant's brother 211. The applicant's claim that Captain İzzet Cural and NCO Ahmet of the Bismil gendarmerie command and the Ambar villager Harun Aca were involved in the abduction of his brother and that his brother was being held at the Bismil gendarmerie command was made for the first time to the domestic authorities in the applicant's letter of 20 July 1995 to the Bismil public prosecutor (see paragraph 88 above). In his further contacts with the domestic authorities, the applicant maintained this claim without, however, offering any elements in support of this allegation. 212. In her initial petition of 29 August 1994 to the Bismil public prosecutor, Hüsna Acar stated that her son had been abducted by two unknown persons (see paragraph 86 above). In her second petition of 19 October 1994 to the Bismil public prosecutor, she asked for it to be verified whether her son had been apprehended and was being held by the security forces without, however, alleging that he had been apprehended by officers of the Bismil gendarmerie command (see paragraph 87 above). 213. The first time Hüsna Acar alleged that her son had been taken into detention by Captain İzzet Cural was in her undated petitions to, inter alia, the Investigation Commission for Human Rights of the Turkish National Grand Assembly, which registered her petition on 3 November 1995 (see paragraphs 92-93 above). Although she repeated this allegation in her letter of 10 June 1996 to the Bismil public prosecutor (see paragraph 94 above), in her request of 5 August 1996 to the Ministry of the Interior she again stated that she did not know the identities of the two persons who had abducted her son (see paragraph 95 above). In her subsequent criminal complaint of 23 August 1996 to the Bismil public prosecutor, she reiterated her claim that her son had been taken away by Captain İzzet Cural and by the brothers Mehmet and Harun Açan (see paragraph 96 above). Hüsna Acar did not provide any elements either in support of her claim in respect of the persons allegedly involved in the abduction of her son. 214. The only two eyewitnesses to the abduction of Mehmet Salim Acar, namely his minor son İhsan Acar and a neighbour İlhan Ezer, made statements on 2 September 1994, 8 September 1995, 25 October 1995 and 9 December 1996 in which they maintained that Mehmet Salim Acar had been taken away by two unknown armed men in plain clothes who had claimed to be policemen. Both İhsan Acar and İlhan Ezer consistently declared that they did not know these two men (see paragraphs 104-05, 150-51, 157 and 138-39 above). Furthermore, in his statements of 8 September 1995 and 9 December 1996 İlhan Ezer explicitly stated that he knew the gendarmerie officers accused by the applicant of being involved in the abduction of his brother very well and that they had not been the two men who had abducted Mehmet Salim Acar (see paragraphs 151 and 138 above). 215. In the domestic investigation into the abduction of the applicant's brother, statements were taken from NCO Ahmet Uyar on 6 November 1995, from Harun Aca on 23 November 1995, from Captain İzzet Cural on 27 December 1995 and 1 January 1997, and from NCO Ahmet Babayiğit on 5 February and 25 December 1996. All of them denied any knowledge of or involvement in the disappearance of Mehmet Salim Acar (see paragraphs 121, 124-25, 128, 144, 132 and 143 above). 216. The required evidentiary standard of proof for the purposes of the Convention is that of proof “beyond reasonable doubt”; such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, pp. 64-65, § 161). As regards the assessment of evidence, the Court's role is of a subsidiary nature and it must be cautious before in effect assuming the role of a first-instance tribunal of fact where this is not rendered unavoidable by the circumstances of a particular case. 217. On the basis of the material in its possession, and noting that the alleged involvement of gendarmerie officers in the disappearance of Mehmet Salim Acar is not only contradicted by the repeated and consistent statements of the two eyewitnesses, but is also not corroborated by any other evidence, the Court considers that the claim that Mehmet Salim Acar was abducted and detained by agents of the State is based on hypothesis and speculation rather than on reliable evidence. The Court finds that, in the circumstances, it has not been established beyond reasonable doubt that the responsibility of the respondent State was engaged in the abduction and disappearance of Mehmet Salim Acar. 218. The applicant's claim that his brother had been seen on television in February 2000 by three members of his family was denied by the Government, who submitted that the apprehended person shown on television was not Mehmet Salim Acar (see paragraphs 166-85 above). Despite its request, no video recording of the television programme concerned has been produced to the Court by the parties. In these circumstances, the Court finds that it has not been established beyond reasonable doubt that the apprehended person shown on television was the applicant's brother. 219. Consequently, no violation of Article 2 of the Convention has been established in this respect. 3. The alleged inadequacy of the investigation 220. The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, taken in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, p. 49 § 161, and Kaya v. Turkey, judgment of 19 February 1998, Reports 1998-I, p. 329, § 105). Such investigations should take place in every case of a killing resulting from the use of force, regardless of whether the alleged perpetrators are State agents or third persons. However, where an involvement of State agents or bodies is alleged, specific requirements as to the effectiveness of investigation may apply. 221. The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility (see Mastromatteo v. Italy [GC], no. 37703/97, § 89, ECHR 2002-VIII). What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures (see, mutatis mutandis, İlhan v. Turkey [GC], no. 22277/93, § 63, ECHR 2000-VII, and Finucane v. the United Kingdom, no. 29178/95, § 67, ECHR 2003-VIII). 222. For an investigation into an alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events (see Güleç v. Turkey, judgment of 27 July 1998, Reports 1998-IV, p. 1733, §§ 81-82, and Oğur v. Turkey [GC], no. 21594/93, §§ 91-92, ECHR 1999-III). This means not only a lack of hierarchical or institutional connection but also a practical independence (see Ergi v. Turkey, judgment of 28 July 1998, Reports 1998-IV, pp. 1778-79, §§ 83-84, and Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 70, ECHR 2002‑II). 223. The investigation must also be effective in the sense that it is capable of leading to the identification and punishment of those responsible (see Oğur, cited above, § 88). This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident (see Tanrıkulu v. Turkey [GC], no. 23763/94, § 109, ECHR 1999-IV, and Salman v. Turkey [GC], no. 21986/93, § 106, ECHR 2000-VII). Any deficiency in the investigation which undermines its ability to identify the perpetrator(s) will risk falling foul of this standard (see Aktaş v. Turkey, no. 24351/94, § 300, 24 April 2003). 224. A requirement of promptness and reasonable expedition is implicit in this context. While there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating the use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see McKerr v. the United Kingdom, no. 28883/95, § 114, ECHR 2001-III). 225. For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see Güleç, cited above, p. 1733, § 82; Oğur, cited above, § 92; and McKerr, cited above, § 148). 226. The Court notes that there is no proof that Mehmet Salim Acar has been killed. However, the above-mentioned procedural obligations extend, but are not confined, to cases that concern intentional killings resulting from the use of force by agents of the State. The Court considers that these obligations also apply to cases where a person has disappeared in circumstances which may be regarded as life-threatening. In this respect it must be accepted that the more time that goes by without any news of the person who has disappeared, the greater the likelihood that he or she has died. 227. In the present case there is no dispute over the steps that were taken by the various domestic authorities involved in the investigation of the disappearance of the applicant's brother and into the allegations made by the victim's relatives in respect of the alleged perpetrators. 228. The evidence in the case file shows that, immediately after Hüsna Acar reported the disappearance of her son on 29 August 1994, the Bismil public prosecutor opened an investigation into the matter and, on 2 September 1994, took statements from the two eyewitnesses İhsan Acar and İlhan Ezer, as well as from Hüsna Acar and the victim's wife, Halise Acar. The Bismil public prosecutor further ordered the Bismil gendarmerie command to carry out an investigation. The Bismil gendarmerie commander İzzet Cural informed the Bismil public prosecutor on 7 February and 22 June 1995 that an investigation had been carried out without, however, any results (see paragraphs 101-06, 108 and 110 above). 229. Although the initial investigation may be regarded prima facie as being in accordance with the authorities' obligations under Article 2 of the Convention, the Court considers that the manner in which the investigation was pursued once the applicant had informed the authorities in July 1995 of his suspicions against Captain İzzet Cural, NCO Ahmet and Harun Aca in connection with the disappearance of his brother cannot be regarded as complete or satisfactory for the following reasons. 230. It appears from the evidence that it was not until 18 September 1995 that the Bismil public prosecutor took the first steps to obtain a statement from Harun Aca (see paragraph 114 above). Moreover, it was not until 16 October 1995 and only after having received a request for information from the Ministry of Justice, that the Bismil public prosecutor took the first steps to obtain statements from the gendarmerie officers allegedly implicated in the disappearance (see paragraphs 116-17 above). 231. Bearing in mind that the initial investigation had been carried out by the Bismil gendarmerie authorities under the command of Captain İzzet Cural, the Court is struck by the absence of any verification by the Bismil public prosecutor of the manner in which that initial investigation was carried out. In so far as can be established, in his letters of 7 February and 22 June 1995 Captain İzzet Cural merely informed the Bismil public prosecutor that an investigation had been carried out without, however, giving any indication of the practical steps taken (see paragraphs 108 and 110 above). Further, there is no indication that he was ever questioned about the manner in which the investigation was carried out under his command. 232. In addition, it does not appear from the evidence that any steps were taken during the investigation to verify the information given to the Bismil public prosecutor by the victim's wife Halise Acar on 8 January and 23 August 1996 to the effect that her husband's disappearance was connected to a quarrel he had had three days earlier with Harun Aça's brother Mehmet Aça (see paragraphs 129 and 96 above). There is no indication in the case file that attempts have ever been made to obtain a statement from Mehmet Aça or any other persons who might have witnessed this alleged incident. 233. Finally, the Court notes that it appears that, after being informed on 16 February 2000 by Meliha Dal that she had seen her brother Mehmet Salim Acar on television on 3 February 2000, the Diyarbakır public prosecutor sent a letter to the authorities in Muş seeking information as to whether Mehmet Salim Acar was being held there (see paragraphs 166, 169 and 174 above). However, no attempts were made by him to obtain a video recording of the television broadcast seen by Meliha Dal. This is particularly surprising given the relevance and importance of such evidence to the investigation, in that three persons claimed with certainty that they had seen the victim during the television programme, and the fact that it would not have been difficult for the investigating authorities to obtain a video recording of the programmes concerned. Moreover, the authorities must have appreciated, as was eventually borne out by events (see paragraph 185 above), that the longer the delay in seeking the video recording of the news programme, the greater the difficulty in securing a copy. 234. In these circumstances, the Court finds that the domestic authorities did not conduct an adequate and effective investigation into the disappearance of Mehmet Salim Acar. There has therefore been a breach of the State's procedural obligations under Article 2 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 235. Article 3 of the Convention reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 236. The Court refers to its above finding that it has not been established beyond reasonable doubt that the applicant's brother was abducted and detained in the circumstances and by the persons alleged by the applicant (see paragraphs 217-18 above). Neither is there a sufficient evidentiary basis for concluding that the applicant's brother was subjected to ill‑treatment or torture by persons for whose acts the State is liable. 237. The Court considers that the question whether the authorities' failure to conduct an effective investigation amounted to treatment contrary to Article 3 of the Convention in respect of the applicant himself is a separate complaint from the one brought under Article 2 of the Convention which relates to procedural requirements and not to ill-treatment in the sense of Article 3. 238. The Court points out that whether a family member is a victim will depend on the existence of special factors giving his or her suffering a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human rights violation. Relevant elements will include the proximity of the family tie, the particular circumstances of the relationship, the extent to which the family member witnessed the events in question, the involvement of the family member in the attempts to obtain information about the disappeared person and the way in which the authorities responded to those enquiries. The essence of such a violation does not so much lie in the fact of the “disappearance” of the family member but rather concerns the authorities' reactions and attitudes to the situation when it is brought to their attention. It is especially in respect of the latter that a relative may claim directly to be a victim of the authorities' conduct (see Çakıcı c. Turquie [GC], no. 23657/94, § 98, ECHR 1999-IV). 239. Although the inadequacy of the investigation into the disappearance of his brother may have caused the applicant feelings of anguish and mental suffering, the Court considers that, in so far as the applicant has substantiated this claim, it has not been established that there were special factors which would justify finding a violation of Article 3 of the Convention in relation to the applicant himself (see, mutatis mutandis, Kurt v. Turkey, judgment of 25 May 1998, Reports 1998-III, pp. 1187-88, §§ 130-34; Çakıcı, cited above, §§ 98-99; and Orhan v. Turkey, no. 25656/94, §§ 357-60, 18 June 2002). 240. It therefore finds no breach of Article 3 of the Convention under either head. V. ALLEGED VIOLATIONS OF ARTICLES 5, 6 AND 8 OF THE CONVENTION 241. The Court refers to its finding that it has not been established beyond reasonable doubt that any State agent or person acting on behalf of the State authorities was involved in the alleged abduction and detention of the applicant's brother (see paragraphs 217-18 above). 242. There is thus no factual basis on which to conclude that there has been a violation of Article 5 of the Convention, which guarantees the right to liberty and security, Article 6, which guarantees the right to a fair trial, or Article 8, which guarantees the right to respect for private and family life. 243. It follows that there has been no violation of Articles 5, 6 or 8 of the Convention. VI. ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION 244. Article 18 of the Convention reads as follows: “The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.” 245. The applicant submitted that, by failing to keep and disclose adequate records in relation to the detention and questioning of his brother and by failing to take adequate steps to investigate his disappearance, the Turkish authorities subverted the domestic safeguards in respect of the detention of suspects and took no, or totally inadequate, steps to bring to an end the widespread and systematic violations of the Convention which, in his opinion, were in issue in the present case. 246. The Government have not submitted any arguments in relation to this part of the application. 247. The Court, on the basis of the facts as established in this case, finds no violation of Article 18 of the Convention. VII. ALLEGED VIOLATION OF ARTICLES 34 AND 38 OF THE CONVENTION 248. The relevant parts of Article 34 of the Convention provide: “The Court may receive applications from any person ... claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” 249. The relevant parts of Article 38 of the Convention read: “1. If the Court declares the application admissible, it shall (a) pursue the examination of the case, together with the representatives of the parties, and if need be, undertake an investigation, for the effective conduct of which the States concerned shall furnish all necessary facilities; ...” 250. The applicant complained that, contrary to their obligations under Articles 34 and 38 of the Convention, the Government had only submitted the case file of the Diyarbakır Provincial Administrative Council at a very late stage in the proceedings before the Court and had failed to obtain and submit a copy of the television programme seen by the applicant's relatives in February 2000 and in which his brother had been shown and named. 251. The Government have not commented on these issues. 252. The Court has jurisdiction to examine the applicant's complaints under Articles 34 and 38 of the Convention in respect of events that took place both before and after the Commission's decision on admissibility of 30 June 1997 (see Ergi, cited above, pp. 1783-84, §§ 104-05). 253. The Court reiterates that Convention proceedings, such as the present application, do not in all cases lend themselves to a rigorous application of the principle whereby a person who alleges something must prove that allegation and that it is of the utmost importance for the effective operation of the system of individual petition instituted under Article 34 of the Convention that States should furnish all necessary facilities to make possible a proper and effective examination of applications (see Tanrıkulu, cited above, § 70). 254. This obligation requires the Contracting States to furnish all necessary facilities to the Court, whether it is conducting a fact-finding investigation or performing its general duties as regards the examination of applications. It is inherent in the proceedings relating to cases of this nature, where individual applicants accuse State agents of violating their rights under the Convention, that in certain instances it is only the respondent State that has access to information capable of corroborating or refuting these allegations. A failure on a Government's part to submit such information which is in their hands without a satisfactory explanation may not only give rise to the drawing of inferences as to the well-foundedness of the applicant's allegations, but may also reflect negatively on the level of compliance by a respondent State with its obligations under Article 38 § 1 (a) of the Convention. The same applies to delays by the State in submitting information, which prejudices the establishment of facts in a case (see Timurtaş v. Turkey, no. 23531/94, §§ 66 and 70, ECHR 2000-VI; Orhan, cited above, § 266; and Tepe v. Turkey, no. 27244/95, § 128, 9 May 2003). 255. In the light of the above principles, the Court finds that the Government's failure to act with due diligence in complying with requests made by the Commission and the Court to make available evidence considered necessary for the examination of the application, such as the case file of the Diyarbakır Provincial Administrative Council and the video recording of the NTV broadcast (see paragraphs 5-19 and 27-28 above), cannot be regarded as compatible with the State's obligations under Article 38 § 1 (a) of the Convention. The Court does not consider that, in this respect, a separate issue arises under Article 34. 256. It therefore concludes that the State has failed to comply with their obligations under Article 38 of the Convention. VIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION 257. 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. Pecuniary damage 258. The applicant claimed, on behalf of himself and his brother's dependants, an amount of 634,027.08 pounds sterling (GBP) for pecuniary damage suffered as a result of his brother's disappearance. 259. The Government contested the applicant's claims for pecuniary damage as being unfounded and exaggerated. 260. The Court observes that there is no causal link between the matter held to constitute a violation of the Convention – the absence of an effective investigation – and the pecuniary damage alleged by the applicant. Consequently, it dismisses the applicant's claim under this head. B. Non-pecuniary damage 261. The applicant claimed GBP 10,000 for non-pecuniary damage suffered by himself and GBP 50,000 on behalf of the mother, wife and children of Mehmet Salim Acar. The applicant referred in this connection to the severe anguish and distress they had suffered on account of the disappearance of Mehmet Salim Acar. 262. The Government claimed that that amount was unjustified and excessive. 263. The Court notes at the outset that the application has not been brought on behalf of the mother, wife and children of Mehmet Salim Acar (see paragraph 1 above). Consequently, it rejects the claim for non‑pecuniary damage in so far as it has been made on their behalf. 264. As to the applicant's own claim for non-pecuniary damage, the Court reiterates that the authorities failed to carry out an effective investigation into the circumstances surrounding the disappearance of his brother, contrary to the procedural obligation under Article 2 of the Convention. Deciding on an equitable basis, the Court awards the applicant 10,000 euros (EUR) exclusive of any tax that may be chargeable, such sum to be converted into Turkish liras at the rate applicable at the date of settlement and paid into the applicant's bank account. C. Costs and expenses 265. The applicant claimed a total of 679,509 Swedish kronor for costs incurred by himself, including telephone calls, postage, and loss of salary for having reduced his working hours in order to devote himself to pursuing his application, and GBP 24,901.44 for costs and fees incurred by his British representatives, Mr K. Starmer and Mr P. Leach, and by other lawyers and administrators attached to the Kurdish Human Rights Project in London, for legal work, translations, telephone calls, postage, photocopying and stationery. 266. The Government maintained that, in the absence of any supporting evidence, the above claims had to be rejected as unsubstantiated and that, in any event, they had been unnecessarily incurred and were excessive. 267. The Court notes that the applicant has only partly succeeded in making out his complaints under the Convention and reiterates that only legal costs and expenses actually and necessarily incurred can be reimbursed under Article 41. Deciding on an equitable basis and having regard to the details of the claims submitted by the applicant, it awards him the sum of EUR 10,000, exclusive of any tax that may be chargeable, less EUR 2,299.77 received by way of legal aid from the Council of Europe, such sum to be converted into pounds sterling at the date of settlement and to be paid into the bank account in the United Kingdom indicated in his just satisfaction claim. D. Default interest 268. 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 1. Rejects the Government's request to refer the case back to a Section of the Court; 2. Holds that it has no jurisdiction to consider the applicant's complaints under Articles 13 and 14 of the Convention; 3. Holds that there has been no substantive violation of Article 2 of the Convention; 4. Holds that there has been a procedural violation of Article 2 of the Convention; 5. Holds that there has been no violation of Article 3 of the Convention; 6. Holds that there has been no violation of Articles 5, 6 and 8 of the Convention; 7. Holds that there has been no violation of Article 18 of the Convention; 8. Holds that there has been a failure to comply with Article 38 of the Convention and that no separate issue arises under Article 34 of the Convention; 9. Holds (a) that the respondent State is to pay the applicant, within three months, the following amounts: (i) EUR 10,000 (ten thousand euros) in respect of non-pecuniary damage, this sum to be converted into Turkish liras at the rate applicable at the date of settlement and to be paid into the bank account indicated by the applicant; (ii) EUR 10,000 (ten thousand euros) less EUR 2,299.77 (two thousand two hundred and ninety-nine euros seventy-seven cents) in respect of costs and expenses, this sum to be converted into pounds sterling at the rate applicable at the date of settlement and to be paid into the bank account indicated by the applicant; (iii) any tax that may be chargeable on the above amounts; (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; 10. Dismisses the remainder of the claim for just satisfaction. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 8 April 2004. Luzius WildhaberPresidentPaul MahoneyRegistrar In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the concurring opinion of Mr Bonello is annexed to this judgment. L.W.P.J.M. CONCURRING OPINION OF JUDGE BONELLO 1. I voted, if only with marked reluctance, for not finding a “substantive” violation of Article 2 as regards the disappearance of the applicant's brother in 1994. I felt compelled to follow the Court as, in truth, the applicant stopped short of proving “beyond reasonable doubt” the State's responsibility in that disappearance, or that his brother's disinclination to rejoin his family in the ten years that followed can conclusively be attributed to the State. In the present state of the Court's case-law[6], it would have been rash to vote otherwise. 2. But, surely, the applicant's failure to demonstrate that the disappearance engages the State's responsibility should neither mark the beginning nor be the end of the issue. In my view the Court could have approached the concerns underlying the problem from a wholly different perspective. This separate opinion attempts to make relevant what, to me, are vital and indispensable tenets in judicial policy-making. 3. In this case the Court unanimously attributed to the respondent State two distinct and far-reaching responsibilities. Firstly, it found a “procedural” violation of Article 2, in so far as the State neglected to conduct any adequate and effective investigation into the disappearance of the applicant's brother. Secondly, the Court also found that the respondent State had failed to comply with Article 38, which binds States to cooperate fully with the Court in any investigation aimed at establishing the facts, and to furnish all necessary facilities for the effective conduct of that investigation. The respondent State underperformed seriously on both counts. 4. The Court found the second non-compliance to consist in the Government's failure to act with due diligence in observing the requests made by the Commission and the Court to “make available evidence considered necessary for the examination of the application, such as the case file of the Diyarbakır Provincial Administrative Council and the video recording of the NTV broadcast” – in which the applicant and other witnesses allege the desparacido could be seen, and quite alive, in police custody, well after he disappeared in a car without licence plates, with the assistance of two armed men[7]. 5. The Court has justly acknowledged that, in some cases, the State is the sole depositary of sensitive and fundamental evidence: “in certain instances, it is only the respondent State that has access to information capable of corroborating or refuting these allegations [of breaches of Convention rights].” The Court then added: “A failure on a Government's part to submit such information which is in their hands without a satisfactory explanation may not only give rise to the drawing of inferences as to the well-foundedness of the applicant's allegations, but may also reflect negatively on the level of compliance by a respondent State with its obligations under Article 38 § 1 (a) of the Convention.[8]” 6. In the present case, the Court was faced with a situation, acknowledged and stigmatised, in which the State failed not only in its obligation to investigate properly the facts surrounding the disappearance, but also compounded and aggravated that deficiency by being particularly economical in cooperating with the Court when it came to making evidence relevant to that disappearance accessible. In other words, it is the State that made nugatory or impossible the availability of potentially relevant evidence. 7. I ask who ought to be penalised for this dearth of evidence and for the two ascertained failings by the Government. Is it the applicant, who was short‑changed of any effective means to substantiate his assertions, as all the evidence was safely entombed in the State's coffers? Or the State, which was bound by the Convention to conduct a proper investigation but did not, and which was obliged to provide the Court with what evidence it had, but equally did not – at least not with the required diligence? 8. It is for me incontestable that the applicant did not succeed in establishing “beyond reasonable doubt” the State's responsibility in the disappearance. And it is for me equally incontestable that the Court has visited the miscarriages of the Government not on the perpetrator of those failings, but on the victim of those failings. 9. This, on a rational plane, flies in the face of equity. I consider it incongruous that, as a consequence of violating two Convention duties, the culprit State should reap rewards. Unacceptable that the applicant is told by a court of justice that he cannot win against the State, as he failed to produce evidence which the State had wrongly failed to produce. 10. I find the sequence of reasoning behind the judgment profoundly disturbing. In my book, the wrongdoer indemnifies, the polluter pays, the transgressor compensates. The trend of the case-law so far, in my opinion, stands these hallowed principles on their heads. This could come dangerously near the thresholds of iniquity. I feel I must distance myself from moral deficit such as this. 11. I believe the Court should have hounded to its rational conclusion the enlightened principle it enunciated, but then sadly failed to follow through: if the State is at fault in gathering evidence or in suppressing or withholding what information it has, then the Court would be justified, using its own words, in “the drawing of inferences as to the well-foundedness of the applicant's allegations”. The drawing of these compelling inferences, so far, remains a forlorn hope. 12. It appears to me axiomatic that, in a scenario in which the Government is at fault where evidence-building is concerned, then a legal inference of culpability on the merits of the complaint should have been drawn. States, in detestable circumstances such as the disappearance in question, cannot be let off with benign raps on the knuckles. In my view the Court ought to have declared, boldly and defiantly, that, when a State defaults in its duties to investigate and to hand over what evidence it has under its control, the burden of proof shifts. It is then for the Government to disprove the applicant's allegations. Failure to draw these inferences will only embolden rogue States in their efforts to rig sham investigations, and encourage the suppression of incriminating evidence. 13. Some trail-blazing judgments by the Court have demonstrated how effective in the defence of human rights its recent forays into resourceful judicial engineering have been: reliance on rebuttable inferences, shifting of the burden of proof, and a possible lowering of the “beyond reasonable doubt” quantum[9]. The way forward, in my view, can only lie in the practical and effective use of inferences of culpability, and a consequent shift of the burden of proof, in cases in which a State is found to have disregarded its obligations to investigate or to make available to the Court whatever information it is the depositary of. 14. The failure by the Court to find a “substantive” violation of Article 2 had dismal consequences for the applicant: no compensation for pecuniary damage could be, or was, awarded[10]. The Government, which, in the course of the proceedings, had spontaneously offered the applicant 70,000 pounds sterling in compensation, can now get away with giving a hand-out of 10,000 euros, the fair market price, it seems, for the life of a man who never was. [1]. In the documents submitted by the parties, Mehmet Salim Acar is also referred to as Mehmet Salih Acar or Mehmet Selim Acar. [2]. In summarising the documents submitted by the parties, the Court has used the names of persons as cited in these documents. These do not necessarily reflect the correct spelling of the names of these persons. [3]. The Turkish word “itirafçı” indicates a defected member of an illegal organisation who provides the authorities with information about that organisation. [4]. Village headman. [5]. “Sülüman şapkaları”; Borsalino-style hats. [6]. See, for example, Tekdağ v. Turkey, no. 27699/95, § 57, 15 January 2004. [7]. See paragraph 255 of the judgment. [8]. See paragraph 254 of the judgment (emphasis added). This has also been said in Tepe v. Turkey, no. 27244/95, § 128, 9 May 2003, and Tekdağ, cited above, § 57. [9]. See Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII; Timurtaş v. Turkey, no. 23531/94, ECHR 2000-VI; Čonka v. Belgium, no. 51564/99, ECHR 2002-I; and Nachova and Others v. Bulgaria, nos. 43577/98 and 43579/98, 26 February 2004. [10]. See paragraph 260 of the judgment: “… there is no causal link between the matter held to constitute a violation of the Convention – the absence of an effective investigation – and the pecuniary damage alleged by the applicant.”

FIRST SECTION CASE OF MIHOV v. BULGARIA (Application no. 35519/97) JUDGMENT STRASBOURG 31 July 2003 FINAL 31/10/2003 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 Mihov v. Bulgaria, The European Court of Human Rights (First Section), sitting as a Chamber composed of MrC.L. Rozakis, President,MrG. Bonello,MrsF. Tulkens,MrE. Levits,MrsS. Botoucharova,MrA. Kovler,MrsE. Steiner, judges,and Mr S. Nielsen, Deputy Registrar, Having deliberated in private on 8 July 2003, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 35519/97) against the Republic of Bulgaria lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Mr Mihail Simeonov Mihov (“the applicant”), on 8 December 1996. 2. The applicant was represented by Mr Y. Grozev, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their agents, Mrs V. Djidjeva and Mrs M. Dimova, of the Ministry of Justice. 3. The applicant alleged, inter alia, that his detention pending trial had not been justified and had been unreasonably long in violation of Article 5 § 3 of the Convention and that the proceedings before the Supreme Court for the examination of his appeal against detention had been in breach of the requirements of Article 5 § 4 of the Convention. 4. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). 5. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). On 19 September 2000, the Court declared part of the complaints inadmissible. 6. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed First Section (Rule 52 § 1). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 7. By a decision of 20 June 2002, the Court declared the application partly admissible. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 8. The applicant, Mr Mihail Simeonov Mihov, is a Bulgarian national who was born in 1966. A. The criminal proceedings 9. On 11 September 1993, the applicant, who worked as a custom officer, was questioned in relation to a preliminary investigation opened on 10 September 1993 by the Plovdiv Regional Public Prosecutor against persons suspected of having obtained unlawfully excise tax refunds through forged documents. 10. On 19 November 1993 the applicant was arrested and remanded in custody on suspicion of having aided and abetted those persons and having forged documents in contravention of Article 212 §§ 2 and 4 of the Criminal Code, which provided for a sentence of ten to twenty years’ imprisonment. 11. Four persons, including the applicant, were eventually prosecuted and convicted in one trial. All of them later submitted applications raising complaints under Articles 5 and 6 of the Convention (see, Ilijkov v. Bulgaria, no. 33977/96, 26 July 2001, and the cases of Hristov v. Bulgaria, no. 35436/97 and Al Akidi v. Bulgaria, no. 35825/97). 12. The accusations against the applicant concerned the alleged false certification, made by him on 9 May 1993, of a fictitious export of consignments of cigarettes which in reality had never left the country. That false certification had enabled Mr Ilijkov to obtain unlawfully 6,249,600 Bulgarian levs (the equivalent of 200,417 US dollars at the relevant time). 13. The applicant’s defence was apparently based on his assertion that on the relevant day he had been working in his office on the basis of documents only and that his colleagues had been checking the actual traffic of lorries. 14. On 5 April 1994, having completed the preliminary investigation, the prosecution authorities submitted an indictment to the Plovdiv Regional Court. The indictment relied on 33 witnesses and voluminous documentary material. 15. The Plovdiv Regional Court sat as a chamber of three judges: a president who was a professional judge and two lay judges. 16. The first hearing took place on 12 and 13 May 1994 when the Regional Court heard the four co-accused and several witnesses. Some of the witnesses did not appear. The prosecutor and the defence lawyers requested leave to submit further evidence. The court adjourned the hearing. On 16 May 1994 the court, sitting in private, appointed a graphology expert. 17. Several times during the proceedings the Regional Court had to wait for the case file to be returned by the Supreme Court in Sofia, where it had been sent for the examination of the appeals submitted by the applicant and his co-accused against the Regional Court’s refusals to release them on bail. In practice, whenever such an appeal was submitted, the Plovdiv Regional Court transmitted the case file together with the appeal and a prosecutor’s opinion. 18. The case file was sent to the Supreme Court on 28 May 1994 for one of the co-accused’s appeal against detention to be examined and was returned on 30 June 1994. 19. The Regional Court did not deal with the case until 13 September 1994, when the presiding judge ordered the production of a piece of evidence. 20. The trial resumed on 6 October 1994. The court heard several witnesses and adjourned the hearing as the prosecutor insisted on the examination of other witnesses who had not appeared and in order to enable the accused persons to submit further evidence. Some of the witnesses who had not appeared were ordered to pay fines. 21. The next trial hearing took place on 29 and 30 November 1994. The financial expert appointed by the court stated that he had been denied access to certain documents and therefore had not finalised his report. The court ordered a bank and the customs office to provide access to the documents in question. Two additional financial experts were also appointed. Both the prosecution and the defence sought to adduce additional evidence. The hearing was adjourned. 22. Between 20 January and 21 February 1995 the case file was in Sofia at the Supreme Court for the examination of appeals against detention. 23. The hearing listed for 19 April 1995 was adjourned as the presiding judge was ill. 24. The next hearing, scheduled for 9 June 1995, was adjourned as one of the lay judges had been taken ill. 25. On 12 July 1995 the court sitting in private ordered an expert report. 26. The hearing listed for 21 September 1995 was adjourned owing to the illness of the lawyer of one of the co-accused. The court also observed that several witnesses had not been summoned properly and that others, albeit summoned, had not appeared. 27. Between 3 October and 6 November 1995 the case file was in Sofia at the Supreme Court, which was examining appeals against detention. 28. The next hearing, listed for 12 January 1996, had to be adjourned as both lay judges were ill. 29. After learning that the lay judges were prevented by illness from further participation in the proceedings, on 19 February 1996 the Plovdiv Regional Court recommenced the examination of the case with two new lay judges. On that date the court appointed two additional experts. 30. The new chamber of the court held a hearing on 26 and 27 March 1996. It heard several witnesses and experts. The hearing was adjourned as some of the witnesses had not been summoned due to an omission on the part of the court’s clerk and because the parties sought to adduce further evidence. The court fixed the date for the next hearing to 7 and 8 May 1996. 31. On 7 and 8 May 1996 the court heard several witnesses and an expert. The hearing was adjourned as further evidence had to be obtained. 32. Between 9 and 28 May 1996 the case file was at the Supreme Court in Sofia in connection with appeals against detention. 33. The hearing scheduled for 16 and 17 September 1996 was adjourned to 29 and 30 October 1996 as a lay judge had broken his leg and was unable to attend. 34. The hearing of 30 October 1996 was further adjourned, because the medical experts considered that one of the co-accused was not in a condition to participate in the hearing as he was on a hunger strike. 35. Between 19 November and 4 December 1996 the case file was in Sofia at the Supreme Court in connection with appeals against detention. In its cover letter to the Supreme Court, the Regional Court drew attention to the fact that a hearing had been listed for 19 December 1996 and called for the return of the case file before that date. 36. The hearing resumed on 19 December 1996. One witness and the experts were heard. As other witnesses had not appeared, the court accepted the requests of the defence lawyers and the prosecutor for a further adjournment. 37. The Regional Court throughout the proceedings sought police assistance to establish the addresses of witnesses and bring them before the court. One of the witnesses was suspected of seeking to evade service of the summonses. 38. The last hearing before the Plovdiv Regional Court took place on 28‑31 January 1997. The court heard witnesses and the submissions of the parties to the criminal case and examined other evidence. 39. On 31 January 1997 the applicant was found guilty of having made a false certification on 9 May 1993 thus enabling Mr Ilijkov to obtain unlawfully excise tax refund. He was sentenced to ten years’ imprisonment. His accomplices were also convicted and sentenced to terms of imprisonment of between eleven and thirteen years. 40. The court reserved the reasoning of its judgment. It was prepared on an unspecified date at least three months following the delivery of the judgment. 41. On 10 February 1997 the applicant appealed to the Supreme Court of Cassation against his conviction and sentence. 42. The case was listed for a hearing on 26 September 1997. On that date the prosecutor appointed to act before the Supreme Court of Cassation declared that he had known one of the convicted persons and that he wished to withdraw. The examination of the case could not proceed and the hearing was adjourned. 43. The hearing was held on 23 January 1998. 44. By judgment of 16 March 1998 the court upheld the applicant’s conviction and sentence. 45. On an unspecified date the applicant submitted a petition for review (cassation). 46. On 10 June 1998 the Supreme Court of Cassation held a hearing in the review (cassation) proceedings. As one of the co-accused joined the proceedings at that moment, the court adjourned the hearing to enable him to make the necessary submissions, which he did on 22 June 1998. 47. The hearing resumed on 9 December 1998. 48. On 22 March 1999 the Supreme Court of Cassation dismissed the petitions for review of the applicant and the other accused persons. 49. At all stages of the proceedings the applicant was legally represented. B. The applicant’s pre-trial detention 50. On 19 November 1993 the applicant was arrested and remanded in custody. 51. On 1 March 1994 the applicant’s application for release was dismissed by the Plovdiv Regional Court, sitting in private, on the grounds that he was charged with a serious offence committed with intent and that there was a prima facie danger of his absconding, committing further offences or obstructing the course of justice. The court held that the state of health of the applicant’s wife and child was not a ground for ordering his release under the relevant law. 52. On 14 March 1994 the applicant complained of his detention to the Chief Public Prosecutor on the ground that he had not committed the offence in question. He did not receive an answer. 53. In March 1994 five persons who had been heard as witnesses in the criminal proceedings against the applicant and his accomplices were charged with perjury. Separate proceedings were brought against them. 54. At the hearing on 13 May 1994 the Regional Court dismissed the applicant’s application for release made on the same day. On 18 May 1994 the applicant appealed to the Supreme Court. On 30 June 1994 the appeal was dismissed at a sitting in private in the presence of the prosecutor. The Supreme Court held that the applicant’s detention was imperative as he had been charged with a serious offence with intent. 55. On 6 October 1994 the Regional Court dismissed the applications for release filed by all co-accused stating that the charges carried a penalty of ten or more years imprisonment and that there were “no grounds to consider it established that the defendants would not abscond or commit a crime”. The family situation and health condition of the accused persons did not require their release. 56. At the trial hearing of 29 and 30 November 1994, the applicant applied for release on bail on the grounds that there was no danger that he would abscond and that he had a permanent address. The court dismissed the application holding that there were no new facts to justify his being released. 57. The applicant appealed to the Supreme Court. He stated that he had been detained for more than one year, that most evidence had been collected, that he had a family and two small children one of whom was seriously ill and that therefore there was no danger of absconding or committing an offence. 58. On 4 December 1994, the Regional Court, before transmitting the appeal to the Supreme Court, sitting in private, examined the matter again and refused to reverse its decision of 30 November 1994. The court held, inter alia, that according to the domestic law and the Supreme Court’s practice detention pending trial was prima facie necessary when a person had been accused of having committed a serious wilful offence. To substitute this judicial measure by a more lenient one would only be possible if there had been “not even a hypothetical danger that the accused might abscond or commit further offences”, in particular, “if he is ill or elderly”. 59. On 21 February 1995 the Supreme Court dismissed the appeal against the applicant’s detention. 60. The Supreme Court explained its practice in matters of pre-trial detention stating that under Article 152 §§ 1 and 2 of the Code of Criminal Procedure remand in custody was mandatory for everyone accused of a crime punishable by ten or more years’ imprisonment, the only exception being where it was clear beyond doubt that there was no danger of the accused absconding or re-offending. In the Supreme Court’s view such would only be the case where, for example, the accused was seriously ill, elderly or in any other condition which excluded the danger of his or her absconding or re-offending. Since the applicant was charged with a crime punishable by more than ten years’ imprisonment and as no special circumstances excluding the danger of his absconding or re-offending had been established, there were no grounds for ordering his release on bail. 61. The Supreme Court further refused to consider the applicant’s contention that the evidence against him was weak. It found that it had no jurisdiction to do so in connection with an appeal against pre-trial detention. Its only task was to examine whether the conditions for detention under Article 152 of the Code of Criminal Procedure had been met. 62. At the hearing on 21 September 1995 the applicant again appealed against his detention on the ground that there was no danger of his absconding. In particular, he pointed out that he had continued to work at the customs office although he had been aware of the preliminary investigation. Furthermore, no steps had been taken by the authorities for almost a whole year. 63. The prosecutor objected, stating, inter alia, that under the relevant law, and regard being had to the increase in the crime rate in the country, the court was not entitled to release the applicant or the other co-accused. 64. On 21 September 1995 the Regional Court dismissed the application for bail, holding that there were no new circumstances and that pre-trial detention was required as a matter of law in all cases where the charges concerned a serious offence with intent. 65. On 28 September 1995 the applicant appealed to the Supreme Court. 66. On 6 November 1995 the Supreme Court sitting in private, upon receipt of the prosecutor’s observations which had not been communicated to the applicant, dismissed the appeal stating that the applicant could only be released if there existed unequivocal evidence establishing beyond all doubt that there was no danger of his absconding, re-offending or obstructing the investigation. However, no such evidence was available in the applicant’s case. 67. On 19 February 1996 the applicant again submitted an application for release to the Plovdiv Regional Court. It was dismissed on the same day as there had been no new facts and on the ground that the applicant was charged with a serious wilful crime which automatically required the imposition of pre-trial detention in accordance with Article 152 § 1 of the Code of Criminal Procedure. 68. At the hearing of 27 March 1996 the applicant renewed his application for release on bail which was refused on the same day by the Regional Court as there had been no new circumstances. 69. On 24 September 1996 the applicant submitted a request for release. The Regional Court dealt with the appeals of the applicant and two of the other co-accused persons at the hearing on 29 and 30 October 1996 and dismissed them on grounds similar to those previously stated. On 1 November 1996 the applicant appealed against that decision to the Supreme Court. He stated, inter alia, that his detention had been continuing for three years only because the Regional Court had failed to conduct the trial promptly. In particular, it had not replaced the lay judge who had been ill. 70. On 11 November 1996, the Regional Court, sitting in camera, re‑examined the matter ex officio and refused to reconsider its decision. On 19 November 1996 the appeal was transmitted to the Supreme Court. 71. On 25 November 1996 a prosecutor of the Chief Public Prosecutor’s Office submitted written observations to the Supreme Court, inviting it to dismiss the appeals of Mr Ilijkov, Mr Hristov and Mr Mihov, which were being examined simultaneously. The comments were not communicated to the applicant. 72. On 4 December 1996 the Supreme Court sitting in private dismissed the appeals. It stated that the danger of absconding, re-offending and perverting the course of justice was presumed in view of the gravity of the crime with which the applicant was charged. 73. On 31 January 1997 the applicant was found guilty and sentenced to ten years’ imprisonment. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Penal Code 74. Article 212 § 4 lays down that it is an offence to misappropriate very large quantities of possessions by using forged documents. This offence is punishable by ten to twenty years’ imprisonment. B. Code of Criminal Procedure 1. Legal criteria and practice regarding the requirements and justification for pre-trial detention 75. The Supreme Court has stated that it is not open to the courts, when examining an appeal against pre-trial detention, to inquire whether there exists sufficient evidence to support the charges against the detainee. The courts must only examine the lawfulness of the detention order (Decision no. 24 of 23 May 1995 in case no. 268/95, I Chamber, Bulletin 1995, p. 149). 76. Paragraphs 1 and 2 of Article 152, as in force at the material time (and until 4 June 1995), provided as follows: “(1) Pre-trial detention shall be imposed [in cases where the charges concern] crimes punishable by ten or more years’ imprisonment or capital punishment. (2) In the cases under the preceding paragraph [pre-trial detention] shall not be imposed if there is no danger of the accused evading justice or committing further offences.” 77. These provisions, as worded from 4 June 1995 until August 1997, provided as follows: “(1) Pre-trial detention shall be imposed [in cases where the charges concern] a serious wilful crime. (2) In the cases falling under paragraph 1 [pre-trial detention] may possibly not be imposed if there is no danger of the accused evading justice, obstructing the investigation, or committing further offences.” 78. According to Article 93 § 7 of the Penal Code a “serious” crime is one punishable by more than five years’ imprisonment. 79. With effect from 1 January 2000 Article 152 and other provisions concerning the grounds for pre-trial detention were amended. 80. According to the Supreme Court’s practice at the relevant time (it has now become at least partly obsolete as a result of the amendments in force since 1 January 2000) Article 152 § 1 required that a person charged with a serious wilful crime (or with a crime punishable by ten or more years’ imprisonment, according to this provision as in force before June 1995) had to be remanded in custody. An exception was only possible, in accordance with Article 152 § 2, where it was clear beyond doubt that any danger of absconding or re-offending was objectively excluded as, for example, in the case of an accused who was seriously ill, elderly, or already detained on other grounds, such as serving a sentence (Decision no. 1 of 4 May 1992 in case no. 1/92, II Chamber, Bulletin 1992/93, p. 172; Decision no. 4 of 21 February 1995 in case no. 76/95, II Chamber; Decision no. 78 of 6 November 1995 in case no. 768/95, II Chamber; Decision no. 24 in case no. 268/95, I Chamber, Bulletin 1995, p. 149). 2. Appeals against detention during the trial 81. According to Article 304 § 1 of the Code of Criminal Procedure, the detainee’s applications for release at the trial stage of criminal proceedings are examined by the trial court. 82. It follows from Article 304 §§ 1 and 2 that such requests may be examined in private or at an oral hearing. The law does not require the trial court to decide within a particular time-limit. 83. The trial court’s decision as regards a request for release is subject to appeal to the higher court (Article 344 § 3). The appeal must be lodged within seven days (Article 345) with the trial court (Article 348 § 4 in conjunction with Article 318 § 2). According to Article 347, after receiving the appeal, the trial court, sitting in private, shall decide whether there exist grounds to annul or vary its decision. If it does not find a reason to do so the trial court transmits the appeal to the higher court. 84. Before doing so, the trial court must communicate the appeal to the other party and receive its written observations (Article 348 § 4 in conjunction with Articles 320 and 321). The law does not provide for the prosecutor’s observations to be communicated to the appellant. 85. Article 348 provides that the appeals court may examine the appeal in private or, if it considers it necessary, at an oral hearing. The law does not require the appeal court to decide within a particular time-limit. THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 86. The applicant complained that his detention pending trial had not been justified and had been unreasonably long. He relied on Article 5 § 3 of the Convention which provides, in so far as relevant: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” A. The parties’ submissions 87. The applicant stated that the domestic law and practice at the relevant time, as applied in his case and referred to by the Government, had been in direct violation of the Convention which required that long periods of detention should be justified by the authorities on the basis of existing dangers of absconding or committing an offence. The applicant had not sought to abscond or obstruct the proceedings after 11 September 1993, when he had been interrogated as a witness and had remained free. He had a family and children. All those relevant factors had been disregarded by the authorities who had kept him in custody on the basis of deficient domestic legislation and practice. 88. Further, the applicant considered that the authorities had been responsible for excessive delays as on many occasions they had not ensured the attendance of witnesses, had allowed long intervals for the judges’ summer holidays and had failed to appoint reserve lay judges. The applicant objected against the Government’s position that he had been responsible for delays resulting from his applications for release and appeals. 89. The Government submitted that the charges against the applicant concerned serious crimes. In such cases Article 152 of the Code of Criminal Procedure required that the accused be remanded in custody. Release on bail was only possible in exceptional circumstances, where there did not exist even a theoretical possibility of absconding, re-offending or perverting the course of justice. In the absence of concrete evidence of such exceptional circumstances a presumption arose that there was a danger that the accused would abscond or commit an offence. It was incumbent on the detainee to produce sufficient evidence that there existed exceptional circumstances warranting release on bail. The applicant had failed to submit persuasive evidence in this respect. The reasons for the applicant’s detention were thus relevant and sufficient. 90. The Government were of the opinion that, furthermore, the authorities had handled the case with due diligence and had worked on it very actively. The preliminary investigation had lasted only six months. Among the reasons for the delays in the judicial stage of the proceedings there had been “objective” factors. In particular, the case had been very complex: it concerned four accused persons having committed customs offences and forged documents, the case-file had been in six volumes and the prosecution had relied on 33 witnesses. The national courts had been under an obligation to take every necessary step to elucidate the facts. Many adjournments had been inevitable as witnesses had not appeared despite the efforts of the Regional Court to ensure their attendance including through police assistance. Other adjournments had been caused by judges having been taken ill. Furthermore, one adjournment had been necessary owing to illness of one of the defence lawyers. 91. The Government also submitted that the applicant had on many occasions contributed to the length of the proceedings by making requests for the collection of additional evidence up until the end of the proceedings. B. The Court’s assessment 92. The applicant’s detention on remand lasted from 19 November 1993 to 31 January 1997. The period to be taken into consideration is therefore three years, two months and twelve days (see paragraphs 51-74 above). 93. The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (Labita v. Italy [GC], no. 26772/95, §§ 152 and 153, ECHR 2000-IV). 94. In its partial decision of 19 September 2000 in the present case the Court rejected as manifestly ill-founded the applicant’s assertion that there had been no reasonable suspicion of him having committed a crime. The applicant was held in custody on the basis of a suspicion that he had forged documents with a view to obtaining an unlawful gain. 95. As to the grounds for the continued detention, the Court finds that the present case discloses no material difference from the case of Ilijkov v. Bulgaria (cited above). The Court stated in Ilijkov: “[T]he [authorities] applied law and practice under which there was a presumption that remand in custody was necessary in cases where the sentence faced went beyond a certain threshold of severity ...[While] the severity of the sentence faced is a relevant element .... the Court has repeatedly held that the gravity of the charges cannot by itself serve to justify long periods of pre-trial detention ... That is particularly true in the present case where under the applicable domestic law and practice the characterisation in law of the facts - and thus the sentence faced by the applicant - was determined by the prosecution authorities without judicial control of the question whether or not the evidence supported reasonable suspicion that the accused had committed an offence attracting a sentence of the relevant length ... The only other ground for the applicant’s lengthy detention was the domestic courts’ finding that there were no exceptional circumstances warranting release. However, that finding was not based on an analysis of all pertinent facts. The authorities regarded the applicant’s arguments that he had never been convicted, that he had a family and a stable way of life, and that after the passage of time any possible danger of collusion or absconding had receded, as irrelevant. They did so because by virtue of Article 152 of the Code of Criminal Procedure and the Supreme Court’s practice the presumption under that provision was only rebuttable in very exceptional circumstances where even a hypothetical possibility of absconding, re-offending or collusion was excluded due to serious illness or other exceptional factors. It was moreover incumbent on the detained person to prove the existence of such exceptional circumstances, failing which he was bound to remain in detention on remand throughout the proceedings ... The Court reiterates that continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty. Any system of mandatory detention on remand is per se incompatible with Article 5 § 3 of the Convention (see the Letellier v. France judgment of 26 June 1991, Series A no. 207, §§ 35-53; the Clooth v. Belgium judgment of 12 December 1991, Series A no. 225, § 44; the Muller v. France judgment of 17 March 1997, Reports 1997-II, §§ 35-45; the above cited Labita judgment, §§ 152 and 162-165; and Ječius v. Lithuania, [no. 34578/97, ECHR 2000‑IX] §§ 93 and 94). Shifting the burden of proof to the detained person in such matters is tantamount to overturning the rule of Article 5 of the Convention, a provision which makes detention an exceptional departure from the right to liberty and one that is only permissible in exhaustively enumerated and strictly defined cases.” 96. Having regard to the reasons given by the domestic courts to justify Mr Mihov’s lengthy pre-trial detention (see paragraphs 51-74 and 76-81 above), the Court finds, as in the Ilijkov case, that by failing to address concrete relevant facts and by relying solely on a statutory presumption based on the gravity of the charges and which shifted to the accused the burden of proving that there was not even a hypothetical danger of absconding, re-offending or collusion, the authorities prolonged the applicant’s detention on grounds which cannot be regarded as sufficient. 97. The authorities thus failed to justify the applicant’s remand in custody for the period of three years, two months and twelve days. In these circumstances it is not necessary to examine whether the proceedings were conducted with due diligence. 98. There has been therefore a violation of Article 5 § 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 99. The applicant complained that the proceedings before the Supreme Court on 4 December 1996 in the examination of his appeal against detention had been unfair as they had been conducted in private, without a hearing or the participation of the applicant or his lawyer. The applicant relied on Article 5 § 4 of the Convention, which provides: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” 100. The Government submitted that the Supreme Court had acted on appeal from a decision of the Regional Court which had examined the matter in an open hearing. Holding a hearing before the second level jurisdiction, the Supreme Court in the particular case, would be burdensome and would slow down the procedure. 101. The applicant reiterated his complaint. 102. The Court notes that it has already ruled on the same complaint in the case of Mr Ilijkov, whose appeal against detention was examined together with the applicant’s appeal by the Supreme Court on 4 December 1996 (see paragraphs 72 and 73 above and Ilijkov v. Bulgaria, cited above, §§ 51-53 and 101-104) 103. As in the Ilijkov case, the Court, noting that the Supreme Court examined the applicant’s appeal against detention in private after receiving the prosecutor’s observations which were not communicated to the applicant and that he was given no opportunity of replying, finds that the parties to the proceedings before the Supreme Court were not on equal footing. As a matter of domestic law and established practice the prosecution authorities had the privilege of addressing the judges with arguments which were not communicated to the applicant (see paragraphs 72, 73 and 85 above). The proceedings were therefore not adversarial. 104. There has been, therefore, a violation of Article 5 § 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 105. 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 106. The applicant claimed 10,000 Bulgarian levs (the equivalent of about EUR 5,000) for non-pecuniary damage. 107. The Government stated that the amount was excessive in view of the living standard in Bulgaria. 108. The Court, deciding on an equitable basis, awards EUR 4,000 for non-pecuniary damage. B. Costs and expenses 109. The applicant claimed EUR 3,320 for 83 hours of legal work, at a rate of EUR 40 per hour. He submitted a time sheet and a fees’ agreement with his lawyer. 110. The Government disputed the time-sheet, stating that the number of hours claimed was excessive and pointing out that it included 13 hours for translations, which should not be charged at the same rate as legal work. The Government also considered that the hourly rate claimed went far beyond the rates normally charged in Bulgaria. 111. The Court considers that a reduction should be applied in view of the fact that part of the initial complaints were declared inadmissible. It awards EUR 2,800 in respect of costs and expenses. C. Default interest 112. 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 1. Holds that there has been a violation of Article 5 § 3 of the Convention; 2. Holds that there has been a violation of Article 5 § 4 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts: (i) EUR 4,000 (four thousand euros) in respect of non-pecuniary damage; (ii) EUR 2,800 (two thousand and eight hundred euros) in respect of costs and expenses; (iii) any tax that may be chargeable on the above amounts; (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; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 31 July 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos Rozakis Deputy RegistrarPresident

SECOND SECTION CASE OF BAKAY AND OTHERS v. UKRAINE (Application no. 67647/01) JUDGMENT STRASBOURG 9 November 2004 FINAL 09/02/2005 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 Bakay and Others v. Ukraine, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrL. Loucaides,MrC. Bîrsan,MrK. Jungwiert,MrV. Butkevych,MrsW. Thomassen,MrsA. Mularoni, judges,and Mr T.L. Early, Deputy Section Registrar, Having deliberated in private on 19 October 2004, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 67647/01) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by six Ukrainian nationals (“the applicants”): Ms Olga Sergiyivna Bakay (the first applicant), Ms Svitlana Pavlivna Leschova (the second applicant), Ms Lyubov Mykolayivna Yemets (the third applicant), Ms Yaroslava Ivanivna Voloshyna (the fourth applicant), Ms Tamara Semenivna Semak (the fifth applicant) and Ms Nataliya Leonidivna Lytvynenko (the sixth applicant), on 4 January 2001. 2. The Ukrainian Government (“the Government”) were represented by their Agents, Ms Valeria Lutkovska, succeeded by Ms Zoryana Bortnovska. 3. The applicants' complaints under Articles 6 § 1 and 13 of the Convention were communicated on 9 May 2003. On the same date the Court decided that Article 29 § 3 of the Convention should be applied and the admissibility and merits of the complaints be considered together. 4. The applicants and the Government each filed observations on the admissibility and the merits (Rule 59 § 1). THE FACTS 5. The first and fifth applicants were born in 1960. The second applicant was born in 1959. The third applicant was born in 1969. The fourth applicant was born in 1945. The sixth applicant was born in 1965. The applicants are nationals of Ukraine and reside in Beryslav, the Kherson Region. I. THE CIRCUMSTANCES OF THE CASE 6. In April 1998 the applicants initiated proceedings in the Beryslav City Court (the “Beryslav Court”) against the Department of Education of the Beryslav Municipal Council (the “Department”), seeking to recover an additional salary payment allegedly due to them for their time-in-service. 7. On 13 May 1998 the Beryslav Court allowed the applicants' claims and ordered the Department to pay the applicants the additional salary (time-in-service bonuses). In particular, it ordered that the first applicant be paid UAH 570.85[1] in compensation, the second – UAH 367.52[2], the third – UAH 204.3[3], the fourth – UAH 863.4[4], the fifth – UAH 561.4[5], and the sixth applicant – UAH 292.3[6]. 8. On 18 May 1998 the Beryslav City Bailiffs' service (the “Bailiffs”) initiated enforcement proceedings for the judgment of 13 May 1998. 9. On 2 August 1999 the Beryslav Court suspended the execution of the judgment for three months due to the lack of funds in the budget of the Department. 10. On 7 March 2001 the Bailiffs informed the applicants that the Beryslav Court had suspended the execution of the judgment of 13 May 1998. On 13 August 2002 the Bailiffs informed the applicants that the judgment of 13 May 1998 would be executed when the State had provided the necessary budgetary funding. The judgment remained unenforced due to the Department's lack of funds. 11. On 31 July 2003 the amounts due to them pursuant to the judgment of 13 May 1998 were transferred to the applicants. They received the following amounts (the initial sums awarded by that judgment having been subjected to taxation): the first applicant – UAH 401.2[7], the second applicant – UAH 276.35[8], the third applicant – UAH 173.18[9], the fourth applicant – UAH 640.46[10], the fifth applicant – UAH 419.94[11], and the sixth applicant – UAH 242.98[12]. II. RELEVANT DOMESTIC LAW 12. The relevant domestic law is set out in the judgment of 27 July 2004 in the case of Romashov v. Ukraine (no. 67534/01). THE LAW I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS AS TO THE ADMISSIBILITY OF THE APPLICATION A. The applicants' victim status 13. The Government mentioned that, in accordance with the jurisprudence of the Court, an applicant who has obtained reparation at the national level for an alleged violation of the Convention can no longer be considered a victim for the purposes of Article 34 of the Convention (see, Marchenko v. Ukraine (dec.), no. 63520/01, 17 September 2002). Accordingly, as the judgment of the 13 May 1998 has been executed in full, the applicants can no longer be considered victims of a violation of their rights under Article 6 § 1 of the Convention. They therefore proposed that the application be declared inadmissible or struck out of the Court's list of cases. 14. The applicants disagreed. They alleged that the judgment remained unenforced for a lengthy period of time and therefore they can still claim to be victims of a violation of Article 6. 15. The Court does not share the view of the Government. It considers that the applicants may still claim to be victims of an alleged violation of the rights guaranteed by the Article 6 § 1 of the Convention in relation to the period during which the judgment remained unexecuted (see Voytenko v. Ukraine, no. 18966/02, judgment of 6 June 2004, § 35; Shmalko v. Ukraine, no. 60750/00, judgment of 20 July 2004, § 34; Romashov v Ukraine, no. 67534/01, judgment of 27 July 2004, § 27). B. The objections as to the exhaustion of domestic remedies 16. The Government contended that the applicants have not exhausted domestic remedies as they did not lodge a claim with the domestic courts to challenge the inactivity of the State Bailiffs' Service, seeking to expedite the enforcement proceedings in the case. 17. The applicants contested this submission. 18. The Court recalls its recent case-law on this issue. It finds that the situation in this application is similar to the cases of Voytenko, Shmalko and Romashov (cited above, paragraphs 28-31, 37-39 and 30-32 respectively), and from which there is no reason to distinguish the present application. It concludes therefore that the applicants were absolved from pursuing further litigation and have complied with the requirements of Article 35 § 1 of the Convention. C. The Court's conclusion on the admissibility of the case 19. The Court finds that the application 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. II. AS TO THE ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 20. The applicants complain about the State authorities' failure to execute the judgment of the Beryslav City Court of 13 May 1998 given in their favour. They allege that the length of the enforcement proceedings was unreasonable. They further maintain that the judgments in their favour were never enforced as the sums that were due to them were not paid in full. They rely on Article 6 § 1 of the Convention, which in so far as relevant provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ...by an independent and impartial tribunal established by law.” 1. The submissions of the parties 21. The Government submitted that they took all measures required by the domestic legislation to enforce the judgment given in the applicants' favour. They further considered that there was no infringement of Article 6 § 1 of the Convention. Moreover, they maintained that the period from 13 May 1998 (the date of adoption of the judgment of the Beryslav City Court) until 31 July 2003 (the date of receipt by the applicants of the sums due to them in accordance with the judgment of 13 May 1998) does not violate the applicants' rights under Article 6 § 1 of the Convention and was caused by the difficult financial situation in the education system of Ukraine. Furthermore, they reiterated that the judgment given in the applicants' favour was executed in full. 22. The applicants disagreed. In particular, they complained that the execution proceedings lasted a very long time and that they did not receive the full amounts as awarded to them by the judgment of 13 May 1998. 2. The Court's assessment 23. The Court recalls that Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal; in this way it embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect. However, that right would be illusory if a Contracting State's domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. It would be inconceivable that Article 6 § 1 should describe in detail procedural guarantees afforded to litigants – proceedings that are fair, public and expeditious – without protecting the implementation of judicial decisions. To construe Article 6 as being concerned exclusively with access to a court and the conduct of proceedings would be likely to lead to situations incompatible with the principle of the rule of law which the Contracting States undertook to respect when they ratified the Convention. Execution of a judgment given by any court must therefore be regarded as an integral part of the “trial” for the purposes of Article 6 (see Hornsby v. Greece, judgment of 19 March 1997, Reports of Judgments and Decisions 1997-II, p. 510, § 40). 24. It is not open to a State authority to cite lack of funds as an excuse for not honouring a judgment debt, although a delay in the execution of a judgment may be justified in particular circumstances. However, the delay may not be such as to impair the essence of the right protected by Article 6 § 1 (see Immobiliare Saffi v. Italy [GC], no. 22774/93, § 74, ECHR 1999-V). 25. The Court notes that the judgment of 13 May 1998 remained unenforced wholly or in part at least until 31 July 2003, after the case had been communicated to the Government on 9 May 2003, when the debt owed to the applicants was paid to them. The Court considers that it is not necessary to assess the issue of whether the judgment was enforced in full in view of the fact that the awards were subjected to taxation. By failing for almost five years and two months to take the necessary measures to comply with the final judicial decisions in the present case, the Ukrainian authorities deprived the provisions of Article 6 § 1 of all useful effect. 26. There has accordingly been a violation of Article 6 § 1 of the Convention. III. AS TO THE ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 27. The applicants also complain that they had no effective remedies in respect of their complaints under Article 6 § 1 of the Convention. They invoke Article 13 of the Convention, which provides as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 28. The Court refers to its considerations at paragraph 18 above on the question of exhaustion of domestic remedies. For the same reasons, the Court concludes that the applicants did not have an effective domestic remedy, as required by Article 13 of the Convention, to redress the damage created by the delay in the present proceedings (see the aforementioned judgments in Voytenko, §§ 46-48, and Romashov, § 47). Accordingly, there has also been a breach of this provision. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 29. 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 and costs and expenses 30. The applicants claimed damages. They mentioned that the awards ultimately paid to them were added to their salary, resulting in higher income tax. Those sums had anyway decreased in value due to the inflation of the Ukrainian Hryvnia in the last couple years. The applicants claimed pecuniary damage in relation to the amounts awarded by the Beryslav City Court and not paid by the Department of Education as they were subjected to taxation. They further requested non-pecuniary damage amounting to USD 10,000[13]. 31. The Government contested the applicants' claims. They alleged that they were unsubstantiated. 32. The Court does not discern any causal link between the violations found and the pecuniary damage alleged by the applicants. It therefore makes no award in this respect. However, it takes the view that the applicants have suffered some non-pecuniary damage as a result of the violations found which cannot be made good by the Court's mere finding of a violation (see the aforementioned Romashov judgment, § 52). The particular amount claimed is, however, excessive. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards each of the applicants the sum of EUR 2,800 in non-pecuniary damage. The Court also awards each of the applicants' EUR 50 for costs and expenses. B. Default interest 33. 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 1. Declares the complaints under Articles 6 § 1 and 13 of the Convention concerning the lengthy non-enforcement of the final judicial decision in the applicants' case admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 13 of the Convention; 4. Holds: (a) that the respondent State is to pay each of the applicants, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 2,800 (two thousand eight hundred euros) in respect of non-pecuniary damage and EUR 50 (fifty euros) for costs and expenses, plus any tax that may be chargeable, these amounts to be converted into the currency of the respondent State at the rate applicable on 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; 5. Dismisses the remainder of the applicants' claim for just satisfaction. Done in English, and notified in writing on 9 November 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. T.L. EarlyJ.-P. CostaDeputy RegistrarPresident [1]. EUR 123.22 (at the rate as on 1 January 1999). [2]. EUR 79.33 (at the rate as on 1 January 1999). [3]. EUR 44.1 (at the rate as on 1 January 1999). [4]. EUR 186.57 (at the rate as on 1 January 1999). [5]. EUR 121.18 (at the rate as on 1 January 1999). [6]. EUR 63.1 (at the rate as on 1 January 1999). [7]. EUR 68.22 (at the rate as on 31 July 2003). [8]. EUR 46.99 (at the rate as on 31 July 2003). [9]. EUR 29.45 (at the rate as on 31 July 2003). [10]. EUR 108.91 (at the rate as on 31 July 2003). [11]. EUR 71.41 (at the rate as on 31 July 2003). [12]. EUR 41.32 (at the rate as on 31 July 2003). [13]. Around EUR 8,300.

FOURTH SECTION CASE OF N.TS. AND OTHERS v. GEORGIA (Application no. 71776/12) JUDGMENT STRASBOURG 2 February 2016 FINAL 02/05/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of N.Ts. and Others v. Georgia, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: András Sajó, President,Boštjan M. Zupančič,Nona Tsotsoria,Krzysztof Wojtyczek,Egidijus Kūris,Iulia Antoanella Motoc,Gabriele Kucsko-Stadlmayer, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 12 January 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 71776/12) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Ms N.Ts., acting initially on her own behalf and on that of her nephews, N.B., S.B. and L.B. (“the applicants”), on 2 November 2012. The Chamber decided of its own motion to grant the applicants anonymity pursuant to Rule 47 § 4 of the Rules of Court. 2. The applicants were represented by Ms N. Jomarjidze, Ms T. Abazadze, Ms K. Shubashvili and Ms T. Dekanosidze, lawyers of the Georgian Young Lawyers Association (GYLA). The Georgian Government (“the Government”) were represented by their Agent, Mr L. Meskhoradze, of the Ministry of Justice. 3. The applicants alleged that their right to respect for private and family life under Article 8 of the Convention had been breached on account of the domestic courts’ decision ordering the return of the children to their father. 4. On 26 March 2014 the application was communicated to the Government. On 2 June 2015, the parties were invited to submit additional observations. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. Ms N.Ts., is a Georgian national who was born in 1976 and lives in Tbilisi. Her three nephews ‒ N.B., and twin boys, S.B. and L.B. – were born in 2002 and 2006 respectively. The facts of the case, as submitted by the applicants, may be summarised as follows. A. Background information 6. Ms N.Ts.’s sister started a relationship with G.B. in 2000 and the couple moved in together. They had three children, N.B., S.B. and L.B. 7. In 2006 G.B. was convicted of drug abuse and given a five-year suspended sentence. In 2008 he was diagnosed with psychiatric and behavioural disorders. The same year he started methadone substitution treatment (as part of a specialised drug treatment programme). In 2009 G.B. was fined under the Code of Administrative offences for two additional incidents of drug abuse. 8. On 26 November 2009, the mother of the boys died in unrelated circumstances. The boys started living with their aunts and their maternal grandparents. At the end of December 2009 G.B. requested the return of the boys but the maternal family refused his request. 9. According to his medical file, in February 2010 G.B.’s addiction went into remission; no signs of disintegration of personality were observed and he was considered to be reacting appropriately vis-à-vis his surroundings. On 10 February 2010 he was diagnosed with an early remission stage. According to the medical report, he did not pose any threat either to himself or to the people surrounding him and was motivated to start a healthy life. According to another medical certificate dated 26 February 2010, G.B.’s central nervous system was not damaged and he was not suffering from any psychiatric pathology. B. Return proceedings 10. On 5 January 2010 G.B. asked the Tbilisi City Court under Article 1204 of the Civil Code to order the return of his sons. On 12 January 2010 the first instance court judge decided to involve the Social Service Agency (“the SSA”) in the proceedings. The court ordered that the case file be forwarded to the SSA, that the latter appoint a representative to protect the boys’ interests, and that the SSA conduct an assessment of the social environment and living conditions of the father and the maternal family. 11. The assessment was conducted by the Vake-Saburtalo regional branch of the SSA. Their representative visited the places of residence of G.B. and the maternal family and conducted conversations with G.B., the paternal grandparents, several of their neighbours, the maternal family and also a former babysitter of the boys. The social worker concerned concluded that the living conditions were satisfactory at both locations. As for the boys themselves, she noted the following: “As regards the children’s interests, they are in need of a caring and safe environment ... Both families should consider the needs of the children and how they can help them with a concerted mutual effort to most easily overcome the psychological trauma they have suffered because of the loss of their mother ...” 12. In parallel, the SSA’s Vake-Saburtalo regional branch arranged for a psychological examination of the boys. The psychologist involved managed to see only the twins in the presence of their father and a family friend. She concluded that they both had a twofold attitude towards their father, with warm feelings and love on the one hand and fear on the other hand. She further observed that certain emotional and behavioural problems of the boys were predetermined by their subconscious protest against the lack of a healthy relationship with both families and the incomprehensible situation in which they were living. In conclusion, the psychologist noted that the boys’ stressful situation was being further aggravated through having a negative image of their father imposed on them, which could in itself pose a threat to their psychological health and life (“the psychological report of 3 March 2010”). 13. In the interim, the Tbilisi City Court issued an interlocutory order allowing G.B. to see his children in the presence of two family friends. It is apparent from the case file that after just a few meetings, the third persons refused to participate in further meetings. 14. On 23 April 2010 the boys were taken to a paediatric hospital where, following psychological examination, all three were diagnosed with separation anxiety disorder. It was noted that all three children had a negative attitude towards their father and a range of fears with respect to him. According to the medical report, they also displayed severe anxiety as a result of the death of their mother. It was recommended that no change be made to their living environment in order to avoid causing further stress to them. 15. In addition, on 26 April 2010 specialists from an Institute of Psychology concluded, on the basis of the material in the case file, that ‒ in view of the emotional stress the boys had suffered as a result of the death of their mother and the fact that their habitual place of residence was that of their maternal grandparents and aunts ‒ it was not advisable for them to return to their father. The questions put to the specialists had been prepared by the lawyer acting on behalf of the maternal family. The specialists also examined the older boy in person and observed the following: “... [N. B.] feels frustrated because of the situation he is in and gets easily irritated ... the child is sensitive and seeks relief in a safe environment and in a fantasy world ... he escapes everything that is undesirable for him in order to avoid additional trauma ... We consider that at this stage a drastic change in [N.B.’s] situation is not advisable, in order to avoid additional irritation and traumatisation of the boy and to allow him rehabilitation in a calm environment. Obviously, it would be useful if he could develop a close relationship with his father and could perceive him as a guardian and protector, but in order to achieve that, in our view, some more time will be needed. The father should gain his confidence and the child should gradually feel the need to communicate with his father again ... For the psychological wellbeing of the children ... we consider it necessary to facilitate an appropriate process of readjustment between the father and his children, i.e. for a certain period of time (a minimum of one year) the father should communicate with the children within a stable regime and a formally accepted format, to regain their trust.” 16. On 30 April 2010 the SSA scheduled another psychological examination of the boys. But it turned out to be impossible to conduct as the father had only agreed to their check-up on condition that it would be conducted in his presence and in a neutral place. However, according to the maternal family, the boys refused to see him. 17. On 18 May 2010 the Tbilisi City Court ordered that the three boys be returned to their father. Taking into account G.B.’s latest medical record, the court concluded that he was fit to resume his parental responsibilities. At the same time, the competent judge dismissed the medical report on the children’s mental state as unreliable; she concluded that the experts’ conclusions contradicted the factual circumstances and were based on facts which had not been derived from the case file. She further observed that from a psychological point of view the twin boys were ready to be reunited with their father; they were traumatised as a result of the death of their mother and were in need of a relationship with their father. As for the older boy, the judge observed − referring to the psychologists’ reports ‒ that he had had pre-prepared answers. 18. In conclusion the court noted: “In view of all the above and having regard to the fact that the children’s mother has passed away, the separation of the children from their father and their family environment breaches their right to be raised in a family and runs contrary to their interests ... In the current case it has been established that the respondents do not have any legal right to keep the children with them. The applicant [G.B.]’s parental rights have not been restricted ... It has been established that the return of the children to their father would not be against their interests but, on the contrary, would be beneficial and is necessary. ... With the children’s best interests in mind, [G.B.’s] request is hereby granted, since bringing the children up in a family environment will have a positive effect on their physical and intellectual development”. 19. According to the case file, representatives from the SSA were not involved in the above proceedings. 20. The maternal family filed an appeal. They claimed inter alia that the court of first instance had assessed the available psychological evidence in a one-sided manner; in particular, it had relied on the SSA’s conclusion ‒ which was unreliable ‒ while rejecting the other medical reports in an unsubstantiated manner. They also criticised the fact that the court had put the father’s rights at the centre of its decision instead of being guided by the best interests of the children. 21. On 24 February 2011 the Tbilisi Court of Appeal quashed the first-instance court’s decision and ruled that the children should stay with their maternal family. The appeal court referred to the psychological reports, according to which the boys were in need of a stable and safe environment and any forceful change in this respect could aggravate their already stressful situation. The panel of three judges concluded as follows: “... At this stage, the return of the children to G.B. before some more time has passed and his recovery is officially confirmed by specialists, ... thereby putting the children at risk, is considered inappropriate by the chamber [from the point of view of the children’s] own safety. The chamber considers that not only should G.B. demonstrate that he has recovered but should, at the same time, prepare the children psychologically for a change in [their] situation, in order to facilitate their subsequent adjustment.” 22. The panel further noted that they shared the views of the specialists, according to which the process of the boys’ adjustment to their father should happen naturally. Given that for various objective and subjective reasons the boys remained stressed in their relationship with their biological father, their removal from their habitual environment could, in the view of the judges, have adverse effects on them. 23. According to the court record, the representatives of the SSA and their district branch were involved in the appeal proceedings with the status of an “interested party”. 24. On 11 October 2011 the Supreme Court of Georgia remitted the case to the appeal court for re-examination. The court noted the following gaps in the decision of the Tbilisi Court of Appeal: “In view of the specific circumstances of the case, and having regard to the interests of the children, who are minors, the court of cassation has examined in detail the material on the case file concerning the determination of the children’s place of residence and concludes that the decision in question fails to establish beyond any doubt the necessity of separating the parent and the children ... It is indisputable that drug addiction has a negative influence on the state of mind of a person. However, bearing in mind that G.B. is being treated, and that according to the evidential material his treatment has brought positive results, [his drug addiction] does not provide a basis for drawing the unambiguous conclusion that living with their father would be insecure and dangerous for the children. At the same time, the cassation court observes that in such circumstances, when there is a suspicion of creating an unhealthy environment for minors, a court may ‒ according to the civil procedural law ‒ at its own initiative involve custody and guardianship authorities in order to monitor the children’s upbringing ... The cassation court would like to emphasise that although the opinion of a child concerning the determination of his or her place of residence is very important, it may be disregarded if it does not correspond to his or her interests ... The cassation court particularly notes that whenever there is a doubt ‒ requiring urgent reaction ‒ as to whether a parental right is being properly exercised, or whether questions concerning a child’s upbringing have been properly decided, all the bodies concerned, and above all the court ‒ which has inquisitorial power to establish and examine factual circumstances ‒ is obliged to take all measures provided for by law to protect the children’s rights and to actively involve the competent authorities to redress the situation. When considering the current case, reference must be made to Article 11981 of the Civil Code, which obliges the custody and guardianship body to engage actively in protecting the rights of minors, including their right to education, rather than simply limiting itself to making general observations and assessing their living conditions. The cassation court observes from the material on the case file that there is a clear violation of the children’s rights from the perspective of their physical, mental, emotional, and social development and upbringing, since their legal representative – their father ‒ is not able to take the requisite steps as regards the children’s education ...” 25. Lastly, the court noted ‒ along the same line of reasoning as the appeal court ‒ the importance of the psychological preparation of the children for a change in their situation. It observed, however, that despite the interlocutory measure ordered by the first-instance court, no meetings between the children and their father were being organised, since the family friends had refused to take part in those meetings. In such circumstances, it was unclear how a natural adjustment process with the father could be expected. 26. In November 2011 the proceedings recommenced at the Tbilisi Court of Appeal. The maternal family members alleged that G.B. was not interested in seeing his boys and re-establishing contact and a relationship with them. They claimed that the last time he had seen the boys had been in April 2010. They also criticised the fact that G.B. had spoken openly about the contentious situation concerning the boys on a TV show, following which the children had allegedly been further traumatised. The older one was ashamed of going to school because everyone knew his family situation and, according to the maternal family, would ask him questions about his “drug-addicted” father. The maternal family members also claimed that the SSA had shown absolutely no interest in the children, not checking on them for more than a year. The father, for his part, stated that he would not want his children to go with him unless they changed their mind. On 24 November 2011, acting at the request of G.B., the court issued an interlocutory measure under which the latter was allowed to see his children in the presence of a representative of the SSA. The appeal court also asked the SSA to report on the progress of those meetings. 27. On 11 and 18 December 2012 three social workers went to see the boys at their maternal family’s apartment. According to the report drawn up thereafter (“the report of 4 January 2012”), during both of the visits the members of the maternal family reacted negatively. The boys refused to stay and talk to the social workers alone on 11 December 2012, and at the second meeting only the older boy spoke with the social workers. The social workers concluded that the psycho-emotional condition of the children had deteriorated. Furthermore, according to the report, N. explicitly expressed a negative attitude towards his father and the social workers. In this regard the social workers observed: “The child was clearly nervous, the situation in which he found himself influenced him significantly and he was hysterically repeating that he did not want to live with his father, that “his father had killed his mother and he was a monster”, that “the appearance of the father had brought him trouble and that he was ashamed of his father in the eyes of his friends”. In view of the emotional state of mind of the child we were forced to stop the conversation.” 28. The report concluded the following: “... the psycho-emotional condition of the children ‒ nine-year-old N. and six-year-old L. and S. ‒ is very serious. The children do not have a mother and are being raised in the absence of the only parent in an environment hostile towards their father ... We consider that the biological father of the children, G.B. has the human and material resources to take care of his children and create for them appropriate conditions for their development. We also consider that a relationship between the children and their father is necessary for the children’s future, so that they develop into fully-fledged members of society”. 29. In January 2012 the older boy was taken for psychological examination to a paediatric hospital, where he was diagnosed with anxiety phobia disorders. It was recommended that he undergo a psychotherapy course and live in a stable, calm and safe environment. 30. By a decision of 2 February 2012 the Tbilisi Court of Appeal reversed its decision of 24 February 2011, concluding that the children should live with their father. The court referred to the report of 4 January 2012 concluding that the children had been negatively influenced by their maternal family and that their attitude towards their father had been shaped accordingly. In particular, the court stated: “The chamber notes that since 2009 the attitude of the children towards their father has worsened and that this has happened despite the fact that the father has not in fact been given an opportunity to communicate with his children. Accordingly, the father could not have negatively influenced his children. The chamber considers that the children’s negative attitude towards [their father] is a result of powerful, unhealthy psychological influence and inappropriate educational methods [used] by the persons providing for their upbringing”. 31. And, “... [T]he return of the children to their father would be beneficial and is necessary for them. In view of the factual circumstances established in the case, the court considers that for the children to stay with the respondents would breach the father’s parental rights as well as the children’s interests, since in such a case the children will be separated from their father and the family environment. This in itself is a violation of the fundamental principle enshrined in the Convention on the Rights of a Child – that for the purposes of a comprehensive and harmonious development children should live in a family environment, in an atmosphere of happiness, love and mutual understanding. This is particularly relevant in view of the fact that the attitude of the children towards their father, under the influence of those with whom they are living, is becoming more negative than positive, a fact which, in the opinion of the chamber, runs contrary to their interests. The children are being raised with a hostile attitude towards their father, which is totally unacceptable ...” 32. Relying on Article 3 of the Convention on the Rights of the Chid, and Articles 1197-1199 and Article 1204 of the Civil Code, the Tbilisi Court of Appeal concluded that there was no legal basis for the boys to stay with their maternal grandparents and aunts, and that it was in their best interests to be reunited with their father. 33. The aunts and the maternal grandparents filed an appeal on points of law, which was rejected by the Supreme Court of Georgia on 3 May 2012. C. Enforcement proceedings 34. On 4 June 2012 the Tbilisi City Court issued an execution order for enforcement of the decision concerning the return of the boys to the father. The handover which was due to take place on 25 June 2012 in the presence of a social worker failed, however, since the boys refused to go with their father. A psychologist who was there at the invitation of the maternal family noted in the subsequent report that the boys had been afraid of being taken by force by their father; they had cried as they had not want to go with him. She concluded that G.B. should look for other ways of regaining their trust and re-establishing a relationship with his children. On 14 September 2012 a further attempt to enforce the court decision was likewise unsuccessful. According to the report drawn up thereafter, the children had refused to move in with their father. 35. According to the case file, the domestic courts’ decision has not been enforced to date. Neither the SSA nor the father has taken any additional measures for that purpose. The boys are currently living with their maternal grandparents and aunts. II. RELEVANT DOMESTIC LAW A. The Civil Code of Georgia 36. The Civil Code of Georgia contains a special chapter regulating the relationship between parents and children. Article 1199 states that the rights of parents shall not be exercised in such a way that would harm the interests of their children. The relevant Articles of the Civil Code further state: Article 1200 – Upbringing of children with the mutual agreement of parents “... 2. If parents fail to agree, the disputed issue shall be decided by a court with their participation. In such a case, the right of a parent to represent his or her child in connection with the court dispute shall be suspended. The custody and guardianship body shall appoint a representative who will represent the interests of a child in the court proceedings.” Article 1204 – Right to request the return of a child who is a minor “1. Parents have the right to request a court order for the return of a child from a person who has taken the child into his or her care without any legal grounds or corresponding court decision. 2. The court may refuse such a request if it is not in the child’s interests.” B. The Civil Code of Procedure of Georgia 37. The relevant provisions of the Civil Code of Procedure of Georgia read as follows: Article 81 – Civil procedural legal personality “3. The rights of minors between seven and eighteen years of age ... and their legal interests shall be protected in court by their parents, foster parents or guardians. At the same time, the court is under an obligation to involve those minors in the relevant proceedings.” Article 162 – Court order for a forensic examination “If, during the examination of a case, an issue arises that requires specialist knowledge, the court may, at the request of the parties or on its own initiative, order a forensic examination.” 38. Article 354 of the above Code provides that when examining family disputes the courts may, on their own initiative, request additional evidence. C. The Rules of the Social Service Agency 39. The Social Service Agency (“the SSA”) is a public law entity which was created by and functions under the Ministry of Health, Labour and Social Affairs. The SSA is responsible, inter alia, for overseeing and implementing state programs concerning social rehabilitation and the protection of children. Article 2 § 2 (f1) of its Rules states that the Agency shall provide and coordinate the adoption, custody and care of orphans and children left without parental care. III. RELEVANT INTERNATIONAL LAW A. The International Convention on the Rights of the Child 40. The relevant provisions of the United Nations Convention on the Rights of the Child (“the CRC”), which entered into force for Georgia in 1994, read as follows: Article 3 “1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” ... Article 9 “1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents ... 2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.” Article 12 “1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.” 41. In General Comment no. 14 on the right of the child to have his or her best interests taken as a primary consideration, published on 29 May 2013 (CRC/C/GC/14), the Committee on the Rights of the Child stated, inter alia, the following: The child’s best interests and the right to be heard (art. 12) 43. Assessment of a child’s best interests must include respect for the child’s right to express his or her views freely and due weight given to said views in all matters affecting the child. This is clearly set out in the Committee’s general comment No. 12 which also highlights the inextricable links between articles 3, paragraph 1, and 12. The two articles have complementary roles: the first aims to realize the child’s best interests, and the second provides the methodology for hearing the views of the child or children and their inclusion in all matters affecting the child, including the assessment of his or her best interests. Article 3, paragraph 1, cannot be correctly applied if the requirements of article 12 are not met. Similarly, article 3, paragraph 1, reinforces the functionality of article 12, by facilitating the essential role of children in all decisions affecting their lives. 44. The evolving capacities of the child (art. 5) must be taken into consideration when the child’s best interests and right to be heard are at stake ... [A]s the child matures, his or her views shall have increasing weight in the assessment of his or her best interests. Babies and very young children have the same rights as all children to have their best interests assessed, even if they cannot express their views or represent themselves in the same way as older children. States must ensure appropriate arrangements, including representation, when appropriate, for the assessment of their best interests; the same applies for children who are not able or willing to express a view. 45. The Committee recalls that article 12, paragraph 2, of the Convention provides for the right of the child to be heard, either directly or through a representative, in any judicial or administrative proceeding affecting him or her ... Elements to be taken into account when assessing the child’s best interests ... (a) The child’s views 53. Article 12 of the Convention provides for the right of children to express their views in every decision that affects them. Any decision that does not take into account the child’s views or does not give their views due weight according to their age and maturity, does not respect the possibility for the child or children to influence the determination of their best interests. 42. The relevant parts of General Comment no. 12 on the right of the child to be heard, published on 20 July 2009 (CRC/C/GC/12) by the Committee on the Rights of the Child read as follows: I. Introduction 2. The right of all children to be heard and taken seriously constitutes one of the fundamental values of the Convention. The Committee on the Rights of the Child (the Committee) has identified article 12 as one of the four general principles of the Convention, the others being the right to non-discrimination, the right to life and development, and the primary consideration of the child’s best interests, which highlights the fact that this article establishes not only a right in itself, but should also be considered in the interpretation and implementation of all other rights ... A. Legal analysis (a)Paragraph 1 of article 12 (i)“Shall assure” 19. Article 12, paragraph 1, provides that States parties “shall assure” the right of the child to freely express her or his views. “Shall assure” is a legal term of special strength, which leaves no leeway for State parties’ discretion. Accordingly, States parties are under strict obligation to undertake appropriate measures to fully implement this right for all children. This obligation contains two elements in order to ensure that mechanisms are in place to solicit the views of the child in all matters affecting her or him and to give due weight to those views. ii)“Capable of forming his or her own views” 20. States parties shall assure the right to be heard to every child “capable of forming his or her own views”. This phrase should not be seen as a limitation, but rather as an obligation for States parties to assess the capacity of the child to form an autonomous opinion to the greatest extent possible. This means that States parties cannot begin with the assumption that a child is incapable of expressing her or his own views. On the contrary, States parties should presume that a child has the capacity to form her or his own views and recognize that she or he has the right to express them; it is not up to the child to first prove her or his capacity. 21. The Committee emphasizes that article 12 imposes no age limit on the right of the child to express her or his views, and discourages States parties from introducing age limits either in law or in practice which would restrict the child’s right to be heard in all matters affecting her or him ... (iii)“The right to express those views freely” 22. The child has the right “to express those views freely”. “Freely” means that the child can express her or his views without pressure and can choose whether or not she or he wants to exercise her or his right to be heard. “Freely” also means that the child must not be manipulated or subjected to undue influence or pressure. “Freely” is further intrinsically related to the child’s “own” perspective: the child has the right to express her or his own views and not the views of others. (iv)“In all matters affecting the child” 26. States parties must assure that the child is able to express her or his views “in all matters affecting” her or him. This represents a second qualification of this right: the child must be heard if the matter under discussion affects the child. This basic condition has to be respected and understood broadly. (v)“Being given due weight in accordance with the age and maturity of the child” 28. The views of the child must be “given due weight in accordance with the age and maturity of the child”. This clause refers to the capacity of the child, which has to be assessed in order to give due weight to her or his views, or to communicate to the child the way in which those views have influenced the outcome of the process. Article 12 stipulates that simply listening to the child is insufficient; the views of the child have to be seriously considered when the child is capable of forming her or his own views. (b)Paragraph 2 of article 12 (i)The right “to be heard in any judicial and administrative proceedings affecting the child” 32. Article 12, paragraph 2, specifies that opportunities to be heard have to be provided in particular “in any judicial and administrative proceedings affecting the child”. The Committee emphasizes that this provision applies to all relevant judicial proceedings affecting the child, without limitation, including, for example, separation of parents, custody, care and adoption, ... 33. The right to be heard applies both to proceedings which are initiated by the child, such as complaints against ill-treatment and appeals against school exclusion, as well as to those initiated by others which affect the child, such as parental separation or adoption ... ii)“Either directly, or through a representative or an appropriate body” 35. After the child has decided to be heard, he or she will have to decide how to be heard: “either directly, or through a representative or appropriate body”. The Committee recommends that, wherever possible, the child must be given the opportunity to be directly heard in any proceedings. 36. The representative can be the parent(s), a lawyer, or another person (inter alia, a social worker). However, it must be stressed that in many cases (civil, penal or administrative), there are risks of a conflict of interest between the child and their most obvious representative (parent(s)). If the hearing of the child is undertaken through a representative, it is of utmost importance that the child’s views are transmitted correctly to the decision maker by the representative. The method chosen should be determined by the child (or by the appropriate authority as necessary) according to her or his particular situation. Representatives must have sufficient knowledge and understanding of the various aspects of the decision-making process and experience in working with children. 37. The representative must be aware that she or he represents exclusively the interests of the child and not the interests of other persons (parent(s)), institutions or bodies (e.g. residential home, administration or society). Codes of conduct should be developed for representatives who are appointed to represent the child’s views. 3. Obligations of States parties 1. Articles 12 and 3 70. The purpose of article 3 is to ensure that in all actions undertaken concerning children, by a public or private welfare institution, courts, administrative authorities or legislative bodies, the best interests of the child are a primary consideration. It means that every action taken on behalf of the child has to respect the best interests of the child. The best interests of the child is similar to a procedural right that obliges States parties to introduce steps into the action process to ensure that the best interests of the child are taken into consideration. The Convention obliges States parties to assure that those responsible for these actions hear the child as stipulated in article 12. This step is mandatory. 71. The best interests of the child, established in consultation with the child, is not the only factor to be considered in the actions of institutions, authorities and administration. It is, however, of crucial importance, as are the views of the child. ... 74. There is no tension between articles 3 and 12, only a complementary role of the two general principles: one establishes the objective of achieving the best interests of the child and the other provides the methodology for reaching the goal of hearing either the child or the children. In fact, there can be no correct application of article 3 if the components of article 12 are not respected. Likewise, article 3 reinforces the functionality of article 12, facilitating the essential role of children in all decisions affecting their lives. B. Other international instruments 43. The relevant parts of the Guidelines of the Committee of Ministers of the Council of Europe on Child-Friendly Justice, adopted by the Committee of Ministers on 17 November 2010 at the 1098th meeting of the Ministers’ Deputies, provide: I. Scope and purpose 1. The guidelines deal with the issue of the place and role, as well as the views, rights and needs of the child in judicial proceedings as well as in alternatives to such proceedings. 2. The guidelines should apply to all ways in which children are likely to be, for whatever reason and in whatever capacity, brought into contact with all competent bodies and services involved in implementing criminal, civil or administrative law. 3. The guidelines aim to ensure that, in any such proceedings, all rights of children, among which the right to information, to representation, to participation and to protection, are fully respected with due consideration to the child’s level of maturity and understanding as well as to the circumstances of the case. Respecting children’s rights should not jeopardise the rights of other parties involved. ... A. Participation 1. The right of all children to be informed about their rights, to be given appropriate ways to access justice and to be consulted and heard in proceedings involving or affecting them should be respected. This includes giving due weight to the children’s views bearing in mind their maturity and any communication difficulties they may have in order to make this participation meaningful. ... 2. Legal counsel and representation 37. Children should have the right to their own legal counsel and representation, in their own name, in proceedings where there is, or could be, a conflict of interest between the child and the parents or other involved parties ... 43. Adequate representation and the right to be represented independently from the parents should be guaranteed, especially in proceedings where the parents, members of the family or caregivers are the alleged offenders. 3. Right to be heard and to express views 44. Judges should respect the right of children to be heard in all matters that affect them or at least to be heard when they are deemed to have a sufficient understanding of the matters in question. Means used for this purpose should be adapted to the child’s level of understanding and ability to communicate and take into account the circumstances of the case. Children should be consulted on the manner in which they wish to be heard. 45. Due weight should be given to the child’s views and opinion in accordance with his or her age and maturity. 46. The right to be heard is a right of the child, not a duty on the child ... 49. Judgments and court rulings affecting children should be duly reasoned and explained to them in language that children can understand, particularly those decisions in which the child’s views and opinions have not been followed. 44. On 25 January 1996 the Council of Europe adopted the Convention on the Exercise of Children’s Rights, which entered into force on 1 July 2000. To date, the Convention has been signed by twenty-eight Council of Europe Member States and ratified by twenty. Georgia is not a party to the Convention. The relevant parts of the Convention read as follows: Article 3 – Right to be informed and to express his or her views in proceedings “A child considered by internal law as having sufficient understanding, in the case of proceedings before a judicial authority affecting him or her, shall be granted, and shall be entitled to request, the following rights: a. to receive all relevant information; b. to be consulted and express his or her views; c. to be informed of the possible consequences of compliance with these views and the possible consequences of any decision.” Article 6 – Decision-making process “In proceedings affecting a child, the judicial authority, before taking a decision, shall: a. consider whether it has sufficient information at its disposal in order to take a decision in the best interests of the child and, where necessary, it shall obtain further information, in particular from the holders of parental responsibilities; b. in a case where the child is considered by internal law as having sufficient understanding: – ensure that the child has received all relevant information; – consult the child in person in appropriate cases, if necessary privately, itself or through other persons or bodies, in a manner appropriate to his or her understanding, unless this would be manifestly contrary to the best interests of the child; – allow the child to express his or her views; c. give due weight to the views expressed by the child.” Article 9 – Appointment of a representative “1. In proceedings affecting a child where, by internal law, the holders of parental responsibilities are precluded from representing the child as a result of a conflict of interest between them and the child, the judicial authority shall have the power to appoint a special representative for the child in those proceedings ...” C. Role of representatives Article 10 “1. In the case of proceedings before a judicial authority affecting a child the representative shall, unless this would be manifestly contrary to the best interests of the child: a. provide all relevant information to the child, if the child is considered by internal law as having sufficient understanding; b. provide explanations to the child if the child is considered by internal law as having sufficient understanding, concerning the possible consequences of compliance with his or her views and the possible consequences of any action by the representative; c. determine the views of the child and present these views to the judicial authority ...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 45. Ms N.Ts. complained of a violation of the right to respect for private and family life in respect of herself and her nephews. She relied on Article 8 of the Convention, which reads: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”. A. The scope of the application 46. In her written observations filed with the Court Ms N.Ts. made it clear that she was complaining solely in the name and on behalf of her nephews and was not pursuing any possible complaints on her own behalf. In their comments on the above submission, the Government claimed that the aunt did not have locus standi to complain on behalf of her nephews. 47. The Court notes the applicants’ clarified submissions and the Government’s reply thereto. Accordingly, it will not examine Ms. N.Ts.’s complaints under Article 8 of the Convention and will limit its consideration of the current case to the following two questions: whether Ms N.Ts. has locus standi to complain on behalf of her nephews and, if so, whether the boys’ right to respect for their private and family life has been violated on account of the domestic courts’ decision to return them to their father. B. Admissibility 1. The parties’ submissions (a) The Government 48. The Government submitted that the aunt did not have the necessary standing to act on behalf of her nephews. Their argument in this respect was threefold: firstly, the father of the boys has never been deprived of his parental rights and was the sole legal guardian of the boys after the death of their mother (see Kruškić and Others v. Croatia, (dec.), no. 10140/13, 25 November 2014). Secondly, the boys have never been placed under the guardianship of their aunt and she hence had no legal basis for representing their interests. Even in the context of the domestic proceedings, the interests of the boys had been ‒ according to the Government ‒ represented by a representative of the SSA and not by her. In any event, Ms N.Ts.’s status as an aunt did not amount to family life with the boys meriting protection under Article 8 of the Convention. 49. The Government further submitted that in any case the application was premature since the decision of the domestic courts ordering the return of the boys to their father had not yet been enforced and the boys were continuing to live with their maternal family. (b) The applicants 50. The applicants, referring to the Court’s judgment in the case of Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania ([GC], no. 47848/08, § 103, ECHR 2014), submitted that at the moment of lodging the application the boys were ten (the older boy) and six (the twins) years of age; they were in a vulnerable situation and deprived of any practical means of lodging a complaint with the Court on their own. In view of the death of their mother and their hostile attitude towards their father, they had no one except their maternal aunt who could complain on their behalf. The children’s vulnerable position, in the applicant’s view, justified the application of a less restrictive approach with respect to the locus standi in the current case. They also observed that such an approach has already been applied by the Court in several cases (see İlhan v. Turkey [GC], no. 22277/93, §§ 49-55, ECHR 2000‑VII, and Y.F. v. Turkey, no. 24209/94, § 31, ECHR 2003‑IX), including cases where the interests of children were at stake (see Becker v. Denmark no. 7011/75, 3 October 1975; Siebert v. Germany (dec.), no. 59008/00 9 June 2005; and Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, §§ 138-139, ECHR 2000‑VIII). 51. In support of the aunt’s locus standi the applicants further relied on Article 37 of the Convention and claimed that respect for human rights as defined in the Convention required the Court to continue with the examination of the current case. They recalled in this connection the case-law of the Court where, in the interests of protecting human rights, next of kin had been allowed to continue with applications on behalf of deceased applicants (see Karner v. Austria, no. 40016/98, §§ 24-28, ECHR 2003‑IX, and Micallef v. Malta, no. 17056/06, §§ 44-51, 15 January 2008). 2. The Court’s assessment (a) Recapitulation of the principles 52. In the recent cases of Centre for Legal Resources on behalf of Valentin Câmpeanu (cited above) and Lambert and Others v. France ([GC], no. 46043/14, ECHR 2015 (extracts)), the Court has reiterated that where the application is not lodged by the victims themselves, Rule 45 § 3 of the Rules of Court requires the production of a signed written authority to act. It is essential for representatives to demonstrate that they have received specific and explicit instructions from the alleged victim on whose behalf they purport to act before the Court. However, special considerations may arise in the case of victims of alleged breaches of Articles 2, 3 and 8 of the Convention at the hands of the national authorities. Applications lodged by individuals or associations on behalf of the victim or victims have thus been declared admissible even though no valid form of authority has been presented (see İlhan v. Turkey [GC], no. 22277/93, §§ 53-55, ECHR 2000‑VII; Y.F. v. Turkey, no. 24209/94, § 29, ECHR 2003‑IX; Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, § 103; see also Association for the Defence of Human Rights in Romania – Helsinki Committee on behalf of Ionel Garcea v. Romania, no. 2959/11, §§ 42-46, 24 March 2015). 53. According to the Court’s case-law, particular consideration has been shown with regard to victims’ vulnerability on account of their age, sex or disability in cases where these factors have rendered them unable to lodge a complaint on the matter with the Court, due regard also being paid to the connections between the person lodging the application and the victim (see, Ilhan, cited above, §§ 53-55). 54. Specifically with respect to children, the Court has previously held that the position of children under Article 34 calls for careful consideration, since they generally have to rely on others to present their claims and represent their interests, and may not be of an age or capacity to authorise steps to be taken on their behalf in any real sense. A restrictive or technical approach in this area is therefore to be avoided (see S.D., D.P. and A.T. v. the United Kingdom, no. 23715/94, Commission decision of 20 May 1996; P.,C. and S. v. the United Kingdom (dec.), 56547/00, 11 December 2001; C. and D. v. the United Kingdom (dec.), no. 34407/02, 31 August 2004; Giusto, Bornacin and V. v. Italy, no.38972/06, 15 May 2007; Moretti and Benedetti v. Italy, no. 16318/07, § 32, 27 April 2010; Šneersone and Kampanella v. Italy, no. 14737/09, § 61, 12 July 2011; M.D. and Others v. Malta, no. 64791/10, § 37, 17 July 2012; and A.K. and L. v. Croatia, no. 37956/11, § 47, 8 January 2013). The key consideration in such cases is that any serious issues concerning respect for a child’s rights should be examined (see C. and D., P., C. and S., and M.D. and Others, both cited above; see also Scozzari and Giunta, cited above, § 138; Tonchev v. Bulgaria, no. 18527/02, § 31, 19 November 2009; and Hromadka and Hromadkova v. Russia, no. 22909/10, § 118, 11 December 2014). (b) Application to the present case 55. The Court considers that the three boys in the current case were clearly in a vulnerable position. They were minors who had lost their mother and had a complicated, if not hostile, relationship with their father. Their aunt submitted the current application in their name. It is undisputed that she has actively participated in the upbringing of the boys, cared for them and, at least as far as the post-December 2009 period is concerned, provided a home for them. At the moment of lodging the application with the Court, the boys had been permanently residing with their maternal family for more than two years. In present circumstances, there is no doubt that the aunt had a sufficiently close link with her nephews ‒ the direct alleged victims of a violation under Article 8 of the Convention ‒ to complain on their behalf. It hence remains to determine whether the current case satisfies two additional criteria from the perspective of the Court’s relevant case-law: first, the risk that without the aunt’s complaint, the boys will be deprived of effective protection of their rights; and that there is no conflict of interests between them and their aunt (see Lambert, cited above, § 102). 56. As to the first criterion, the Court observes that in view of the boys’ family situation, namely the death of their mother and their obvious alienation from their father, there seems to be no closer next of kin who could complain on their behalf. No family members other than the father and the maternal grandparents and aunts expressed any interest in the relevant domestic proceedings (see paragraphs 10 and 20 above). The father, given the outcome of the domestic proceedings, is clearly showing no interest at all (see also paragraphs 34-35 above). As for potential institutional alternatives to handle their representation, the Court observes that the SSA was itself the subject of criticism in the current application. It would therefore not have been realistic to expect them to facilitate, on behalf of the children, the bringing of a complaint which is in part a criticism of the system they represented. There was therefore no alternative source of representation in the present case which would render their aunt’s assumption of the role inappropriate or unnecessary. 57. As to the second criterion, the Court observes that the core of the complaint in the current case is the alleged failure of the domestic authorities to comply procedurally with the requirements of the Convention and to act in the best interests of the children. In view of the object and scope of the application (see paragraphs 46-47 above and paragraph 73 below), the Court does not see how there could be a conflict of interests between the aunt and her nephews on this very point (see S.D., D.P. and A.T. (dec.), cited above). The fact that Ms N.Ts. is not complaining in her own name further supports the above understanding of the Court (see, a contrario, Kruškić and Others (cited above), § 97). 58. The Government in their observations relied largely on the Court’s decision in the case of Kruškić and Others (see paragraph 48 above). The Court observes that in the course of the domestic proceedings conducted in the current case, unlike in the above-cited one, the children were never represented by a guardian ad litem, a lawyer who could have procedurally acted on their behalf (compare with Kruškić and Others, cited above, §§ 76, 85, and 87). The SSA, which the Government claim was responsible for representing the boys’ interests, in fact held the status of a mere “interested party”, without intrinsic procedural rights (see paragraphs 74-77 below). Furthermore, while the focus in the Kruškić case was the interruption of a grandparent-grandchildren relationship, the main issue at stake in the instant case is the alleged disregard by the domestic authorities of the best interests of the children and the procedural flaws of the proceedings in question. In this connection, and having regard to the scope of the current application (see paragraphs 46-47 above) the Government’s argument concerning the non-existence of family life between the aunt and her nephews for the purposes of Article 8 of the Convention is irrelevant. 59. In view of all the above mentioned, and having regard to the fact that the present application in the Court’s opinion concerns important interests of the boys, which merit consideration under the Convention, it considers that the aunt has standing to lodge an application on behalf of her nephews. It follows that the Government’s objection in this regard must be dismissed. 60. As to the Government’s argument that the application is premature, the Court notes that the decision to return the boys to their father is final and enforceable. An execution order was issued on 4 June 2012 and there have been two attempts, albeit unsuccessful, to remove the boys from their maternal family. Although issued more than three years ago, the decision continues to have full legal effect. It is not possible to challenge its enforcement and the Government have not pleaded before the Court that the father has abandoned the idea of seeking the return of his children. In those circumstances, the Court considers that the children may claim to be victims within the meaning of Article 34 of the Convention (see, mutatis mutandis, Shamayev and Others v. Georgia and Russia, no. 36378/02, § 358, ECHR 2005‑III, and Abdulazhon Isakov v. Russia, no. 14049/08, § 100, 8 July 2010). The Government’s objection concerning the children’s lack of victim status is accordingly dismissed. 61. The Court notes that the application 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. C. Merits 1. The parties’ submissions (a) The Government 62. The Government submitted that the domestic courts had conducted an in-depth examination of a whole series of factors regarding the children before ordering their return to their father. They argued that the participation of the SSA and of psychologists in the proceedings was a guarantee that the children’s voice had been heard. In relation to the particular factual circumstances of the case, the Government emphasised that G.B. had never been deprived of his parental rights; he was no longer dependent on drugs and, according to expert conclusions, was ready to resume his parental responsibilities. He also had adequate financial resources and appropriate living conditions in which to take care of his own children. 63. As to the children’s attitudes, the Government maintained that the children were living under the negative influence of their maternal family, and that their stay in such an unhealthy psychological environment conflicted with their best interests. 64. The Government further emphasised that in line with the requirements of Article 81 of the Civil Code of Procedure, the older boy had been involved in the domestic proceedings via the representatives of the SSA. They argued in this connection that the above provision should not be interpreted as obliging domestic courts to involve minors directly in the relevant proceedings. 65. In conclusion, the Government pointed out that the margin of appreciation accorded to States in the field of family life was rather wide and that, by adopting a reasoned decision in the best interests of the children, the domestic authorities had not exceeded their remit. (b) The applicants 66. The aunt submitted that her nephews’ rights, as guaranteed under Article 8 of the Convention, had been violated because the domestic courts had failed to thoroughly assess their situation and to take their best interests into consideration. She claimed that several important factors had been overlooked by the domestic authorities in their examination of the case. First and foremost, the courts had disregarded the boys’ negative attitude towards their father. In this connection the aunt emphasised particularly ‒ with reference to the Court’s decision in the case of Hokkanen v. Finland (23 September 1994, §§ 61-62, Series A no. 299‑A) ‒ that the older boy, who was nine at the material time, was categorically opposed to the idea moving to his father’s home. Hence, rather than assessing the living conditions, the domestic authorities should have focused on the boys’ emotional state of mind and possible solutions. In the aunt’s view, even assuming that the children’s negative attitude towards their father was in part preconditioned by the influence of the maternal family, it was anyway contrary to their best interests to order their immediate return without any rehabilitation plan and preparatory period in mind. 67. The aunt further argued that the father lacked interest in his children. Despite the adoption of the two interim orders, he had never really attempted to see them. And most importantly, although more than three years had passed since the two unsuccessful attempts to enforce the final court ruling concerning the return of the children to G.B., the latter had made no effort to establish contact with the boys. Nor had he ever complained before the courts about the non-enforcement of the final binding decision or approached the SSA seeking their help. 68. In connection with Article 81 of the Civil Code of Procedure, the applicants referred to a well-established principle under the CRC according to which a child who is capable of forming his/her own views should be personally involved in proceedings concerning his or her rights. They disagreed with the interpretation of the above provision proposed by the Government, and claimed that the phrase “at the same time” implied that, as well as having a legal representative appointed, a minor between seven and eighteen years of age should have been directly involved in the proceedings. 69. Lastly, the applicants contended that a superficial assessment of the situation concerning the boys, in combination with the disregard for their own opinions, had led the domestic courts to adopt a decision that was contrary to their best interests. 2. The Court’s assessment (a) General principles 70. The Court reiterates that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life within the meaning of Article 8 of the Convention (see, among other authorities, Olsson v. Sweden (no. 1), 24 March 1988, § 59, Series A no. 130, and Monory v. Romania and Hungary, no. 71099/01, § 70, 5 April 2005). In this context, the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities. There are in addition positive obligations inherent in an effective “respect” for family life. Hence, the Court has repeatedly held that Article 8 includes the right for parents to have measures taken that will permit them to be reunited with their children and an obligation on part of the national authorities to take such action (see, amongst many others, Eriksson v. Sweden, judgment of 22 June 1989, Series A no. 156, pp. 26-27, § 71; Margareta and Roger Andersson v. Sweden, judgment of 25 February 1992, Series A no. 226-A, p. 30, § 91; Olsson v. Sweden (no. 2), judgment of 27 November 1992, Series A no. 250, pp. 35-36, § 90; Nuutinen v. Finland, judgment of 27 June 2000, Reports of Judgments and Decisions 2000-VIII, p. 83, § 127; Ignaccolo-Zenide v. Romania, no. 31679/96, § 94, ECHR 2000‑I; and Sylvester v. Austria, nos. 36812/97 and 40104/98, § 58, 24 April 2003). This also applies to cases where contact and residence disputes concerning children arise between parents and/or other members of the children’s family (see Fuşcă v. Romania, no. 34630/07, § 34, 13 July 2010; Hromadka and Hromadkova v. Russia, no. 22909/10, § 150, 11 December 2014; and Manic v. Lithuania, no. 46600/11, § 101, 13 January 2015). 71. The obligation of national authorities to take measures to facilitate reunion is not, however, absolute (see Hokkanen, cited above, § 58; Vamosi v. Hungary (dec.), no. 71657/01, 23 March 2004). The reunion of a parent with a child who has lived for some time with other persons may not be able to take place immediately and may require preparatory measures being taken to this effect. The nature and extent of such preparation will depend on the circumstances of each case, but the understanding and co-operation of all concerned will always be an important ingredient. Whilst national authorities must do their utmost to facilitate such co-operation, any obligation to apply coercion in this area must be limited, since the interests as well as the rights and freedoms of all concerned must be taken into account, and more particularly the best interests of the child and his or her rights under Article 8 of the Convention. Where contact with the parent might appear to threaten those interests or interfere with those rights, it is for the national authorities to strike a fair balance between them (see Hokkanen, cited above, § 58). The child’s best interests must be the primary consideration and may, depending on their nature and seriousness, override those of the parents (see among many others, Olsson (No. 2), § 90, Ignaccolo-Zenide, § 94, both cited above; Płaza v. Poland, no. 18830/07, § 71, 25 January 2011; and Manic, cited above, § 102, with further references thereto). 72. The Court further notes that, whilst Article 8 contains no explicit procedural requirements, the applicant must be involved in the decision-making process, seen as a whole, to a degree sufficient to provide him or her with the requisite protection of his interests, as safeguarded by that Article (see Fernández Martínez v. Spain [GC], no. 56030/07, § 147, ECHR 2014 (extracts); Z.J. v. Lithuania, no. 60092/12, § 100, 29 April 2014; Elsholz v. Germany [GC], no. 25735/94, § 52, ECHR 2000‑VIII; and W. v. the United Kingdom, 8 July 1987, §64, Series A no. 121). In the case of children, the above principle is exercised through their right to be consulted and heard (see M. and M. v. Croatia, no. 10161/13, §§ 180-181, 3 September 2015). The Court has already held that as children mature and, with the passage of time, become able to formulate their own opinions on their contact with their parents, for instance, the courts should give due weight to their views and feelings as well as to their right to respect for their private life (see Plaza, cited above, § 71). The same principles are enshrined in Article 12 of the CRC and in other relevant international instruments (see paragraphs 40-44 above). (b) Application of these principles to the present case 73. The Court observes that the essence of this case lies in the applicants’ complaint that the procedures followed by the domestic authorities in the current case were not in compliance with the requirements of Article 8 of the Convention and disregarded the best interests of the children. There are therefore two fundamental aspects to examine – whether the boys were duly involved in the proceedings, and whether the decisions taken by the domestic courts were dictated by their best interests. i. The right to be represented and to be heard 74. The Government claimed that the children had been both involved and heard in the domestic proceedings via the representative assigned to them by the SSA (see paragraph 62 above). The Court notes that on 12 January 2010 the Tbilisi City Court did indeed request the appointment under Article 1200 of the Civil Code of Georgia of a representative for the boys. However, it has certain reservations as to the specific role this representative played in the course of the domestic proceedings. Thus, it appears from the case file that the SSA became formally involved in the proceedings only from the appeal stage onwards (see paragraph 19 above), skipping ‒ for unknown reasons ‒ the full examination of the case at first instance. After its involvement in the appeal proceedings, the SSA and its relevant regional branch enjoyed the status of an “interested party” (see paragraph 23 above). The Code of Civil Procedure, however, does not make any provision for the status of an “interested party” and/or its ensuing procedural rights. Hence, it remains unclear how the SSA could have effectively represented the children’s interests while lacking a formal procedural role in the case. This leads the Court to its second area of concern. 75. The SSA and its relevant regional branch were designated to represent the children’s interests under Article 1200 § 2 of the Civil Code. But it remains ambiguous what this type of representation exactly implies. Neither the Civil Code of Procedure nor the SSA-related legislation spells out the functions and powers of the representative appointed under the above scheme. In practice, throughout a period of rather more that the two years that the proceedings lasted, the various representatives of the SSA met the boys only a few times, with the sole purpose of drafting several reports on the boys’ living conditions and their emotional state of mind. No regular or frequent contact was maintained in order to monitor the boys and to establish trustworthy relationship with them. 76. In this context, reference should be made to the European Convention on the Exercise of Children’s Rights, which has not been ratified by Georgia, but is a useful tool for the interpretation of relevant principles. Article 10 of the above-mentioned Convention provides that the duty of a representative is to act in an appropriate manner on behalf of the child, by providing information and explanations to the child, determining the views of the child and presenting them to the judicial authority (see paragraph 44 above). Likewise, the Guidelines of the Committee of Ministers of the Council of Europe on Child-Friendly Justice seek to ensure that in cases where there are conflicting interests between parents and children, either a guardian ad litem or another independent representative is appointed to represent the views and interests of the child and keep the child informed about the content of the proceedings (see paragraph 43 above). 77. The Court does not see how the SSA’s drafting of several reports and attending court hearings without the requisite status could be classified as constituting adequate and meaningful representation, as outlined inter alia in the above-mentioned international standards. 78. It is now necessary to examine whether the children were otherwise heard by the judicial authorities. In this connection the Court points out, having regard to Article 12 of the CRC (see paragraph 40-42 above, and in particular point 32 of General Comment no. 12 of the Committee on the Rights of the Child), that in any judicial or administrative proceedings affecting children’s rights under Article 8 of the Convention, children capable of forming their own views should be sufficiently involved in the decision-making process and be given the opportunity to be heard and thus to express their views (see also M. and M., cited above, § 181). The same principle is enshrined in the Guidelines of the Committee of Ministers of the Council of Europe on Child-Friendly Justice, which provide for the right of children to be heard and to express their views in all matters that affect them (see paragraph 43 above). 79. In the current case, none of the three boys was heard in person by either of the judicial instances. The applicants claimed on the basis of Article 81 of the CCP that, at least as far as the older boy was concerned, his right to be heard by judges had been violated. The Government for its part maintained that Article 81 of the CCP did not intend to imply the obligatory direct involvement of children over the age of seven in proceedings affecting them (see paragraph 64 above). 80. While a literal reading of the relevant provision (see paragraph 37 above) might suggest that it does in fact provide for a right of minors between seven and eighteen years of age to be directly involved in proceedings affecting their rights, neither of the parties submitted any relevant domestic case-law examples. In any event, taking into account the relevant international standards, the Court does not understand why the domestic courts failed both to give any consideration to the possibility of directly involving the older boy in the proceedings and to give reasons for not hearing him (see M. and M., cited above, §§ 184-185). The potential need for his direct involvement was particularly apparent given the flaws in the quality of the boys’ representation, as noted above. ii. The assessment of the best interests 81. Turning now to the second aspect of the proceedings, namely whether the domestic courts took adequate account of the best interests of the children, the two main reasons behind the decision of the domestic courts to return the boys to their father were the following: first, it was within their best interests to be reunited with their father, and second, the maternal family was having a negative influence on the boys. The Court accepts the above motivation of the domestic courts. Indeed, the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life and it is within the best interests of the children to be allowed to develop in a sound and harmonious environment. However, while making its own assessment of the best interests, the domestic courts failed to give adequate consideration to one important fact: the boys did not want to be reunited with their father. 82. On this point the Court refers to several reports which concluded that the negative attitude of the maternal family towards G.B. was a factor in shaping the boys’ relationship with their father. But, whatever the manipulative role played by the maternal family, the evidence before the domestic courts concerning the hostile attitude of the children towards their father was unambiguous. The latest conclusion of the social workers dated 4 January 2012, noted the particularly severe alienation of the children from their father (see paragraphs 27-28 above). 83. Further, the Court attaches particular weight to the reports of various psychologists who throughout the proceedings referred to the potential danger to the boys’ psychological health in the event of their forced return to G.B. (see paragraphs 14-15, and 29 above). In such circumstances, ordering such a radical measure without considering a proper transition and preparatory measures aimed at assisting the boys and their estranged father in rebuilding their relationship appears to be contrary to their best interests (see, Z.J., cited above, §§ 99 and 103; compare also with Plaza, § 86, Hokkanen, § 61, and M. and M., § 186, all cited above). iii. Conclusion 84. In the view of the Court, the combination of flawed representation, and as a consequence the failure to duly present and hear the views of the boys, undermined the procedural fairness of the decision-making process in the instant case. This was exacerbated by inadequate and one-sided consideration of the boys’ best interests, in which their emotional state of mind was simply ignored. This leads the Court to conclude that there was a violation of the boys’ right to respect for their family and private life, as guaranteed by Article 8 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 85. 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 86. The applicants claimed 5,000 euros (EUR) each in respect of non‑pecuniary damage on account of the anxiety and uncertainty they had had to, and continued to, endure. 87. The Government submitted that the amount claimed in the name of the three boys was unreasonable. 88. The Court considers that the boys must have suffered distress and anxiety resulting at least partly from the domestic authorities’ handling of their case. It hence awards them EUR 10,000 jointly in respect of non-pecuniary damage. The sum is to be paid to Ms N.Ts., to be held by her for the children. B. Costs and expenses 89. The applicants also claimed EUR 1,200 for the costs and expenses incurred before the domestic courts. 90. The Government did not comment. 91. 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 considers it reasonable to award the sum of EUR 900 for costs and expenses in the domestic proceedings. C. Default interest 92. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 8 of the Convention in respect of N.B, S.B, and L.B.; 3. Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, 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), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be held by Ms N.Ts.; (ii) EUR 900 (nine hundred euros), plus any tax that may be chargeable to the applicants, 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 ; 4. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 2 February 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıAndrás SajóDeputy RegistrarPresident

FIRST SECTION CASE OF FEDERICI v. ITALY (Application no. 63523/00) JUDGMENT STRASBOURG 9 October 2003 FINAL 09/01/2004 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 Federici v. Italy, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrP. Lorenzen,MrsF. Tulkens,MrsN. Vajić,MrE. Levits,MrV. Zagrebelsky,MrsE. Steiner, judges, and Mr S. Nielsen, Deputy Section Registrar, Having deliberated in private on 18 September 2003, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 63523/00) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Italian nationals, Mrs Clara Federici and Mrs Livia Federici (“the applicants”), on 14 November 2000. 2. The applicants are represented by MM. M. and C. Segnalini, two lawyers practising in Rome. The Italian Government (“the Government”) were represented by their Agent, Mr U. Leanza and by their successive co-agents, respectively Mr V. Esposito and Mr F. Crisafulli. 3. On 9 July 2002 the Court declared the application admissible. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicants were respectively born in 1927 and 1929 and live in Rome. 5. They are the owners of a flat in Rome, which they had let to L.S. 6. In a registered letter of 19 February 1990, the applicants informed the tenant that they intended to terminate the lease on expiry of the term on 31 December 1991 and asked him to vacate the premises by that date. 7. In a writ served on the tenant on 28 December 1990, the applicants reiterated their intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate. 8. By a decision of 9 May 1991, which was made enforceable on the same day, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1992. 9. On 12 February 1993, the applicants served notice on the tenant requiring him to vacate the premises. 10. On 16 April 1993, they served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 6 May 1993. 11. Between 6 May 1993 and 7 December 1999, the bailiff made twelve attempts to recover possession. Each attempt proved unsuccessful, as the applicants were not entitled to police assistance in enforcing the order for possession. 12. On 6 June 2000, the applicants recovered possession of the flat. II. RELEVANT DOMESTIC LAW 13. Since 1947 the public authorities in Italy have frequently intervened in residential tenancy legislation with the aim of controlling rents. This has been achieved by rent freezes (occasionally relaxed when the Government decreed statutory increases), by the statutory extension of all current leases and by the postponement, suspension or staggering of the enforcement of orders for possession. The relevant domestic law concerning the extension of tenancies, the suspension of enforcement and the staggering of evictions is described in the Court's judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V. A. The system of control of the rents 14. As regards the control of the rents, the evolution of the Italian legislation may be summarised as follows. 15. The first relevant measure was the Law no. 392 of 27 July 1978 which provided machinery for “fair rents” (the so-called equo canone) on the basis of a number of criteria such as the surface of the flat and its costs of realisation. 16. The second step of the Italian authorities dated August 1992. It was taken in the view of progressive liberalisation of the market of tenancies. Accordingly, a legislation relaxing on rent levels restrictions (the so-called patti in deroga) entered into force. Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price. 17. Lastly, Law no. 431 of 9 December 1998 reformed the tenancies and liberalised the rents. B. Obligations of the tenant in the case of late restitution 18. The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat. In this regard, Article 1591 of the Italian Civil Code provides: “The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until the date when he leaves, together with other remaining damages”. 19. However, Law no. 61 of 1989 set out, inter alia, a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease, proportionally increased according to the cost of living (Article 24 of Law n. 392 of 27 July 1978) plus 20%, along the period of inability to dispose of the possession of the flat. 20. In the judgment no. 482 of 2000, the Constitutional Court was called upon to decide whether such a limitation complied with the Constitution. The Constitutional Court held that it was compatible with the Constitution with regard to periods of time during which the suspension of the evictions was determined by law. The Constitutional Court explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation, when the housing shortage made the suspension of the enforcement necessary. While evictions were suspended ex lege, the law predetermined the quantum of the reimbursement chargeable to the tenant, both measures being temporary and exceptional. Besides, the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages. 21. The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention. Accordingly, it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant. THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 AND OF ARTICLE 6 § 1 OF THE CONVENTION 22. The applicants complained of their prolonged inability to recover possession of their flat, owing to the lack of police assistance. They alleged a violation of their right of property, as guaranteed by Article 1 of Protocol No. 1 to the Convention, which provides: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 23. The applicants also alleged a breach of Article 6 § 1 of the Convention, the relevant part of which provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 24. The Court has previously examined a number of cases raising issues similar to those in the present case and found a violation of Article 1 of Protocol No. 1 and Article 6 § 1 of the Convention (see Immobiliare Saffi, cited above, §§ 46-75; Lunari v. Italy, no. 21463/93, 11 January 2001, §§ 34-46; Palumbo v. Italy, no. 15919/89, 30 November 2000, §§ 33-48). 25. The Court has examined the present case and finds that there are no facts or arguments from the Government which would lead to any different conclusion in this instance. It notes that the applicants had to wait seven years and one month after the first attempt of the bailiff before being able to repossess the flat. Consequently, there has been a violation of Article 1 of Protocol No. 1 and of Article 6 § 1 of the Convention in the present case. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 26. 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. Pecuniary damage 27. The applicants sought reparation for the pecuniary damage they had sustained, which they calculated as follows: 80,535 euros (EUR), the sum being the loss of rent for a period of eight years and a half. The applicants proposed the requested amount as the result of the difference between the market value rent and the rent imposed by law. For the purpose of assessing the market value rent, the applicants submitted an expert opinion which calculates the market value rent for the year 1993 of three similar other flats located in the same building of the flat of the applicants. The applicants also left the matter to be assessed by the Court in an equitable manner. 28. The Government contested the claim. 29. The Court considers that the applicants must be awarded compensation for the pecuniary damage resulting from the loss of rent for the period of time related to the violations found. Having regard to the means of calculation proposed by the applicants and in the light of the evidence before it (cf. paragraph 27) and the period concerned, it decides to award them EUR 29,200 (EUR 14,600 for each applicant) under this head. B. Non-pecuniary damage 30. The applicants claimed reimbursement for the non-pecuniary damage. They left the matter to the Court's discretion. 31. The Government contested the claim. 32. The Court considers that the applicants must have sustained some non-pecuniary damage. Ruling on an equitable basis, it awards EUR 3,000 to each applicant under this head. C. Costs and expenses 33. The applicants claimed EUR 3,000 for the costs of the enforcement proceedings and left the reimbursement of the costs and expenses before the Court to the Court's discretion. 34. The Government contested the claims. 35. On the basis of the information in its possession and the Court's case-law, the Court considers it reasonable to award the applicants the sum of EUR 1,000 for the costs of the enforcement proceedings and EUR 2,000 for the costs and expenses before the Court. 36. The Court awards a total sum of EUR 3,000 (EUR 1,500 for each applicant) for legal costs and expenses. D. Default interest 37. 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 1. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay each of the applicants, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts: (i) EUR 14,600 (fourteen thousand six hundred euros) for pecuniary damage; (ii) EUR 3,000 (three thousand euros) for non-pecuniary damage; (iii) EUR 1,500 (one thousand five hundred euros) for legal costs and expenses; (iv) any tax that may be chargeable on the above amounts; (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; 4. Dismisses the remainder of the applicants' claim for just satisfaction. Done in English, and notified in writing on 9 October 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos Rozakis Deputy RegistrarPresident

Translation © European Roma Rights Centre. www.errc.org - Permission to re-publish this translation has been granted for the sole purpose of its inclusion in the Court’s database HUDOC. FIRST SECTION CASE OF SAMPANIS AND OTHERS v. GREECE (Application no. 32526/05) JUDGMENT STRASBOURG 5 JUNE 2008 FINAL 05/09/2008 This judgment may be subject to editorial revision. In the case of Sampanis and others v. Greece, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Nina Vajić, president,Christos Rozakis,Khanlar Hajiyev,Dean Spielmann,Sverre Erik Jebens,Giorgio Malinverni,George Nicolaou, judges, and Søren Nielsen, section registrar, Having deliberated in private on 15 May 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 32526/05) against the Hellenic Republic by eleven Greek nationals, whose names are listed in the annex (“the applicants”), who referred to the Court on 11 August 2005 in accordance with Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). 2. The applicants are represented by the Greek Helsinki Monitor, a member of the International Helsinki Foundation. The Greek Government (“the Government”) is represented by the delegates of its agent, Mr. K. Georgiadis, Adviser at the State Legal Council, and Mr. I. Bakopoulos, Legal Assistant at the State Legal Council. 3. In their applicant, the applicants alleged in particular the violation of Article 2 of Protocol No. 1 and of Article 14 of the Convention, as well as the absence of an effective remedy in domestic law. 4. On 20 February 2007, the Court decided to communicate the application to the Government. Making use of the option provided for in Article 29 § 3 of the Convention, it decided that the admissibility and merits would be examined at the same time. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicants are of Romani origin and live with their families on the area of Psari, near Aspropyrgos, a municipality in the western part of the Attica region. A. The steps taken by the applicants to register their children for the 2004-2005 school year 6. On 24 June 2004, the Minister Delegate of Health, accompanied by the Secretary General of his ministry, visited the Roma camp in Psari. He had been informed, among other things, of the non-education of Romani children. On 2 August, the representatives of “European Roma Rights Centre” and of “Greek Helsinki Monitor” met with the Minister Delegate for National Education and Religious Affairs. Following this meeting, the Minister Delegate published a press release highlighting, among other things, the importance of integrating Romani children into the national education process. 7. The 2004-2005 school year began on 10 September 2004. On 17 September 2004, the Secretary of the Department of Education of Expatriate Greeks and Intercultural Education visited the Roma camps in Psari, in the company of two representatives of the Greek Helsinki Monitor, to register all the Romani children of schooling age. To this end, they visited the two primary schools of the municipality (the 10th and 22th primary schools of Aspropyrgos). The respective school directors encouraged Romani parents to enrol their children in primary school. The Greek Helsinki Monitor subsequently informed the competent authorities of the Ministry of Education and Religious Affairs, who gave no follow-up. 8. The applicants confirm that on 21 September 2004, they visited the premises of the Aspropyrgos primary schools, with other Romani parents, to register their children. The directors of two schools had refused to enrol their children on the grounds that they had not received instructions to this effect from the relevant ministry. They had informed the parents concerned that upon receipt of the necessary instructions, they would invite them to complete the necessary formalities. Never afterwards were the parents invited to register their children. 9. According to the document no. Φ20.3/747 delivered on 5 June 2007 by the First Bureau of Primary Education in West Attica, at the request of the State Legal Council, the applicants presented themselves to the director of the 10th primary school of Aspropyrgos to gather information on registering their children. The director reportedly showed them the documents necessary to register their children. According to the same documents, on 23 September 2004, the Departmental Director of Education of the Attica region convened an informal meeting with the competent authorities of the municipality of Aspropyrgos to address the problem of additional enrolment of students of Romani origin and the capacity of Aspropyrgos’ primary schools. On one hand, it was decided that the students who had reached the age of first schooling would be accommodated into the existing premises of the 10th and 11th primary schools in Aspropyrgos. On the other hand, the meeting considered that integration of children who had reached an age higher than that of preliminary education into normal classes would be detrimental from a psychopedagogical point of view: the difference of age would not permit them to have an effective schooling. On this basis, the informal meeting decided to provide two additional preparatory classes in preparation for the integration of these students into ordinary classes. 10. On 13 and 18 September and on 2 October 2004, the Greek Helsinki Monitor referred to the Ombudsman of the Republic on behalf of the applicants of three applications concerning the difficulties of Romani children’s access to primary education for Romani children, inviting him to intervene. On 3 January 2005, the Ombudsman replied in writing that three representatives of his cabinet had, on an unspecified date, visited the Roma camp in Psari. In his response, the Ombudsman noted that there was not, on the part of the competent services, any systematic and unjustified refusal to enrol children of Romani origin in primary education. He noted that he had already informed teachers at Aspropyrgos’ primary schools that domestic legislation provided for the possibility to enrol children in primary school with the simple declaration of those bearing parental authority, provided that they submit birth certificates in due course. The Ombudsman also referred to the conclusions of several meetings with the leaders of the municipality of Aspropyrgos and, more specifically, to their intention to build a separate building from the school closest to the Roma camp to accommodate the older Romani children in view of bringing them up to standard. The Ombudsman mentioned lastly the tensions that existed between the population of Aspropyrgos, composed mainly of those repatriated from states of the former Soviet Union, and the Romani minority, as an additional element preventing the integration of Romani children into the educational environment. 11. On the 1 October 2004, the Minister Delegate for National Education and Religious Affairs asked the company responsible for operating state real estate to grant some public land with two prefabricated cells to serve as classrooms for Romani children. On an unspecified date, the Minister rejected the request. 12. According to the Government, in November and December 2004 a delegation from teachers of primary schools no. 10 and 11 visited the Roma Camp in Psari in order to inform and convince the parents and their children, who were minors, of the necessity to enrol their children in preparatory classes. This approach would be in vain, the parents concerned not having registered their children for the current school year. 13. On 13 February 2005, the Association for the Coordination of Organisations and Communities for the Human Rights of Roma in Greece (SOKARDE) addressed an official letter to the Board of Directors of Primary Education of West Attica in which it requested information about the schooling of the Roma in Aspropyrgos. 14. On 17 February 2005, the Board of Directors replied that the case had experienced delays attributable to the Ministry of the Environment: it had been slow to resolve the issue of granting public land on which to construct rooms and prefabricated classrooms. The Board of Directors expressed its intention to make every effort to implement the enrolling of Romani children in primary school the following year. B. The registration of Romani children for the 2005-2006 school year 15. On 24 May 2005, SOKARDE sent a letter to the Minister Delegate of National Education and Religious Affairs stressing the need to take all of the necessary measures to assure the successful schooling of Romani children for the 2005-2006 school year. 16. A letter dated 1 July 2005 to SOKARDE states that the school authorities took various steps to inform Aspropyrgos’ Romani families of the necessity of enrolling their children in primary school: radio messages, advertisements on the school walls informing Roma that they could register their children between 1 and 21 June 2005 and sending letters to interested parties on this subject. 17. On 9 June 2005, at the initiative of SOKARDE, twenty-three children of Romani origin, including the children of the applicants, were enrolled in the Aspropyrgos primary school for the 2005-2006 school year. According to the Government, the number of Romani children who were enrolled was fifty-four. C. Incidents against Romani children in September and October 2005 18. On 12 September 2005, the first day of the school year, the Romani parents, including the parents, accompanied their children to school. In front of the entrance, several non-Romani parents, most of them of Pontic origin, that is to say from the region of Pont-Euxin, on the southern shores of the Black Sea, were gathered, harassing people of Romani origin. They shouted, “There is not a single Roma child who will go to school. You will not have access here, that’s all.” Then, non-Romani parents blocked access to the school until Romani children were transferred to another building. 19. On 12 October 2005, the non-Romani parents blocked access to the school again. They hung a sign: “The school will remain closed because of the Gypsy problem; Wednesday 12.10.05”. 20. On 13 October, Romani children tried to access the school. They were once more confronted by a group of non-Romani parents. In particular, the president of the association showed, on camera of a television channel that had visited the scene, the medical files of children of Romani origin in order to prove that they had been inadequately vaccinated. Finally, with the assistance of the police, who had gone there, the Romani children were able to access the school. 21. As part of the judicial investigation of this incident, the police officer D.T. made a statement with the following passage: “On 13 September 2005, around 9.10, around two hundred parents of students of Greek Pontic origin protested outside schools against the schooling of children of Romani origin at the primary school (...). A confrontation was avoided thanks to the prompt intervention of the police of Aspropyrgos (...). On 15 and 16 September 2005, the association of parents organised a boycott of student participation in class. From the first day of the incidents, police were posted outside the school to secure the entry and exit of Romani students. On 10 October 2005, the association of parents blocked access to the school as a protest against the afternoon welcoming of Romani students in the same rooms which welcomed the other students in the morning. On 11 and 12 October, in the presence of police, students of Romani origin had access to classes without difficulty. On 13 October 2005, fifty to sixty non-Romani parents gathered to protest against the presence of Romani students and to encircle the school’s entrance in order to prevent access (...)”. 22. By a letter, dated 1 March 2006, the West Attica Police Board informed the Greek Helsinki Monitor that on 13, 14, 15, 16 and 19 September 2005 and on 10, 11, 12, 13, 17, 19, 21, 25, 26, 27, and 31 October 2005, police forces had been sent to the 10th and 11th primary schools in order to maintain order and to prevent illegal acts committed against Romani students. 23. As of 31 October 2005, the applicants’ children were educated in a separate building from the main primary school of Aspropyrgos and the non-Romani parents stopped blocking the school. D. The schooling of the applicants’ children 24. Under Act No. 39/20.9.2005 of the Peripheral Council for Primary Education, three preparatory classes were created to meet the educational needs of Romani children; the classes of one took place in the morning while the other two took place after 15.30. The Peripheral Council indicated that the Romani students of all ages who were confronted with problems pertaining to their learning capacity could take special preparatory classes, the aim being to allow their integration without hindrance into ordinary classes. 25. On 25 October 2005, the applicants signed a statement written by the teachers of Aspropyrgos School expressing their wish to have their children transferred to the building separate from the primary school. The applicants allege that they had signed the statement in question under pressure from the Minister of Education, non-Romani parents, and certain leaders of the Roma community. 26. On 31 May 2007, the first applicant swore in the Elefsina District Court that he would have preferred for his students to attend regular classes rather than special school. He clarified, however, that it was difficult for him to maintain this position when the integrity of his children was endangered by furious non-Romani residents and that the teachers indirectly encouraged him to consent to his children’s schooling in the “ghetto school”. 27. In the meantime, under Act No. 261/22.12.2005, the Prefect of Attica had decided that three classes of primary school No. 10 in Aspropyrgos would be accommodated in prefabricated rooms installed on land owned by the municipality of Aspropyrgos. 28. On 17 March 2006, the West Attica Primary Education Directorate sent a letter to the Ministry of National Education and Religious Affairs. She informed the Ministry that for the 2005-2006 school year, fifty-two new students of Romani origin had been enrolled in the 10th primary school of Aspropyrgos. She noted that “due to the lack of space in the main school building of the school, and with the parents’ agreement, pupils of Romani origin had been accommodated in an annex located near the Roma camp”. 29. On 20 June 2006, the third constituency of the West Attica Primary Education Council sent a letter to the director of the outskirts of Attica. She informed him that for the 2005-2006 school year, fifty-four students of Roma origin had been enrolled in the 10th primary school of Aspropyrgos. She stated that “preparatory classes [were] provided for the Romani students, in order to assure their adaptation to the schooling environment, given the deficiencies from which they suffered and various other reasons making it impossible for them to integrate into ordinary classes.” She added that “despite the progress made by Romani students in the preparatory classes, all of these students are not yet fit to integrate into ordinary classes.” 30. On 5 April 2007, prefabricated rooms of the 10th primary school were set on fire by unknown people. It appears from the file that in September 2007, the two rooms were replaced but because of infrastructure problems, they were not operational. In September 2007, a 12th primary school was created in Aspropyrgos, to which Romani children were transferred. The record shows that in October 2007, this school was not yet operational, because of the infrastructure problems. The Government alleges that the establishment of the 12th primary school in Aspropyrgos was intended only to relieve congestion at the 10th primary school. II. THE LAW AND THE RELEVANT DOMESTIC AND INTERNATIONAL PRACTICE A. The law and domestic practice 1. Domestic law 31. According to Article 7 § 1 of Presidential Decree No. 201/1998, “All pupils who have attained the legal age of schooling must be registered in the first class of primary school. Registrations take place from 1 June to 15 June of the preceding school year.” 32. Directive Φ4/350/Γ1/1028/22.8.1995 of the Ministry of National Education and Religious Affairs underlines the need “for cooperation between Romani families, heads, and school councils so that Romani children living in camps are registered in nursery and primary schools (...). The heads [of schools] must not only encourage Romani children to enrol in primary schools, but also, identify Romani children in their district and ensure their registration and attendance at classes (...)”. In addition, Directive Φ4/127/Γ1/694/1.9.1999 of the Minister of National Education and Religious Affairs and Article 7 § 8 of Presidential Decree No. 201/1998 require the competent authorities to facilitate the access of Romani children to public education. 33. The relevant articles of Legislative Decree No. 18/1989 on the “Codification of the provisions of the laws on the Council of the State” provide: Article 45 “Offending acts” “1. An action for annulment for abuse for excess of power or violation of the law is admissible only against legally binding acts of the administrative authorities and the legal entities of public law who are not susceptible to appeal before any other jurisdiction. (...) 4. In cases where the law requires an authority to settle a particular question by enacting an enforceable act subject to the provisions of paragraph 1, the action for annulment is admissible even against the failure of that authority to enact such an act. The authority is presumed to refuse to enact the act either when the special period of time fixed by the law expires, or after the expiry of a period of three months from the filing of the request of the administration, who is expected to issue an acknowledgment of receipt (...) indicating the day of the said deposit. The action for annulment exercised before the expiry of the aforementioned periods is inadmissible. An action for annulment validly lodged against an implied refusal [of the administration] is also an action against the negative act that may be subsequently adopted by the administration; however, this act may also be attacked separately.” Article 52 “( ...) 2. A committee established for the needs of the cause by the president of the Council of State or the competent section of the Council of State and composed of said president or his deputy, the reporter of the case and a councillor of State may, at the request of the author of the solution of annulment, suspend the execution of the contested act by a decision briefly reasoned and adopted in the Council Chamber (...).” 2. The Hellenic League of Human Rights (LHDH) and the Centre for Research on Minority Groups (KEMO) 34. The LHDH, established in 1953, is the oldest non-governmental organisation in Greece. It is a member of the International Federation of Human Rights. KEMO is a non-profit organisation established in 1996. The purpose of its activity is scientific research on minority groups and languages in Greece. 35. LHDH and KEMO’s 2007 annual report on the state of racism and xenophobia in Greece observes a clear improvement in schooling conditions for people belonging to the Muslim and Roma minorities compared to those of the nineties. However, the report notes that the registration of Romani children in school continues to be a source of tension, intolerance, and violent reactions. This sometimes requires the placement of Romani children in schools specially created for the Roma, despite the strong commitment of the administration to avoid the segregation of minorities in the school environment. The report notes that the most serious incidents of intolerance concern the registration of Romani children in primary education. 3. The Institute of Education for People of Greek Origin and Intercultural Education 36. By a letter dated 2 February 2004, the Institute of Education for People of Greek Origin and Intercultural Education had informed the representative of the Greek Helsinki Monitor that eighteen schools attended only by “Gypsy children” had been operation in Greece during the 2002-2003 school year. B. The sources of the Council of Europe 1. The Committee of Ministers The Recommendation no. R (2000) 4 of the Committee of Ministers to member-states on the education of Roma children in Europe (adopted by the Committee of Ministers on 3 February 2000 at the 696th meeting of the Ministers’ Deputies) 37. The terms of this recommendation are as follows: « The Committee of Ministers, in accordance with Article 15.b of the Statute of the Council of Europe, Considering that the aim of the Council of Europe is to achieve a closer union among its members, and that this aim may be pursued in particular by adopting joint action in the field of education; Recognising the urgent need to lay new foundations for future educational strategies for Roma / Gypsies in Europe, in particular because of the high rate of illiteracy or semi-illiteracy in this community, the extent of school failure, the low proportion of young people completing primary school and the persistence of factors such as school absenteeism; Noting that the problems faced by Roma / Gypsies in the field of education are largely due to the long-standing educational policies that have led either to the assimilation or segregation of Romani / Gypsy children in school on the grounds that they suffered from a "socio-cultural handicap"; Considering that the disadvantaged position of Romani / Gypsies in European societies can only be remedied if equality of opportunity in the field of education is guaranteed to Romani / Gypsy children; Considering that the education of Romani / Gypsy children should be a priority of national policies for Roma / Gypsies; Bearing in mind that policies to address the problems faced by Roma / Gypsies in the field of education must be comprehensive and based on the recognition that the issue of schooling of Romani / Gypsy children is linked to a set of factors and preconditions, including economic, social and cultural aspects and the fight against racism and discrimination; Bearing in mind that educational policies for Romani / Gypsy children should be accompanied by an active policy on adult and vocational education; (...) Recommends the governments of member states: to respect, in the implementation of their education policy, the principles set out in the appendix to this Recommendation; to bring this Recommendation to the attention of the competent public authorities in their respective countries, through the appropriate national channels. " 38. The relevant parts of the Annex to Recommendation No. R (2000) 4 read as follows: “Guiding Principles for an Education Policy for Romani/Gypsy Children in Europe” I. Structures 1. Educational policies for Romani/Gypsy children should be accompanied by the necessary means and flexible structures to reflect the diversity of the Roma/Gypsy population in Europe and to take into account Roma/Gypsy groups’ itinerant or semi-itinerant way of life. In this respect, the use of a system of education at a distance, based on new communication technologies, could be considered. 2. Emphasis should be placed on better coordination at international, national, regional and local levels in order to avoid dispersion of efforts and to promote synergies. 3. Member states should, in this regard, make the Ministries of Education sensitive to the question of Romani/Gypsy children’s education. 4. Pre-school education should be widely developed and made accessible to Romani/Gypsy children, in order to ensure their access to schooling and education. 5. Special attention should also be paid to better communication with and between parents by using, when appropriate, mediators from the Roma/Gypsy community who would have the opportunity to access a specific professional career. Special information and advice would be provided to parents on the necessity for education and the support mechanisms that municipalities can offer to families. The exclusion and lack of knowledge and education (or even illiteracy) of parents also prevent children from benefiting from the education system. 6. Adequate support structures should be put in place to enable Romani/Gypsy children to benefit from equal opportunities in school, including through positive action. 7. Member states are invited to provide the necessary means to implement the aforementioned policies and measures in order to bridge the gap between Romani/Gypsy schoolchildren and those belonging to the majority population. II. School programmes and teaching materials 8. Educational measures for Romani/Gypsy children should be part of a wider intercultural policies and take into account the characteristics of Romanini culture and the disadvantaged position of many Roma/Gypsies in the Member States. 9. School curricula, as a whole, and teaching materials should be designed in a manner to respect the cultural identity of Romani/Gypsy children. The history and culture of the Roma should therefore be introduced in the educational materials in order to reflect the cultural identity of Romani/Gypsy children. The participation of representatives from Roma/Gypsy communities in the development of material on Roma/Gypsy history, culture, and language should be encouraged. 10. Member states should, however, ensure that these practices not lead to separate school curricula that can lead to creating separate classes. 11. Member states should equally encourage the development of educational materials based on examples of successful action in order to assist teachers in their daily work with Romani/Gypsy children. 12. In countries where the Romani language is spoken, Romani/Gypsy children should be offered the opportunity to take classes in their mother tongue. III. Recruitment and teacher training 13. Provision should be made for the introduction of specific education in programs preparing future teachers so that they can acquire the knowledge and training to better understand Romani/Gypsy schoolchildren. However, the education of Romani/Gypsy schoolchildren should remain and integral part of the overall education system. 14. The Roma/Gypsy community should be involved in the development of these programs and should be able to directly communicate this information to future teachers. 15. Recruitment and training of teachers from the Roma/Gypsy community should also be promoted (...)”. 2. The Parliamentary Assembly a) Recommendation No. 1203 (1993) on Gypsies in Europe 39. The general comments in this recommendation include: “One of the aims of the Council of Europe is to promote the formation of a true European cultural identity. Europe is home to many different cultures, all of which, including multiple minority cultures, contribute to its cultural diversity. Gypsies hold a special place among minorities. Living dispersed throughout Europe, unable to claim a country for their own, they constitute a true European minority who do not correspond to the definitions applicable to national or linguistic minorities. As a non-territorial minority, Gypsies contribute significantly to Europe’s cultural diversity, in multiple respects, be it through language and music or in their artisanal activities. Following the admission of new Member States from central and eastern Europe, the number of Gypsies living in the Council of Europe area has considerably increased. Intolerance towards Gypsies has always existed. However, outbreaks of racial or social hatred are occurring more and more regularly and strained relations between communities have contributed to creating the deplorable situation in which the majority of Gypsies live today. Respect for the rights of Gypsies, whether for their fundamental human rights, or their rights as a minority, is an essential condition for improving their situation. By guaranteeing equal rights, opportunities, and treatment, and by taking steps to improve the situation of Gypsies, it will be possible to revive their language and culture, thereby enriching European cultural diversity. It is important to guarantee to Gypsies the enjoyment of rights and liberties defined in Article 14 of the European Convention of Human Rights, as this enables them to assert their rights (...).” 40. Concerning the area of education, the recommendation states: “existing European teacher training programs for Gypsies should be expanded; Special attention should be paid to the education of women in general and mothers with their young children; Gifted young Gypsies should be encouraged to study and act as intermediaries for Gypsies; (...).” b) Recommendation No. 1557 (2002) on the legal situation of Roma in Europe 41. This recommendation states in particular: “(...) 3. Today, Roma are still subject to discrimination, marginalisation and segregation. Discrimination is widespread in all areas of public and private life, including access to public service, education, employment, heath services and housing, as well as to crossing borders and access to asylum procedures. Economic and social marginalisation and segregation of Roma are turning into ethnic discrimination, which generally affects the most vulnerable groups in society. 4. Roma constitute a special group, minority for twofold reason: ethnically minority, they also very often belong to the socially disadvantaged strata of society (...). 15. The Council of Europe can and must play an important role in improving the legal status of Roma, the level of equality they enjoy, and their living conditions. The Assembly calls on Member States to fulfil the following six general conditions, which are necessary to improve the situation of the Roma in Europe: (...) c) guarantee equality of treatment of the Roma minority as an ethnic or national minority group or in the fields of education, employment, housing, health and public services. Member States should pay special attention: (...) ii. to give Roma the opportunity to integrate into all educational structures, from kindergarten to university; iii. to develop positive measures to recruit Roma in public services of direct interest to Roma communities, such as primary and secondary schools, social welfare centres, local primary health care centres and local governments; iv. to eliminate any practice tending towards school segregation of Romani children, in particular the practice of referring them to schools or classes reserved for students with mental disabilities; d) to develop and implement positive action and preferential treatment for the socially disadvantaged classes, including the Roma, as a socially disadvantaged community, in the fields of education, employment, and housing (...); e) to take specific measures and to create special institutions for the protection of Romani language, culture, traditions and identity; (...) ii. to encourage Romani parents to send their children to primary and secondary school, and institutions of higher education and to correctly inform them of the importance of education; (...) v. recruit Romani teachers, especially in areas where the Roma population is considerable; f) to combat racism, xenophobia, and intolerance, and to ensure non-discriminatory treatment towards Roma on local, regional, national and international levels: (...) vi. to pay particular attention to phenomena of discrimination against the Roma, particularly in the fields of education and employment; (...).” 3. The European Commission against Racism and Intolerance (ECRI) a) ECRI’s General Policy Recommendation No. 3: Combating racism and intolerance against Roma / Gypsies (adopted by ECRI on 6 March 1998) 42. The relevant portions of this recommendation read as follows: “The European Commission against Racism and Intolerance: (...) Recalling that the fight against racism, xenophobia, anti-Semitism and intolerance is an integral part of the protection and promotion of human rights, and that these rights are universal and indivisible, and are the rights of all human beings, without distinction of any kind; Stressing that the fight against racism, xenophobia, anti-Semitism and intolerance is aimed above all at protecting the rights of vulnerable members of society; Convinced that any action against racism and discrimination should begin from the point of view of the victim and seek to improve his or her situation; Noting that Roma/Gypsies throughout Europe today suffer from persistent prejudices against them, are victims of racism deeply rooted in society, are the target of demonstrations, sometimes violent, of racism and intolerance, and that their human rights are regularly violated are threatened; Noting further that the persistent prejudices towards Roma/Gypsies drive discrimination against them in many areas of social and economic life, and that this discrimination significantly fuels the process of social exclusion from which Roma and Gypsy people suffer; Convinced that the promotion of the principle of tolerance is a guarantee of the maintenance of open and pluralistic societies, making peaceful coexistence possible; Recommends to the governments of the member states the following: (...) – To ensure that discrimination as such as well as discriminatory practices are combatted by means of adequate legislation and to ensure that specific provisions are included in civil law, in particular in the areas of employment, housing and education; (...) – To fight vigorously all forms of school segregation of Roma and Gypsy children and to ensure effectively equal access to education; (...).” b) ECRI’s General Policy Recommendation No. 7 on national legislation to combat racism and racial discrimination (Adopted by ECRI on 13 December 2002) 43. For the purposes of this recommendation, the following definitions apply: “a) “racism” the belief that grounds such as race, colour, language, religion, nationality or ethnic or national origin justifies contempt towards a person or group of people, or the idea of one’s superiority or of a group of people b) “direct racial discrimination” means any difference of treatment based on grounds such as race, colour, language, religion, nationality or national or ethnic origin, which lacks reasonable or objective justification. A difference of treatment lacks reasonable and objective justification if it does not pursue a legitimate aim or if there is no reasonable relationship of proportionality between the means employed and the aim pursued. c) “indirect racial discrimination” means the case where an apparently neutral factor such as a provision, criterion or practice cannot be so easily respected by persons belonging to a group distinguished by grounds such as race, colour, language, religion, nationality or national or ethnic origin, or disadvantages these persons, unless this factor has an objective and reasonable justification. This is so if it pursues a legitimate aim and if there is a reasonable relationship of proportionality between the means employed and the intended purpose. 44. In the explanatory memorandum to this recommendation, it is noted (point 8) that the definitions of these concepts of direct and indirect discrimination contained in paragraph 1(b) and 9c) of the recommendation are based on those contained in Council Directive 2000/43/EC of the Council on the implementation of the principle of equal treatment between persons irrespective of racial or ethnic origin, and Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, as well as the case-law of the European Court of Human Rights. c) ECRI’s report on Greece made public on 8 June 2004 45. ECRI recalls in its report from 8 June 2004 that in its previous report it had drawn the attention of Greek authorities to the situation of the Roma, in particular to the problems of eviction from their homes and of discrimination in access to public services and underlined the importance of overcoming local resistant to initiatives in favour of Roma. 46. After having expressed its concern, ECRI considers in its report from 8 June 2004 that, since the adoption of its second report on Greece, the situation of Roma in Greece has not fundamentally changed and that in general they experience the same difficulties – including discrimination – in housing, employment, education, and access to public services. 4. The Commissioner for Human Rights The final report by Mr Alvaro Gil-Robles on the human rights situation of Roma, Sinti and Travelers in Europe (dated 15 February 2006) 47. In the third part of this report, dedicated to discrimination within education, the Commissioner observes that if a significant number of Romani children do not have access to quality education equal to that offered to other children, it is also because of discriminatory practices and prejudices. In this respect, he notes that segregation within the education system is a common characteristic of many member States of the Council of Europe. In some countries, there are isolated schools in isolated camps, in others special classes for Romani children in ordinary schools, or a clear overrepresentation of Romani children in classes for children with special needs. It is frequent that Romani children are placed in classes for children with special needs, without adequate psychological or pedagogical evaluation, the real criteria being their ethnicity. Placement in special schools or classes means that these children often have a less ambitious curriculum than those in normal classes, which reduces their educational prospects and hence their chances of finding a job at a later stage. Automatic placement of Romani children in classes for children with special needs specifically reinforces social stigma by labelling Romani children as less intelligent and less capable. At the same time, segregated education deprives Romani children and non-Romani children of the opportunity to know each other and to learn to live as equal citizens. It excludes Romani children from normal society from a very early age, increasing the risk of them being caught in the vicious cycle of marginalisation. 48. In conclusion, the Commissioner makes a number of recommendations in the area of education. According to him, when segregation in education still exists in one form or another, it must be replaced by an ordinary integrated education and, if necessary, prohibited by legislation. Adequate resources should be allocated to pre-school education, language training, and the training of school assistants to ensure the success of desegregation efforts. Then, an adequate assessment should be made before placing children in special classes, so that the only criteria for placement are the objective needs of the child and not his or her ethnicity.” THE LAW I. ON THE ADMISSIBILITY OF THE APPLICATION 49. On principle, the Government plead the inadmissibility of the complaint for failure to exhaust domestic remedies. In particular, it claims that in virtue of Article 45 § 4 of Legislative Decree No. 18/1989, the applicants had the opportunity to appeal to the Administrative Court of Appeal against the for an action for annulment against the omission of the administration to register their children. In addition, the Government plead that the applicants could, on the basis of Article 52 § 2 cited above, add to their action for annulment a request for the suspension of the alleged omission of the administration. 50. The Court considers that said exception is closely linked to the substance of the applicants’ grievance on the grounds of Article 13 of the Convention and decides to attach it to the merits. 51. The Court considers furthermore that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it faces no other ground of admissibility. It should therefore be declared admissible. II. ON THE ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 52. The applicants complain that no remedy in domestic law was available to them through which they could have raised their grievances drawn from Article 14 of the Convention taken in conjunction with Article 2 of Protocol No. 1. They invoke Article 13 of the Convention, which reads as follows: “Anyone whose rights and freedoms recognised in the (...) Convention have been violated, has the right to an effective remedy before a national authority, even if the violation was committed by persons acting in their official duties.” 53. The Government holds that Article 13 of the Convention has not been violated. Referring to its argument elaborated in the context of its objection to the admissibility of the application, it asserts that the applicants could have brought an action for annulment before the administrative courts under Articles 45 and 52 of Legislative Decree No. 18/1989, against the tacit refusal of the administration to register their children at the Aspropyrgos primary school. 54. The applicants claim that they had no remedy available to provide them with adequate redress for the violation in question. They claim to have made use of the legal means for the prompt registration of their children at the primary school since they have addressed, through the intermediary of the Greek Helsinki Monitor, to the competent minister and Ombudsman of the Republic. They consider that a referral to the administrative courts wold not have ensured the prompt schooling of their children for the 2004-2005 school year, given the delay by these courts in dealing with the appeals before them. Lastly, the applicants note that their grievance is mainly aimed at the racist segregation of their children in schools. They argue on this point that no appeal before the administrative courts could have been effective given that, according to domestic law, the segregation of Romani children in the school setting is acceptable. On this point, they refer to the letter from the Institute of Education of People of Greek Origin and Intercultural Education dated 2 February 2004, according to which eighteen schools attended only by “gypsy children” had functioned in Greek territory during the 2002-2003 school year (see paragraph 36 above). 55. The Court recalls that Article 13 of the Convention guarantees the existence in domestic law of a remedy for grievances that may be considered “defensible” under the Convention. Such an appeal must enable the competent national authority to know the content of the complaint based on the Convention and to offer the appropriate remedy, even if the contracting States enjoy a certain margin of judgment as to the manner of complying with the obligations of this provision. 56. In addition, the Court notes that the rule of exhaustion of domestic remedies, stated in Article 35 § 1 of the Convention, is based on the assumption, incorporated in Article 13, with which it has close affinities, that the domestic order provides an effective remedy, in practice as well as in law, for the alleged violation (Kudła v. Poland [GC], No. 30210/96, § 152, ECHR 2000-XI ; Hassan and Tchaouch v. Bulgaria [GC], no. 30985/96, §§ 96-98, ECHR 2000‑XI). The Court recalls that in virtue of the rule of exhaustion of domestic remedies the applicant must, before referring to the Court, have given to the responsible State, using judicial resources that may be considered effective and sufficient by national legislation, the ability to remedy the alleged violations by domestic means (see, inter alia, Fressoz and Roire v. France [GC], No. 29183/95, § 37, ECHR 1999‑I). 57. Article 35 § 1 of the Convention prescribes the exhaustion only of remedies that are available, adequate, and relate to incriminating violations. They must exist to a sufficient degree of certainty not only in theory but also in practice, without which they lack the necessary effectiveness and accessibility; it is incumbent upon the respondent State to show that these requirements are met (see, inter alia, Dalia v. France, judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 87, § 38). Lastly, someone who has made an appeal that is of a nature to directly remedy – and not indirectly – the situation at hand is not obligated to exhaust other potentially open but improbably effective measures (Manoussakis and Others v. Greece, judgment of 26 September 1996, Reports 1996-IV, § 33). 57. In this case, the Court notes that the Government has not provided any case law to demonstrate that the use of the remedies mentioned above could have led to the annulment of the alleged omission by the administration to register the children in school. However, it is for the State which alleges non-exhaustion of domestic remedies to establish the existence of effective and sufficient remedies (Soto Sanchez v. Spain, no. 66990/01, § 34, 25 November 2003). In light of this, it is for the Court to dismiss the Government’s objection based on non-exhaustion of domestic remedies. In addition, in view of the fact that the Government has not mentioned any other remedy that they applicants could have exercised in order to obtain the redress of the alleged violation of Article 14 of the Convention in conjunction with Article 2 of Protocol No. 1, the Court concludes that the State has failed to fulfil its obligations under Article 13 of the Convention. 58. Accordingly, there has been a violation of that provision. III. ON THE ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL NO. 1 AND ARTICLE 14 OF THE CONVENTION 59. The applicants complain that the non-enrolment of their Romani children for the 2004-2005 school year is due to inertia and to the competent authorities’ omissions. In addition, they see discrimination based on race and ethnicity in the fact that their children have had to attend special preparatory classes, held in separate rooms in the main building of the primary school of Aspropyrgos, where the other children from a comparable situation are welcomed. They invoke, in this respect, Articles 2 of Protocol No. 1 and 14 of the Convention, which read as follows: Article 14 of the Convention “The enjoyment of the rights and freedoms set forth in this 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.” Article 2 of Protocol No. 1. “No one can be denied the right to education. The State, in the exercise of its functions in the field of education and teaching, shall respect the right of parents to provide such education and instruction in accordance with their religious and philosophical convictions.” A. The parties’ submissions 60. The Government affirms that the educational authorities of Aspropyrgos have done everything possible to register the Romani children living in the Psari camp in primary school. It notes that in November and December 2004, a delegation of Aspropyrgos’ primary school teachers visited the Roma living in the Psari camp to convince them to enrol their children in school. It adds that when the applicants went to the director of the 10th primary school of Aspropyrgos, they did not have the required documents for enrolment. Finally, it notes that for the 2004-2005 school year and previous years, Romani children had been enrolled at the 10th primary school of Aspropyrgos. 61. As for the creation of special preparatory classes, the Government points out that they did not pursue segregative purposes in any way. He asserts that these classes had been only intended for students of an age older than that of primary school enrolment. According to the Government, the objective of these classes was mainly to teach the students reading and writing so that they could be subsequently integrated into ordinary classes. These classes initially took place in the afternoon at the premises of the 10th primary school of Aspropyrgos, because of a lack of space in the morning, before being transferred to prefabricated rooms installed near the Romani camp in Psari. The Government submitted an undated and unsigned document, titled “Report on the scholarly life and educational activity in the school complex for Romani children in Gorytsa Park”. According to this report, during their enrolment and their schooling in preparatory classes, the students concerned had been subjected to assessment tests which had shown that 90% of them had weaknesses in writing and reading the Greek language. In addition, the Government notes that the applicants had been informed of the creation of these preparatory classes and that they had given their consent. Finally, it notes that it has been planned that for the 2007-2008 school year, the preparatory classes will be held in a new building intended to be built in the school complex of the 10th primary school of Aspropyrgos to accommodate a new primary school. 62. The applicants refer to the Ministry of National Education’s directives in virtue of which the administration is required to facilitate the enrolment of Romani children in school. They maintain that according to domestic law every person who fails to enrol their child at school incurs criminal responsibility. They allege that the failure to bring criminal proceedings against them in the present case only confirms the indifference of the educational authorities regarding the registration of Romani children in primary school. 63. Regarding the schooling of Romani children in separate preparatory classes, the applicants refer in particular to the incidents created by the parents’ association of Aspropyrgos primary school students at the beginning of the 2005-2006 school year. These incidents are based on racism, which explains the segregative attitudes of the competent authorities. As for the steps taken by the school authorities during the summer of 2005 to register Romani students in primary school, the applicants claim that these were inappropriate: the Roma would not have had electrical facilities in their camp to listen to the radio, they would be illiterate, and finally, the postal service would not serve their camp. 64. The applicants allege the contradictory nature of the Government’s arguments that the constitution of preparatory classes for Romani students was dictated by objective reasons. In particular, they state that if the morning classes never took place, it is so that Romani students do not go to the other class. They consider that it would have been possible for their children to attend morning classes, given the limited number of students (from eight to twelve) who attended afternoon class in the main building of the school. In addition, the applicants hold that the special school did not actually work to prepare the Romani students to integrate, since none of these students subsequently joined ordinary classes. The applicants note on this point that today none of the Romani students attend an ordinary or preparatory class; on the other hand, the preparatory classes are abolished, and Romani students have been transferred to the 12th primary school of Aspropyrgos, a newly created establishment which is not yet operational. B. The Findings of the Court 1. General Principles a) On Article 2 of Protocol No. 1 65. The Court recalls that Article 2 of Protocol 1 implies the right of the State to establish obligatory schooling, whether in public schools or through quality private lessons, and that the verification and application of educational standards is an integral part of this right (Family H v. United Kingdom, No. 10233/83, Commission Decision of 6 March 1984, Decisions and Reports (DR) 37, page 109). In addition, the Court more recently underlined the importance of children’s schooling in primary schools, not only to acquire knowledge but also to integrate children into society. The Court has also recognised the usefulness of the system of compulsory schooling to avoid the emergence of a society of two entities with different philosophical convictions (Konrad and others v. Germany (dec.), no. 35504/030, 11 September 2006). In light of this, the Court underlines the particular importance, in systems where school attendance in public or private schools is obligatory, of school enrolment for all school-aged children, which is all the more important for children belonging to minority groups. b) On Article 14 of the Convention 66. The Court reiterates that discrimination consists of a difference in treatment, without objective and reasonable justification, between people in comparable situations (Willis v. United Kingdom, no. 36042/97, § 48, UCHR 2002-IV). Contracting States enjoy a certain margin of discretion in determining whether and to what extent differences between otherwise similar situations justify differences in treatment (Gaygusuz v. Austria, judgment of 16 September 1996, reports 1996-IV, § 42), but it is for the Court to make a final ruling on compliance with the requirements of the Convention. 67. Article 14 does not forbid a member State from treating groups differently to correct “factual inequalities” between them; in fact, in certain circumstances, it is the absence of differential treatment to correct an inequality which may, in the absence of an objective and reasonable justification, result in a violation of the provision in question (Thlimmenos v. Greece [GC], no. 34369/97, § 44, UCHR 2000-IV; D.H. and others v. Czech Republic [GC], no. 57325/00, § 175, ECHR 2007-...). The Court also accepts that a policy or general measure may be considered discriminatory if it has disproportionate adverse effects on a group of people, even if it did not specifically concern this group (Hugh Jordan v. United Kingdom, no. 24746/94, § 154, 4 May 2001; Hoogendijk v. Netherlands (dec.), no. 58461/00, 6 January 2005), and that discrimination potentially contrary to the Convention could result from a factual situation (Zarb Adami v. Malta, no. 17209/02, § 76, ECHR 2006-...). 68. Discrimination based especially on one’s ethnicity constitutes a form of racial discrimination. This is a particularly condemnable discrimination which, in view of its dangerous consequences, requires special vigilance and a vigorous response on the part of the authorities. Therefore, they have an obligation to employ all the means at their disposal to fight racism, thus reinforcing democracy’s conceptions of society, perceiving diversity not as a threat but as a wealth (Natchova and others v. Bulgaria [GC], nos. 4377/98, § 145, ECHR 2005-...; Timichev v. Russia, nos. 55762/00 and 55974/00, § 56, ECHR 2005-...). The Court has also considered that, in democratic society based on principles of pluralism and respect for different cultures, no difference in treatment based exclusively or in part on one’s ethnic origin could be objectively justified (Timichev, cited above, § 58; D.H. and Others v. Czech Republic, cited above, § 176). 69. In that which concerns the burden of the proof of the matter, the Court has judged that, when an applicant has established a difference in treatment, it is incumbent upon the Government to demonstrate that this difference in treatment was justified (see, for example, Chassagnou and others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, §§ 91-92, ECHR 1999‑III; Timichev, cited above, § 57). 70. As for factors which may constitute such a prima facie case and hence to shift the burden of proof to the respondent State, the Court noted (Natchova and others, cited above, § 147) that, in the course of the proceedings before it, there was no procedural obstacle to the admissibility of evidence nor any predefined formula applicable to their assessment. In effect, the Court adopts the conclusions that, in its opinion, are supported by an independent evaluation of all of the evidence, including the inferences which it can draw from the facts and observations of the parties. In accordance with the settled case law of the Court, the evidence may thus result from a body of indications or presumptions which are not refuted, sufficiently serious, precise, and consistent. Moreover, the degree of conviction necessary to reach a particular conclusion and, in this respect, the distribution of the burden of proof, are inextricably linked to the specificity of the facts, the nature of the formulated claim and to conventional law in question (D.H. and Others v. Czech Republic, cited above, § 178). 71. Finally, it is evident from the Court’s case-law that the vulnerability of Roma/Gypsies implies the need to pay special attention to their needs and their specific way of life, both in the regulatory framework under consideration and in the decision-making process of this particular case (Chapman v. the United Kingdom [GC], no. 27238/95, § 96, ECHR 2001-I; Connors v. the United Kingdom, no. 66746/01, § 84, 27 May 2004). The Court notes that, because of their vicissitudes and their perpetual uprooting, the Roma constitute a disadvantage and vulnerable minority of a particular character (see also the general observations of Parliamentary Assembly Recommendation no. 1203 (1993) on Gypsies in Europe, paragraph 39 above, and point 4 of its Recommendation No. 1557 (2002) on the legal situation of Roma in Europe, paragraph 41 above). They therefore need special protection. As evidenced by the activities of many Greek and European bodies, including the recommendations of the Council of Europe bodies (paragraphs 34-48 above), this protection extends equally to the area of education. The present affair thus deserves special attention, especially since at the time of the Court’s referral the persons concerned were minors for whom the right to education was of the utmost importance (D.H. and Others v. the Czech Republic, cited above, § 182). 72. In addition, the Court has already observed that an international consensus is emerging among contracting States of the Council of Europe to recognise the particular needs of minorities and the obligation to protect their security, their identity and their way of life, not only to protect the interests of minorities themselves but also to preserve cultural diversity which benefits all of society as a whole (Chapman v. the United Kingdom, cited above, §§ 93-94). 2. Application of the aforementioned principles to the present case 73. The Court observes at the outset that it finds itself confronted with divergent versions of certain facts, notably on the character of the visit to the premises of the primary schools of Aspropyrgos on 21 September 2004 by the parents of Romani children. The applicants allege that the purpose of this visit was the registration of their children, while the Government asserts that the applicants wished only to obtain information about registration for their minor children. In addition, the parties disagree, in particular, on the visit of a delegation of teachers to the Psari camp in November and December 2004, on the criteria for selecting children for preparatory schools, and on the current situation regarding the schooling of Romani students. 74. The Court recalls that it remains free to make its own assessment in light of the body of facts at its disposal (Ribitsch v. Austria, judgment of 4 December 1995, Series A no. 336, p. 24, § 32). It notes also that even if several facts remain uncertain, there is sufficient evidence from the documents submitted by the parties to assess the case. 75. In this case, the applicants hold that their children suffered, without objective and reasonable justification, a less favourable treatment than that accorded to non-Roma in a comparable situation, and that this situation constitutes discrimination contrary to the Convention. The Court will therefore first consider whether or not the facts of the case give rise to the presumption of discrimination. If so, it will then investigate whether the alleged discrimination is based on a reasonable and objective basis. a) The existence in the present case of evidence justifying a presumption of discrimination 76. The Court notes at the outset that the parties confirm that the applicants’ children missed the 2004-2005 school year and that preparatory classes were created within the 10th primary school of Aspropyrgos, but that, on the other hand, they disagree as to the competent authorities’ intentions relating to the acts or omissions attributed to them. The applicants allege that the authorities continued to segregate Romani children, while the Government asserts that their purpose was to facilitate the integration of Romani children into ordinary classes at the Aspropyrgos primary school. 77. The Court has already recognised the difficulties which the applicants may have in proving the existence of discriminatory treatment (Natchova and others, cited above §§ 147 and 157). To guarantee to the concerned persons an effective protection of their rights, less stringent rules of evidence are required in the case of an allegation of indirect discrimination. 78. If a refutable presumption of discrimination with respect to the effect of a measure or practice is thus established by the applicants alleging an act of discrimination, it is then incumbent upon the defendant State to refute this presumption by demonstrating that the difference in question is not discriminatory (see, mutatis mutandis, Natchova and others, cited above, § 157). In fact, with regard in particular to the specific nature of the facts and the nature of allegations made in this type of case (ibid., § 147), it would be in practice extremely difficult for the interested parties to prove indirect discrimination without such a reversal of the burden of proof. 79. In the present case, the Court notes that the creation of the three preparatory classes in question was only foreseen in 2005, when the local authorities found themselves confronted with the question of the schooling of Romani children residing in the Psari camp. In particular, it is clear from the document No. Φ20.3/747 submitted by the 1st Office of Primary Education of West Attica on 5 June 2007 that the Departmental Director of Education in the region of Attica convened an informal meeting of the competent authorities of the municipality of Aspropyrgos to deal with the additional enrolment of Romani students. The Government has given no example, prior to the facts of the case, of the creation of special classes within primary schools of Aspropyrgos, even though other children of Romani origin were enrolled in the past. 80. In addition, the Court notes that the parties agree on the composition of the preparatory classes: in fact, these were attended exclusively by students of Romani origin. The Court does not lose sign in this respect that the creation of preparatory classes and, a fortiori, of schools designed exclusively for the schooling of Romani children was at least tolerated by domestic law: by a letter on 2 February 2004, the Institute of Education of Greek People and of Intercultural Education informed the representative of the Greek Helsinki Monitor that twenty-eight schools attended exclusively by “Gypsy children” had been operational on Greek territory during the 2002-2003 school year (paragraph 36 above). 81. The Court considers it also necessary to refer to the historical context of the case, and in particular to the racist incidents which took place in front of the 10th primary school of Aspropyrgos in September and October 2005. It acknowledges that these incidents cannot be attributed to state authorities, since they were organised, as regrettable as it may be, by private individuals, namely some of the parents of non-Romani students of the 10th primary school of Aspropyrgos. The Court can only note on this point that police forces were dispatched several times to primary schools of Aspropyrgos in order to maintain order and to avoid the commission of illegal acts against the Romani students. Nonetheless, this does not preclude the assumption that the aforementioned incidents affected the concerned authorities’ subsequent decision to place the Romani student in pre-fabricated rooms constituting an annex to the 10th Aspropyrgos primary school. 82. In these circumstances, the evidence presented by the applicants and those in the file of the case can be considered sufficiently reliable and revealing to give rise to a strong presumption of discrimination. It is thus necessary to reverse the burden of proof and to place it upon the Government, which must demonstrate that this difference in treatment was the result of objective factors not linked to the ethnicity of the people concerned. b) On the existence of an objective and reasonable justification 83. The Court reiterates that a distinction is discriminatory if it “lacks objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is no “reasonable relationship of proportionality” between the means employed and the end pursued (see, among many others, Larkos v. Cyprus [GC], no. 29515/95, § 29 ECHR 1999-I; Stec and others v. the United Kingdom [GC], no. 65731/01, § 51, ECHR 2006-VI). In case of a difference of treatment based on race, colour, or ethnicity, the concept of objective and reasonable justification must be interpreted in a manner as strict as possible (D.H. and others v. the Czech Republic, cited above, § 196). 84. The Court notes first of all that the applicants complain of the school authorities’ refusal to enrol their students for the 2004-2005 school year. It observes that it does not appear from the evidence from the file that the applicants had endured an explicit refusal on the part of the authorities of the 10th primary school of Aspropyrgos to enrol their children. It refers notably to the report of the Ombudsman of the Republic stating that there was not, on the part of the competent services, a general and unjustified refusal to enrol the Romani children in the primary schools. It further notes that if the parties agree on the fact that on 21 September 2004 the applicants went to see the director of the 10th primary school of Aspropyrgos, they disagree on the question of the aim of this meeting: the applicants allege that the point of their visit was the registration of their children, while the Government asserts that the applicants wished simply to obtain information on this subject. 85. The Court considers that, even to admit that the applicants had simply sought information on the conditions of registering their children in primary school, it is indisputable that they explicitly manifested to the competent school authority their wish to school their children. Given the vulnerability of the Roma, which implies the necessity to pay special attention to their needs (paragraphs 42 and 72 above), and the fact that Article 14 requires in certain circumstances differential treatment to correct inequality the competent authorities should have recognised the particularity of the case and facilitated the registration of children of Romani origin, even in the case where some of the required administrative documents were missing. The Court notes on this point that Greek law recognises the particularity of the situation of Roma, by facilitating the procedure of enrolling their children in school (see paragraph 32 above). Moreover, as confirmed by the Ombudsman of the Republic, domestic legislation provides for the possibility of enrolling students in primary school on a simple declaration of those who exercise parental authority, provided that they provide birth certificates in due course. 86. This weighty obligation on the school authorities of Aspropyrgos was all the more obvious as they were aware of the problem of schooling children living in the Psari camp and the necessity to proceed with their enrolment in primary school: the interview of the applicants with the director of the 10th primary school of Aspropyrgos which took place on 21 September 2004 had been preceded, in August 2004, by a press release from the Minister of Education which emphasised the importance of integrating Romani children in the process of national education, and, on 10 September 2004, by a visit by the Secretary of the Department of Greek and Intercultural Education, accompanied by two representatives from the Greek Helsinki Monitor, to the Romani camps in Psari with the aim of ensuring the enrolment of all the Romani children of schooling age. The Government does not dispute on this point that the Greek Helsinki Monitor had subsequently informed the competent authorities of the Minister of Education in Religious Affairs, without them acting on this case. 87. With regard to special classes operating within the 10th primary school of Aspropyrgos, the Court notes first of all a certain inconsistency with regard to the criteria which, according to the Government, are supposed to govern the selection of students to be assigned to preparatory classes. According to the letter from the 1st Office of Primary Education of West Attica dated 5 June 2007, facing the additional enrolment of students of Romani origin for the 2005-2006 school year, it was age that was used to determine the students who had to attend special classes. However, in its letter of 17 March 2006, the Directorate of Primary Education of West Attica informed the Ministry of National Education and Religious Affairs that the new students of Romani origin had been welcomed into an Annex of the 10th Aspropyrgos Primary School due to a lack of space in the main building of the school. Finally, in its letter of 20 June 2006, the 3rd district of the Educational Council for Primary Education of Attica declared explicitly to have used the criteria of Romani origin of the interested “with a view to assure their adaptation to the school environment, taking into account the deficiencies they suffer and diverse other reasons rendering their integration into ordinary classes impossible.” (paragraph 29 above). 88. The Court deduces from that which precedes this that the competent authorities have not relied on a single and clear criterion from which to choose the students to be assigned to preparatory classes. It notes in particular that in their letters from 17 March and 20 June 2006 the school authorities invoke exclusively criteria directly referring to the ethnic origin of the persons concerned. Moreover, it finds that even the application of the criteria of age mentioned in the letter of 5 June 2007 would not be likely to remove the discriminatory character reserved for the children in question. In fact, the Government makes no mention in its observation of adequate tests to which the children concerned would have been subjected in order to assess their aptitudes or possible learning difficulties (see D.H. and others v. the Czech Republic, cited above, §§ 199-201). 89. The Government has submitted an unsigned, undated document pertaining to school life and educational activity in preparatory classes according to which the students of preparatory classes had been subjected to evaluation tests which had demonstrated that 90% among them showed weaknesses in writing and reading the Greek language. The Court notes, however, that the students concerned had been submitted to these tests after just having been distributed in preparatory classes, namely “at the time of their registration and their schooling”. Moreover, the Government gives no details as to the content of these tests and does not rely on any expert opinion to prove their adequacy (see on this point, D.H. and others v. the Czech Republic, cited above, § 200). 90. In addition, the Court notes that the stated purpose of the preparatory classes was that the concerned students would be brought up the standard level in order to integrate into ordinary classes. However, the Government does not cite a single example of a student who, after having been placed in a preparatory class – there had been more than fifty – would, after the end of two school years, integrated into ordinary classes of the 10th primary school of Aspropyrgos. In addition, there are no assessment tests to which the Romani students should have been periodically submitted to enable schools to assess, on the basis of objective data and not on approximative evaluations, their aptitude to integrate into ordinary classes. 91. The Court considers it necessary to emphasise the importance of establishing an adequate system of evaluating the aptitudes of children presenting shortcomings in learning in view of bringing them up to par. When the students concerned belong to an ethnic minority, as in the case in question, such a system is necessary, before all, to guarantee their potential placement in special classes on the base of non-discriminatory criteria. In this case, and given the racist incidents provoked by parents of non-Romani students of Aspropyrgos, the introduction of such a system would also have given rise to the applicants’ and their children’s feeling that their placement in preparatory classes was not inspired by segregative motivations. While admitting that it is not for it to decide on this question of a psycho-pedagogical nature, the Court considers that this would have particularly contributed to the unhindered integration of students of Romani origin not only in ordinary classes but into local society. 92. With regard to the parental consent granted by the applicants, the Court notes that the Government implies that given a difference of treatment having been established in this case, such consent would imply the acceptance of this difference, even if it discriminated, that is, the renunciation to the right to not be subject to discrimination. However, the Court’s case-law requires that the renunciation of a right guaranteed by the Convention – to the extent that it is lawful – is unequivocally established that it must be made knowingly, that is, on the basis of informed consent (Pfeifer and Plankl v. Austria, judgment of 25 February 1992, Series A no. 227, pp. 16-17, §§ 37-38), and without constraint (Deweer v. Belgium, judgment of 27 February 1980, Series A no. 35, § 51). 93. In the circumstances of the case, the Court is not convinced that the applicants, as members of a disadvantaged community often without education, were able to assess all the aspects of the situation and the consequences of their consent. It seems, in addition, clear that at least some of the applicants found themselves on this occasion confronted by a dilemma. As the first applicant indicated in his testimony under oath of 31 May 2007 before the Elsefina Peace Court, he had to choose between the schooling of his children in ordinary classes, with the risk that their integrity would be placed in peril by “furious” non-Romani people, or their education in the “ghetto school.” 94. Recalling the fundamental importance of the prohibition of racial discrimination (Natchova and others, cited above, § 145; Timichev, precited, § 56), the Court considers that one cannot admit the possibility of renouncing the right to not be the object of such discrimination. In fact, such a renunciation would run up against a significant public interest (see D.H. and others v. Czech Republic, cited above, § 204). 95. In certain conditions and in view of the considerations listed above, the Court is not convinced that the contested difference in treatment between Romani children and other non-Romani children is based on an objective and reasonable justification and there exists a reasonable relationship of proportionality between the means employed and the aim in sight. In particular, it considers that, despite the authorities’ willingness to provide schooling for the Romani children, the arrangements for registering the children in question at school and their assignment in special preparatory classes – hosted in an annex to the main building of the school – has definitively resulted in discrimination. 96. Accordingly, there has been in this case a violation of Article 14 of the Convention taken in conjunction with Article 2 of Protocol No. 1 in respect of each of the applicants. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 97. According to Article 41 of the Convention, "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. Damages 98. The applicants claim a lump sum of 180,000 euros (EUR) for non-pecuniary damage. 99. The Government claims that the finding of a violation would in itself constitute sufficient just satisfaction. In addition, it considers that the sum awarded to the applicants should not exceed EUR 10,000. 100. The Court considers that the applicants have suffered non-pecuniary damage, in particular because of the humiliation and the frustration caused to them by the discrimination suffered by their children. This moral injury is not sufficiently compensated by the findings of violation of the convention. However, the Court considers the amount sought by the applicants to be excessive. Making its judgment on an equitable basis, it considers that it is appropriate to award each of them EUR 6,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that sum. B. Costs and expenses 101. The applicants also demand, in support of the invoice, EUR 2,000 for the costs and expenses incurred before the domestic courts and the Court. 102. The Government asserts that there is not a causal link between the costs and expenses incurred in the domestic proceedings and the alleged violations of the Convention. 103. According the Court’s case-law, an applicant can obtain reimbursement of their costs and expenses only in so far as their reality, their necessity, and the reasonableness of their rate are established. Taking into account the reasonableness of the amount claimed and the fact that an invoice was produced, the Court accepts this claim in its entirety and jointly awards the applicants EUR 2,000 as such, plus any amount that may be due as taxes on this amount. C. Default interest 104. The Court considers it appropriate to model the rate of default interest on the interest rate on the European Central Bank’s marginal lending facility plus three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY, 1. Affirms the Government’s objection to non-exhaustion of domestic remedies and rejects it; 2. Declares the application admissible 3. Holds that there has been a violation of Article 13 of the Convention; 4. Holds that there has been a violation of the Convention in conjunction with Article 2 of Protocol No. 1; 5. Holds (a) that the respondent State is to pay to each of the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 6,000 (six thousand euros) for non-pecuniary damage and EUR 2,000 (two thousand euros) to the applicants jointly for costs and expenses, plus any tax that may be chargeable to them by way of tax on such sums; (b) from the expiry of that period until payment, such amounts shall be increased by simple interest at a rate equal to that of the marginal lending facility of the European Central Bank applicable during that period, increased by three percentage points; 6. Rejects the claim for just satisfaction for the remainder. Done in French, then communicated in writing on 5 June 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of the Court. Søren NielsenNina VajićRegistrarPresident List of applicants: 1. Spiridon SAMPANIS 2. Vassiliki MOURATI 3. Athanasios SAMPANIS 4. Maria KARAGOUNI 5. Nikolaos VELIOS 6. Maria KARAHALIOU 7. Vassiliki KOURAKI 8. Eleni LIAKOPOULOU 9. Sotirios SAMPANIS 10. Ekaterini KARAHALIOU 11. Andreas SAINIS

FOURTH SECTION CASE OF STEFF v. THE UNITED KINGDOM (Application no. 63476/00) JUDGMENT STRASBOURG 20 November 2007 FINAL 20/02/2008 This judgment in so far as it concerns point 1 of the operative part 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 Steff v. the United Kingdom, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:[Note1] MrJ. Casadevall, President,SirNicolas Bratza,MrG. Bonello,MrK. Traja,MrS. Pavlovschi,MrL. Garlicki,MrsP. Hirvelä, judges,[a2]and Mr T.L. Early, Section Registrar, Having deliberated in private on 23 October 2007[Note3], Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 63476/00) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr Neil Steff (“the applicant”), on 26 September 2000. 2. The applicant was represented before the Court by Ms P. Glynn, a solicitor practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office. 3. The applicant complained under Articles 8 and 14 of the Convention and Article 1 of Protocol No. 1 that, because he was a man, he was denied social security and tax benefits equivalent to those received by widows. 4. By a partial decision of 15 January 2002 the Court decided to communicate this application. On 6 May 2003, after obtaining the parties’ observations, the Court declared the application admissible in so far as the complaint concerned Widowed Mother’s Allowance and Widow’s Bereavement Allowance and declared the remainder of the application inadmissible. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1955 and lives in Hertfordshire. 6. The applicant’s wife died on 9 February 1999, leaving two children, born in 1987 and 1992. On 11 May 2000 the applicant applied for widow’s benefits. By a letter dated 15 May 2000, the Benefits Agency informed him that it was unable to pay him any of the benefits claimed because he was not a woman. 7. On 6 June 2000 the applicant applied for an allowance under the Income and Corporation Taxes Act 1988 on the same basis as he would receive it if he were a widow whose husband died in similar circumstances. He only received a letter of reply on 25 July 2000. 8. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no social security or tax benefits were payable to widowers under United Kingdom law. II. RELEVANT DOMESTIC LAW 9. The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 14-26, ECHR 2002-IV and Hobbs, Richard, Walsh and Geen v. United Kingdom, nos. 63684/00, 63475/00, 63484/00 and 63468/00, 26 March 2007. THE LAW I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL NO. 1 AND/OR ARTICLE 8 OF THE CONVENTION. 10. The applicant complained that British social security and tax legislation discriminated against him on grounds of sex, in breach of Article 14 of the Convention taken in conjunction both Article 8 of the Convention and/or Article 1 of Protocol No. 1. Article 14 of the Convention provides: “The enjoyment of the rights and freedoms set forth in this 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.” Article 1 of Protocol No. 1 provides: “1. Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. 2. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” Article 8 provides (as relevant): “1. Everyone has the right to respect for his private and family life... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of ... the economic well-being of the country...” A. Widow’s Bereavement Allowance 11. The applicant submitted that in 2002 he accepted the Government’s offer of compensation amounting to 742.95 pounds sterling (“GBP”) which however did not include interest and did not contain an acceptance that there had been a violation of his rights. 12. The Government submitted that the payment of monies to the applicant was made as a result of provisions of United Kingdom domestic law of general application, which were quite unrelated to the question raised under the Convention by this complaint. The offer and eventual repayment of the sum equivalent to Widow’s Bereavement Allowance (“WBA”) had been made to the applicant solely because of an administrative error on the part of the Inland Revenue. 13. The Government submitted that there was no reason why the applicant should have made an application to the Court and remained of the view that the complaint was inadmissible. 14. The Court notes that the applicant received and accepted the same amount in repayment as he would have received in WBA as a consequence of administrative errors ensuing from his claim. 15. In these circumstances, the applicant cannot claim to be directly affected by the alleged discrimination between men and women or to be a victim of a violation of the Convention. 16. Accordingly, the Court finds that there has been no violation of any of the Articles relied on in respect of his complaint regarding WBA. B. Widowed Mother’s Allowance 17. The applicant complained that the United Kingdom authorities’ refusal to pay him the social security benefit to which he would have been entitled had he been a woman in a similar position, namely Widowed Mother’s Allowance (“WMA”), constituted discrimination against him on grounds of sex contrary to Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. 18. By a letter of 11 May 2005 the respondent Government informed the Court that the House of Lords had decided, in relation to the claims for Widowed Mother’s Allowance (WMA) and Widow’s Payment (WPt), that there was in principle no objective justification at the relevant time for not paying these benefits to widowers as well as widows, but that the Government had a defence under section 6 of the Human Rights Act 1998 (the HRA). It noted that, in view of this, the multitude of cases before the Court and the fact that the HRA defence was only applicable in the domestic arena, the Government were prepared, in principle, to settle all claims made by widowers against the United Kingdom arising out of the arrangements applicable prior to April 2001 for the payment of WMA and WPt. 19. By a letter of 15 May 2006 the applicant’s legal representatives informed the Court that Mr Steff had been offered GBP 6,589.14 in respect of his claims for WMA and that he had accepted payment. 20. The Court takes note of the agreement reached between the parties (Article 39 of the Convention). It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols (Article 37 § 1 in fine of the Convention and Rule 62 § 3 of the Rules of Court). 21. Accordingly this complaint should be struck out of the list of cases. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been no violation of Article 14 in conjunction with Article 1 of Protocol No. 1 to the Convention and/or Article 8 of the Convention in relation to the complaint concerning Widow’s Bereavement Allowance; 2. Decides to strike the remainder of the application out of its list of cases. Done in English, and notified in writing on 20 November 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. T. L. EarlyJosep CasadevallRegistrarPresident[Note4] [Note1]Judges names are to be followed by a COMMA and a MANUAL LINE BREAK (Shift+Enter). The Registrar’s name is not to be lined up with the judges’ names (no tab to be added). [a2]Substitute judges’ names are not to appear. [Note3]Indicate only the date(s) of the deliberations of the Chamber which actually adopts the judgment. [Note4]Check names. Adapt tabs.

GRAND CHAMBER CASE OF ILNSEHER v. GERMANY (Applications nos. 10211/12 and 27505/14) JUDGMENT STRASBOURG 4 December 2018 This judgment is final but it may be subject to editorial revision. In the case of Ilnseher v. Germany, The European Court of Human Rights, sitting as a Grand Chamber composed of: Guido Raimondi, President,Angelika Nußberger,Linos-Alexandre Sicilianos,Helena Jäderblom,Robert Spano,Vincent A. De Gaetano, Kristina Pardalos,Paulo Pinto de Albuquerque,Aleš Pejchal,Dmitry Dedov,Iulia Antoanella Motoc,Jon Fridrik Kjølbro,Stéphanie Mourou-Vikström,Georges Ravarani,Alena Poláčková,Pauliine Koskelo,Lәtif Hüseynov, judges,and Johan Callewaert, Deputy Grand Chamber Registrar, Having deliberated in private on 29 November 2017 and on 11 July 2018, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in two applications (nos. 10211/12 and 27505/14) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Mr Daniel Ilnseher (“the applicant”), on 24 February 2012 and 4 April 2014 respectively. 2. The applicant, who had been granted legal aid in connection with the presentation of both applications, was initially represented in application no. 10211/12 by Mr A. Ahmed, a lawyer practising in Munich, and subsequently in both applications by Mr I.-J. Tegebauer, a lawyer practising in Trier. The German Government (“the Government”) were represented by theirs Agents, Ms A. Wittling-Vogel, Mr H.-J. Behrens and Ms K. Behr, of the Federal Ministry of Justice and Consumer Protection. 3. The applicant alleged, in particular, that his “retrospective” preventive detention (nachträgliche Sicherungsverwahrung; see for the terminology also paragraphs 104-106 and 157 below) – at issue, ordered in the main proceedings, had violated Article 5 § 1 and Article 7 § 1 of the Convention. Relying on Article 6 § 1 of the Convention, he further complained that the domestic courts had not decided speedily on the lawfulness of his provisional preventive detention, and that Judge P. had been biased against him in the main proceedings concerning the order for his “retrospective” preventive detention. 4. The applications were allocated to the Fifth Section of the Court (Rule 52 § 1 of the Rules of Court). On 26 November 2013 the Government were given notice of application no. 10211/12. On 22 December 2014 the complaints concerning the order for the applicant’s subsequent preventive detention and the complaint about the partiality of Judge P. made in application no. 27505/14 were communicated to the Government, and the remainder of that application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. 5. On 2 February 2017 a Chamber of the Fifth Section composed of Erik Møse, President, Angelika Nußberger, Ganna Yudkivska, Faris Vehabović, Yonko Grozev, Síofra O’Leary and Mārtiņš Mits, judges, and Milan Blaško, Deputy Section Registrar, unanimously decided to join the applications. It struck part of the applications out of its list of cases following the Government’s unilateral declaration under Articles 5 and 7 § 1 of the Convention relating to the applicant’s preventive detention from 6 May 2011 to 20 June 2013, and declared the remainder of the applications admissible. It further held, unanimously, that there had been no violation of Article 5 § 1 of the Convention and no violation of Article 7 § 1 of the Convention on account of the applicant’s preventive detention from 20 June 2013 onwards. Moreover, it unanimously held that there had been no violation of Article 5 § 4 of the Convention on account of the duration of the proceedings for review of the applicant’s provisional preventive detention and no violation of Article 6 § 1 of the Convention on account of the alleged lack of impartiality of Judge P. in the main proceedings resulting in a new preventive detention order against the applicant. 6. On 15 March 2017 the applicant requested that the case be referred to the Grand Chamber in accordance with Article 43 of the Convention and Rule 73 of the Rules of Court. On 29 May 2017 the Panel of the Grand Chamber accepted that request. 7. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24 of the Rules of Court. At the first deliberations, Stéphanie Mourou-Vikström, substitute judge, replaced Işıl Karakaş, who was unable to take part in the further consideration of the case (Rule 24 § 3). 8. The applicant and the Government each filed a memorial on the merits (Rule 59 § 1). In addition, third-party comments were received from the European Prison Litigation Network, which had been granted leave by the President on 30 August 2017 to intervene in the written proceedings (Article 36 § 2 of the Convention and Rule 44 §§ 3 and 4). 9. A hearing took place in public in the Human Rights Building, Strasbourg, on 29 November 2017 (Rule 59 § 3). There appeared before the Court: (a) for the GovernmentMsA. Wittling-Vogel, Federal Ministry of Justice and Consumer Protection,MsK. Behr, Federal Ministry of Justice and ConsumerProtection, Agents,MrT. Giegerich, Professor of EU Law, Public International Law and Public Law, University of Saarland, Counsel,MsP. Viebig-Ehlert, Federal Ministry of Justice and Consumer Protection,MsK. Müller, Chair of EU Law, Public International Lawand Public Law, University of Saarland,MrB. Bösert, Federal Ministry of Justice and ConsumerProtection,MrC.-S. Haase, Federal Ministry of Justice and Consumer Protection,MsS. Bender, Bavarian Ministry of Justice,MrA. Stegmann, Bavarian Ministry of Justice, Advisers; (b) for the applicantMrI.-J. Tegebauer, lawyer,MrM. Mavany, Counsel,MsD. Thörnich, Adviser. The Court heard addresses by Mr Tegebauer, Mr Mavany and Mr Giegerich and their replies to questions put by judges. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 10. The applicant was born in 1978 and is currently detained in the centre for persons in preventive detention on the premises of Straubing Prison (hereinafter “the Straubing preventive detention centre”). A. Background to the case: the applicant’s conviction and the first order for his subsequent preventive detention 11. On 29 October 1999 the Regensburg Regional Court convicted the applicant of murder and, applying the criminal law relating to young offenders, sentenced him to ten years’ imprisonment. It found that in June 1997 the applicant, then aged nineteen, had strangled a woman who had been jogging on a forest path by use of considerable force with a cable, a tree branch and his hands, had partly undressed the dead or dying victim and had then masturbated. The court, having consulted two medical experts, found that the applicant had acted with full criminal responsibility when killing the woman for sexual gratification and in order to cover up his intended rape. The court noted that, despite indications to that effect, both experts had not wished to draw the conclusion that the applicant suffered from a sexual deviancy as the young applicant had made few statements on the motives for his offence. 12. On 12 July 2008 a new legislative provision, section 7(2) of the Juvenile Courts Act, entered into force. It authorised the ordering of subsequent preventive detention (see for the terminology also paragraphs 104-106 and 157 below) of persons convicted under the criminal law relating to young offenders (see paragraphs 54-57 below). 13. From 17 July 2008 onwards, after he had served his full prison sentence, the applicant was remanded in provisional preventive detention under Article 275a § 5 of the Code of Criminal Procedure (see paragraph 61 below). 14. On 22 June 2009 the Regensburg Regional Court, with Judge P. sitting on the bench, ordered the applicant’s subsequent preventive detention under section 7(2)(1) of the Juvenile Courts Act, read in conjunction with section 105(1) of the Juvenile Courts Act (see paragraphs 56 and 59 below). The court, having regard to the reports made by a criminological expert (Bo.) and a psychiatric expert (Ba.), found that the applicant continued to harbour violent sexual fantasies and that there was a high risk that he would again commit serious sexual offences, including murder for sexual gratification, if released. On 9 March 2010 the Federal Court of Justice dismissed the applicant’s appeal on points of law against the Regional Court’s judgment. 15. On 4 May 2011 the Federal Constitutional Court, in a leading judgment, allowed the applicant’s constitutional complaint. It quashed the Regional Court’s judgment of 22 June 2009 and the Federal Court of Justice’s judgment of 9 March 2010 and remitted the case to the Regional Court. It further found the order for the applicant’s provisional preventive detention – which had become devoid of purpose once the order for the applicant’s subsequent preventive detention in the main proceedings had become final – to be unconstitutional (file no. 2 BvR 2333/08 and no. 2 BvR 1152/10). The Federal Constitutional Court found that the impugned judgments and decisions had violated the applicant’s right to liberty and the constitutional protection of legitimate expectations guaranteed in a State governed by the rule of law (see in more detail paragraphs 68-75 below). B. The proceedings at issue in application no. 10211/12 concerning the applicant’s provisional preventive detention 1. Proceedings before the Regional Court 16. On 5 May 2011 the applicant requested that the Regensburg Regional Court order his immediate release. He claimed that following the Federal Constitutional Court’s judgment of 4 May 2011, which had quashed the judgment ordering his subsequent preventive detention, there was no longer any legal basis for his detention. 17. On 6 May 2011 the Regensburg Regional Court, allowing the Public Prosecutor’s request of 5 May 2011, again ordered the applicant’s provisional preventive detention under sections 7(4) and 105(1) of the Juvenile Courts Act, read in conjunction with Article 275a § 5, first sentence, of the Code of Criminal Procedure (see paragraphs 59 and 61 below). The court found that the applicant’s provisional preventive detention was necessary because there were weighty grounds for expecting that his subsequent preventive detention would be ordered under section 7(2)(1) of the Juvenile Courts Act, read in the light of the judgment of the Federal Constitutional Court of 4 May 2011. 18. By submissions dated 27 June 2011, received by the Regional Court on 29 June 2011, the applicant lodged an appeal against the Regional Court’s decision, for which he submitted further statements of grounds on 15, 19, 22, 25 and 26 July 2011. He claimed, in particular, that his provisional preventive detention was unlawful. 19. On 4 July 2011 the Regensburg Regional Court refused to amend its decision of 6 May 2011. 2. Proceedings before the Court of Appeal 20. On 16 August 2011 the Nuremberg Court of Appeal dismissed the applicant’s appeal as ill-founded. It had regard to: (i) a request lodged by the Nuremberg General Public Prosecutor on 20 July 2011 requesting the dismissal of the applicant’s appeal; (ii) the findings of fact made by the Regensburg Regional Court in its judgment of 22 June 2009; (iii) the findings of two medical experts in the proceedings leading to the judgment of 22 June 2009; (iv) the findings of two other experts in previous proceedings regarding the applicant’s mental condition and the level of danger that he posed; and (v) the new restrictive standards set by the Federal Constitutional Court in its judgment of 4 May 2011. 21. On 29 August 2011 the Nuremberg Court of Appeal dismissed the applicant’s complaint regarding a breach of his right to be heard and his objection to the decision of 16 August 2011. The decision was served on counsel for the applicant on 6 September 2011. 3. Proceedings before the Federal Constitutional Court 22. On 7 September 2011 the applicant lodged a constitutional complaint with the Federal Constitutional Court against the decision of the Regensburg Regional Court dated 6 May 2011, as confirmed by the Nuremberg Court of Appeal. He further requested that the execution of those decisions be stayed by way of an interim measure until the Federal Constitutional Court delivered its decision. The applicant claimed, in particular, that his right to a speedy decision, enshrined in his constitutional right to liberty, had not been respected in the proceedings concerning the review of his provisional preventive detention. 23. On 18 October 2011 the Federal Constitutional Court communicated the applicant’s constitutional complaint to the regional Government of Bavaria, to the President of the Federal Court of Justice and to the General Public Prosecutor at the latter court. 24. On 25 October 2011 the Federal Constitutional Court, in a reasoned decision, refused to stay the order for the applicant’s provisional preventive detention by way of an interim measure. 25. By submissions dated 1 January 2012 the applicant replied to the submissions of the regional Government of Bavaria, of the President of the Federal Court of Justice and of the General Public Prosecutor at the latter court dated 28, 24 and 25 November 2011 respectively. 26. On 22 May 2012 the Federal Constitutional Court, without giving reasons, declined to consider the applicant’s constitutional complaint (file no. 2 BvR 1952/11). The decision was served on counsel for the applicant on 30 May 2012. 4. Subsequent developments 27. On 17 November 2011 the applicant lodged a fresh request for judicial review of his provisional preventive detention. By a decision of 28 November 2011 the Regensburg Regional Court upheld the applicant’s provisional preventive detention as ordered on 6 May 2011. On 2 January 2012 the Nuremberg Court of Appeal dismissed the applicant’s appeal against that decision. C. The proceedings at issue in application no. 27505/14, concerning the main proceedings on the applicant’s subsequent preventive detention 1. Proceedings before the Regensburg Regional Court (a) Decision on the applicant’s motion for bias 28. In the resumed proceedings before the Regensburg Regional Court following the remittal of the case to it (see paragraph 15 above), the applicant lodged a motion against Judge P. for bias. The latter had been a member of the bench of the Regensburg Regional Court which had ordered the applicant’s subsequent preventive detention on 22 June 2009 (see paragraph 14 above). The applicant alleged that Judge P. had remarked to the applicant’s female defence counsel on 22 June 2009, immediately after the delivery of the Regional Court’s judgment ordering the applicant’s subsequent preventive detention, in reference to the applicant: “Be careful that after he is released, you don’t find him standing in front of your door waiting to thank you.” He claimed that the remark had been made in the course of a discussion in camera between the judges of the Regional Court and the applicant’s two lawyers concerning the applicant’s possible transfer to a psychiatric hospital following the Regional Court’s judgment. 29. In a comment of 13 December 2011 on the applicant’s motion for bias, Judge P. explained that he remembered having had a discussion about the applicant’s possible transfer to a psychiatric hospital at a later stage, after the delivery of the judgment. However, given the length of time that had elapsed, he neither recalled the precise contents of the discussion nor the exact context in which he had allegedly made the impugned remark. 30. On 2 January 2012 the Regensburg Regional Court dismissed the motion for bias lodged by the applicant. The court considered in particular that, even assuming that the applicant had established to the satisfaction of the court that Judge P. had made the remark in question, there were no objectively justified doubts as to P.’s impartiality as a result thereof. Even assuming that the applicant could reasonably consider the sense of the words “thank you” in the above context as meaning that the applicant could commit a violent offence, it had to be noted that the Regional Court, including Judge P., had just established that the applicant still suffered from fantasies of sexual violence and that there was at that time a high risk that he would again commit serious offences against the life and sexual self‑determination of others. Assuming that Judge P. had indeed made the remark in question, his “advice” had therefore constituted in substance nothing more than the application of the Regional Court’s said findings to a particular case. The remark had further been made in the context of a confidential exchange between the participants in the proceedings in the absence of the applicant. Judge P. could have expected that the applicant’s female counsel would interpret his remark in the above-mentioned manner within that context. 31. Furthermore, Judge P.’s remark had reflected his view as it had been on the day of the Regional Court’s judgment of 22 June 2009. It did not suggest in any way that Judge P. had not been ready to take an impartial decision in the present proceedings, more than two years after the impugned remark and following the conclusion of a new main hearing. The fact that Judge P. had previously dealt with the applicant’s case did not in itself render him biased. (b) The new order for the applicant’s subsequent preventive detention 32. On 3 August 2012 the Regensburg Regional Court, having held hearings over twenty-four days, again ordered the applicant’s subsequent preventive detention. 33. The Regional Court based its 164-page judgment on sections 7(2)(1) and 105(1) of the Juvenile Courts Act, read in conjunction with the Federal Constitutional Court’s judgment of 4 May 2011. It considered, firstly, that a comprehensive assessment of the applicant, his offence and, in addition, his development during the execution of the sentence relating to young offenders revealed that there was a high risk that the applicant, owing to specific circumstances relating to his person or his conduct, could commit the most serious types of violent crimes and sexual offences, similar to the one he had been found guilty of, if released. 34. The Regional Court found, secondly, that the applicant suffered from a mental disorder for the purposes of section 1(1) of the Therapy Detention Act (see paragraph 85 below), namely sexual sadism. Having regard to the case-law of the Federal Court of Justice and the Federal Constitutional Court, it considered that, whereas a mere “accentuation of the personality” was not sufficient to constitute a mental disorder within the meaning of the said Act, such disorder did not have to be so serious as to exclude or diminish the criminal responsibility of the person concerned for the purposes of Articles 20 and 21 of the Criminal Code (see paragraphs 82-83 and 88-89 below). Given that the sexual sadism from which the applicant suffered was of a serious nature and had substantially affected his development since adolescence, it amounted to a mental disorder within the meaning of the Therapy Detention Act. 35. The Regional Court based its view on the reports of two experienced external medical experts whom it had consulted, K. and F., who were professors and doctors for psychiatry and psychotherapy at two different university hospitals. One of the experts consulted, K., was firmly convinced that the applicant continued to suffer from sexual sadism while the other expert, F., formulated his findings more cautiously, stating that it was certain that the applicant had suffered from sexual sadism in 2005 and that this disorder could not be expected to have disappeared. 36. Having regard to the findings of these experts, as well as to those of several medical experts who had previously examined the applicant since his arrest following his offence, the Regional Court was satisfied that the applicant has had violent sexual fantasies involving the strangulation of women since the age of seventeen. He was suffering from a sexual preference disorder, namely sexual sadism, as described by the relevant tool for the classification of diseases, the International Statistical Classification of Diseases and Related Health Problems in its current version (ICD-10);[1] this disorder had caused, and been manifested in, his brutal offence, and still persisted. The court, having regard to the experts’ findings, observed that the applicant had hidden the sadistic motives behind his offence in the proceedings before the trial court in 1999, which, despite some indications of sexual deviance, had then interpreted the offence as an intended rape which had failed. The applicant, who had given diverging versions of the motive for his offence, had only admitted in 2005/2006, during his examination by a psychological and a psychiatric expert, that in his murder he had put into practice intensifying fantasies of exercising power over women by attacking their neck and by masturbating on their inanimate bodies. The applicant’s new statements concerning his fantasies were more reconcilable with the trial court’s findings as to the manner in which the offence had been carried out. 37. The court further observed that the therapy followed by the applicant up until 2007, in particular social therapy, which both experts K. and F. had considered as appropriate treatment for his condition, had been unsuccessful. Even though the applicant appeared not to refuse further therapy as a matter of principle, he was not currently undergoing any treatment. He had, in particular, opposed the prosecution’s request to the Regensburg Regional Court in 2010/2011 to transfer him to a psychiatric hospital under Article 67a §§ 2 and 1 of the Criminal Code (see paragraph 67 below) in order to treat his condition in a different setting. He had further refused meetings aimed at establishing a new individualised therapeutic programme with reference to the pending court proceedings. 2. Proceedings before the Federal Court of Justice 38. In an appeal on points of law against the Regional Court’s judgment of 3 August 2012, the applicant complained of the unlawfulness of his “retrospective” preventive detention and of the fact that the judgment had been delivered with the participation of a biased judge, P. 39. On 5 March 2013 the Federal Court of Justice dismissed the applicant’s appeal on points of law as ill-founded. 3. Proceedings before the Federal Constitutional Court 40. On 11 April 2013 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He complained, in particular, that the “retrospective” order for his preventive detention had infringed the prohibition on retrospective penalties under the Constitution and Article 7 § 1 of the Convention. Furthermore, that order had failed to comply with his constitutional right to liberty, with the protection of legitimate expectations in a State governed by the rule of law and with Article 5 § 1 of the Convention. He further argued that his constitutional right to a tribunal established by law had been violated because Judge P. had been biased against him. 41. On 5 December 2013 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint without giving reasons (file no. 2 BvR 813/13). D. Subsequent developments 42. The Regensburg Regional Court subsequently reviewed the necessity of the applicant’s preventive detention at regular intervals. It decided on 18 September 2014, 2 March 2016 and 6 April 2017 that the detention had to continue because the applicant’s mental disorder and consequent dangerousness persisted. Each of the court’s review decisions was based on a fresh report by a different psychiatric expert, all the experts consulted having diagnosed the applicant with sexual sadism. The applicant is currently still in preventive detention. E. The conditions of the applicant’s detention prior to and during the execution of the preventive detention order 43. During the execution of his ten-year prison term (up until July 2008) the applicant was, in particular, detained in the social-therapeutic department for sexual offenders of Bayreuth Prison from 2001 to 2007, where he underwent social therapy. As the applicant failed to pursue the therapy with the requisite sincerity and motivation, the core issue of his deviant sexual fantasies could not be sufficiently addressed and the therapy was not completed successfully. In 2007 he was transferred to the social therapy for sexual offenders department of Straubing Prison, where a fresh attempt to treat him also failed owing to the applicant’s lack of motivation vis-à-vis the different therapies provided. 44. During the execution of his first preventive detention order, issued on 22 June 2009, the applicant had objected to the prosecution’s request to transfer him to a psychiatric hospital under Article 67a §§ 2 and 1 of the Criminal Code (see paragraph 67 below) in order to consolidate further his rehabilitation by undergoing treatment in that hospital. Moreover, he had turned down proposals for a further therapeutic programme in Straubing Prison. 45. On 7 May 2011, following the quashing of the first preventive detention order and the new order for the applicant’s provisional preventive detention, he was transferred from the wing for persons in preventive detention in Straubing Prison to a wing for persons in detention on remand. As a consequence, the applicant lost the privileges reserved for persons in preventive detention. In particular, he was no longer able to undergo any kind of therapy. On 13 September 2011 he was transferred back to, and once again detained in, the preventive detention wing of Straubing Prison until 20 June 2013, where he was offered social therapy. He rejected the proposal. 46. Since 20 June 2013 the applicant has been detained in the newly built Straubing preventive detention centre. That institution, which is situated in a separated fenced-off compound on the premises of Straubing Prison and can house up to 84 detainees, has more staff than Straubing Prison, namely one psychiatrist, seven psychologists, one general practitioner, four nurses, seven social workers, one lawyer, one teacher, one prison inspector, forty-four general prison staff members and four administrative staff members, providing for the detainees. Inmates can stay outside their cells, which nowadays measure 15 m² (compared to some 10 m² previously) and now include a kitchen unit and a separate bathroom, between 6 a.m. and 10.30 p.m. 47. In the Straubing preventive detention centre, inmates are provided with individualised medical and therapeutic treatment by specialised staff in accordance with an individual treatment plan. The treatment options have been considerably increased as compared to those proposed under the previous preventive detention regime in Straubing Prison. The applicant initially refused all types of therapeutic provision at that centre, including one-to-one or group social therapy, participation in an intensive treatment programme for sexual offenders, and therapy administered by an external psychiatrist. He took up one-to-one psychotherapy only after the period covered by the proceedings here at issue, from 10 June 2015 until 30 June 2017, with a psychologist from the preventive detention centre. II. RELEVANT DOMESTIC LAW AND PRACTICE A. General legal framework of the preventive detention regime 48. In accordance with a long-standing legal tradition, the German Criminal Code distinguishes between penalties (Strafen) and so-called measures of correction and prevention (Maßregeln der Besserung und Sicherung) to deal with unlawful acts. In this twin-track system of sanctions, penalties (see Articles 38 et seq. of the Criminal Code) mainly consist of prison sentences and fines, which are fixed in accordance with the defendant’s guilt (Article 46 § 1 of the Criminal Code). Measures of correction and prevention (see Articles 61 et seq. of the Criminal Code) consist mainly of placement in a psychiatric hospital (Article 63 of the Criminal Code), in a detoxification facility (Article 64 of the Criminal Code) or in preventive detention (Articles 66 et seq. of the Criminal Code). The purpose of these measures is to rehabilitate dangerous offenders and to protect the public from them. They may be imposed on criminally liable offenders in addition to their punishment (cf. Articles 63 et seq.). Such measures must, however, be proportionate to the seriousness of the offences committed, or expected to be committed, by the defendants, as well as to their dangerousness (Article 62 of the Criminal Code). 49. Preventive detention can be ordered under German law against persons who have committed a criminal offence while acting with full criminal responsibility or with diminished criminal responsibility (see Articles 66 et seq. of the Criminal Code). Initially, a preventive detention order could only be made by a criminal court at the time of the defendant’s conviction, additionally to a term of imprisonment. Under Article 66 of the Criminal Code, this required, in particular, that the criminal court had convicted the defendant of an offence of a certain gravity (as specified in the law) and that, owing to his propensity to commit serious offences, the defendant presented a danger to the general public. Under the law in force prior to 31 January 1998 (Article 67d § 1 of the Criminal Code), the first period of preventive detention executed against a defendant could not exceed ten years. Following a change in the law, that maximum duration was abolished with immediate effect (see, for further details, M. v. Germany, no. 19359/04, §§ 49-54, ECHR 2009). 50. In 2004, a new Article 66b was inserted into the Criminal Code authorising the imposition of subsequent preventive detention on adult offenders. Preventive detention could from then on be imposed also on adult offenders against whom no preventive detention had been ordered by the trial court having found them guilty of certain serious offences. Such orders could be made separately and subsequently, after the trial court’s judgment, if, before the end of enforcement of a term of imprisonment, evidence came to light which indicated that the detainee concerned posed a significant danger to the general public. By a law which entered into force on 1 January 2011, the legislature substantially restricted the conditions under which preventive detention could be ordered subsequently (see for more details B. v. Germany, no. 61272/09, §§ 33-35, 19 April 2012). 51. In 2008 section 7(2) of the Juvenile Courts Act – the provision at issue in the present case – entered into force, authorising the imposition of subsequent preventive detention also on young offenders (see in more detail paragraphs 54-58 below). 52. In addition to the above-mentioned more recent reforms of the preventive detention regime in 1998, 2004 and 2008, further legislative amendments were made following this Court’s judgment in the case of M. v. Germany (cited above) of 17 December 2009 and the Federal Constitutional Court’s judgment of 4 May 2011 (see paragraphs 68-75 below). These were brought about, in particular, by the adoption of the Reform of Preventive Detention Act (Gesetz zur Neuordnung des Rechts der Sicherungsverwahrung) of 22 December 2010, which included the new Therapy Detention Act (see paragraphs 85-89 below) and entered into force on 1 January 2011, and by the Preventive Detention (Distinction) Act, which entered into force on 1 June 2013 (see paragraphs 78 et seq. below). 53. As regards the procedure for the execution of measures of correction and prevention in general, Article 463 § 1 of the Code of Criminal Procedure stipulates that the provisions on the execution of terms of imprisonment shall apply mutatis mutandis on the execution of measures of correction and prevention, unless provided otherwise. B. Preventive detention orders against juveniles and young adults 1. The order for a young offender’s subsequent preventive detention 54. Initially, the Juvenile Courts Act did not authorise orders for preventive detention in respect of juveniles (persons aged between fourteen and eighteen) or young adults aged between eighteen and twenty-one (see section 1[2] of the Juvenile Courts Act) to whom the criminal law relating to young offenders was applied. Since 29 July 2004, following a change to section 106 of the Juvenile Court Act, subsequent preventive detention could be ordered against young adults aged between eighteen and twenty-one who were convicted under the ordinary criminal law for adult offenders. 55. Under the Act on the introduction of subsequent preventive detention for convictions under the criminal law relating to young offenders (Gesetz zur Einführung der nachträglichen Sicherungsverwahrung bei Verurteilungen nach Jugendstrafrecht) of 8 July 2008, which came into force on 12 July 2008, section 7(2) was inserted into the Juvenile Courts Act. 56. The wording of section 7(2) of the Juvenile Courts Act, as in force up until 31 May 2013, provided: “If, following the imposition of a sentence applicable to young offenders of at least seven years for ... a felony 1. against life, physical integrity or sexual self-determination, or 2. ... through which the victim either suffered grave mental or physical damage or was exposed to the risk of suffering such damage, there is evidence prior to the end of the sentence ... indicating that the convicted person poses a significant danger to the general public, the court may order preventive detention subsequently if a comprehensive assessment of the convicted person, his offence or offences and, on a supplementary basis, his development during the serving of the sentence ... determines that it is very likely that he will again commit offences of the nature described above.” 57. The Federal Government, when submitting the draft Act on the introduction of subsequent preventive detention for convictions under the criminal law relating to young offenders to Parliament (see Publication of the Federal Parliament (Bundestagsdrucksache) no. 16/6562, p. 1), had argued that recent examples had shown that, like adult offenders, young offenders sentenced under the Juvenile Courts Act could, in exceptional cases, prove to be very dangerous to others even after having served a term of imprisonment of several years. Where young offenders could not be placed in a psychiatric hospital, there was, at that time, no legal basis for remanding them in detention as necessary for the protection of the public. 58. Under the Preventive Detention (Distinction) Act, which entered into force on 1 June 2013 (see, for further details, paragraphs 76 et seq. below), the legislature substantially restricted the conditions under which preventive detention could be ordered subsequently against young offenders. 59. Section 105(1) of the Juvenile Courts Act provides that the court shall apply certain provisions of that Act relating to juveniles, particularly section 7 thereof, if a young adult aged between eighteen and twenty-one commits an offence and if, in particular, a comprehensive assessment of the perpetrator’s personality, taking into account his living environment, has shown that the perpetrator only had the moral and intellectual development of a juvenile at the time of his offence. 60. Section 43(2) of the Juvenile Courts Act provides that in criminal proceedings against young offenders, an expert qualified to examine juveniles should, if possible, be charged with carrying out necessary examinations of the offender. 2. Provisional preventive detention and judicial review thereof 61. While proceedings concerning a young offender’s subsequent preventive detention are pending, a court may order the person’s provisional preventive detention (until the relevant judgment on subsequent preventive detention becomes final) if there are weighty reasons to expect that that person’s subsequent preventive detention will be ordered (see section 7(4) of the Juvenile Courts Act, read in conjunction with Article 275a § 5, first sentence, of the Code of Criminal Procedure, in the wording in force at the relevant time under the applicable transitional provision). 62. Under Articles 304 § 1 and 305 of the Code of Criminal Procedure there is a possibility (which is not subject to any time-limit) of lodging an appeal with the Court of Appeal against a provisional preventive detention order from a Regional Court; under Article 310 of the Code of Criminal Procedure no further appeal lies before the ordinary courts against the Court of Appeal’s decision. 63. However, a detainee may lodge a fresh request for judicial review of his detention with the competent Regional Court in accordance with Articles 117 et seq. of the Code of Criminal Procedure read in conjunction with Article 275a § 5, fourth sentence, of the Code of Criminal Procedure following the Court of Appeal’s decision. A further appeal lies against the Regional Court’s judicial review decision (Articles 304 et seq. of the Code of Criminal Procedure) with the Court of Appeal. 3. Judicial review of subsequent preventive detention and duration thereof 64. Under section 7(4) of the Juvenile Courts Act, in the wording in force up until 31 May 2013, read in conjunction with Article 67e of the Criminal Code, the courts were obliged to examine at yearly intervals whether a particular preventive detention order under section 7(2) of the Juvenile Courts Act might be terminated or suspended and a measure of probation applied. In its judgment of 4 May 2011 (see paragraphs 68-75 below), the Federal Constitutional Court ordered that this time-limit be reduced from one year to six months. 65. Since 1 June 2013, under Article 67d § 2 of the Criminal Code, read in conjunction with section 316f(2) and (3) of the Introductory Act to the Criminal Code, courts have been able to order subsequent preventive detention to continue only if the person concerned suffers from a mental disorder and if, owing to specific circumstances relating to his personality or his conduct, there is a high risk that he will commit the most serious types of violent crimes or sexual offences as a result of that disorder. If these criteria are not met, the court will suspend on probation further enforcement of the detention order and order the supervision of the person’s conduct. 66. Since 1 June 2013, Article 67d § 2 of the Criminal Code has additionally provided that the court will also suspend on probation the further enforcement of the detention order if it finds that the continuation of the detention would be disproportionate because the person concerned had not been provided, within a maximum six-month time-limit fixed by the court, with sufficient care within the meaning of Article 66c § 1 sub‑paragraph 1 of the Criminal Code (see paragraphs 79‑80 below). If sufficient care has not been provided, it is for the court to fix that time-limit when it reviews the continuation of the detention and to specify the measures which have to be offered. Suspension of the detention automatically entails supervision of the conduct of the person concerned. 4. Transfer for implementation of a different measure of correction and prevention 67. Article 67a of the Criminal Code contains provisions on the transfer of detainees for the implementation of a measure of correction and prevention different from the measure originally ordered in the judgment against them. Under Article 67a § 2, read in conjunction with § 1, a court may subsequently transfer a person in respect of whom preventive detention has been ordered to a psychiatric hospital or detoxification facility if the person’s reintegration into society can thereby be better promoted. C. The Federal Constitutional Court’s judgment of 4 May 2011 and the ensuing amendments to the German preventive detention regime 1. The Federal Constitutional Court’s leading judgment on preventive detention of 4 May 2011 68. On 4 May 2011 the Federal Constitutional Court delivered a leading judgment on preventive detention following constitutional complaints both of detainees remanded in preventive detention which had been prolonged subsequently beyond the former ten-year maximum period and of detainees – including the applicant in the present case – remanded in subsequently ordered preventive detention under Article 66b § 2 of the Criminal Code or section 7 (2) of the Juvenile Courts Act (file nos. 2 BvR 2365/09, 2 BvR 740/10, 2 BvR 2333/08, 2 BvR 1152/10 and 2 BvR 571/10). 69. The Federal Constitutional Court’s judgment was adopted after this Court had, on 17 December 2009, delivered a leading judgment in the case of M. v. Germany (cited above) in which it had held that the subsequent extension of Mr M.’s preventive detention beyond the former statutory maximum period of ten years applicable at the time of that applicant’s offence and conviction had breached both Article 5 § 1 and Article 7 § 1 of the Convention. 70. The Federal Constitutional Court, reversing its previous position adopted notably in its judgment of 5 February 2004 (file no. 2 BvR 2029/01), held that all provisions concerned by the constitutional complaints, both on the subsequent prolongation of preventive detention and on the subsequent ordering of such detention, were incompatible with the Basic Law as they failed to comply with the constitutional protection of legitimate expectations guaranteed in a State governed by the rule of law, read in conjunction with the constitutional right to liberty. 71. The Federal Constitutional Court further held that all the relevant provisions of the Criminal Code on the imposition and duration of preventive detention were incompatible with the fundamental right to liberty of persons in preventive detention. It found that those provisions did not satisfy the constitutional requirement of differentiating between preventive detention and imprisonment (Abstandsgebot). 72. The Federal Constitutional Court held that all provisions declared incompatible with the Basic Law remained applicable until the entry into force of new legislation, and until 31 May 2013 at the latest, under additional restrictive conditions. In relation to detainees whose preventive detention had been prolonged subsequently, or ordered subsequently under Article 66b § 2 of the Criminal Code or section 7(2) of the Juvenile Courts Act, the courts responsible for the execution of sentences had to examine without delay whether there was a high risk that the persons concerned, owing to specific circumstances relating to their personality or their conduct, would commit the most serious types of violent crimes or sexual offences and if, additionally, they suffered from a mental disorder within the meaning of section 1(1) of the newly enacted Therapy Detention Act (see paragraph 85 below). As regards the notion of mental disorder, the Federal Constitutional Court explicitly referred to the interpretation of the notion of persons of unsound mind in Article 5 § 1 sub-paragraph (e) of the Convention made in this Court’s case-law (see §§ 138 and 143-56 of the Federal Constitutional Court’s judgment). If the above preconditions were not met, those detainees had to be released no later than 31 December 2011. The other provisions on the imposition and duration of preventive detention could only be applied in the transitional period subject to a strict review of proportionality; as a general rule, proportionality was respected where there was a danger of the person concerned committing serious crimes of violence or sexual offences if released. 73. In its reasoning, the Federal Constitutional Court relied on the interpretation of Article 5 and Article 7 of the Convention made by this Court in its judgment in the case of M. v. Germany (cited above; see §§ 137 et seq. of the Federal Constitutional Court’s judgment). It stressed, in particular, that the constitutional requirement to differentiate between preventive detention and imprisonment and the principles laid down in Article 7 of the Convention required individualised and intensified therapeutic provision and care for the persons concerned. In line with the Court’s findings in the case of M. v. Germany (cited above, § 129), it was necessary to provide a high level of care by a team of multi-disciplinary staff and to provide the detainees with individualised therapy if the standard therapies available in the institution had no prospects of success (see paragraph 113 of the Federal Constitutional Court’s judgment). 74. The Federal Constitutional Court confirmed its constant case-law that the absolute ban on the retrospective application of criminal law under Article 103 § 2 of the Basic Law did not cover preventive detention. The latter was a measure of correction and prevention, which was not aimed at punishing criminal guilt, but was a purely preventive measure aimed at protecting the public from a dangerous offender (see paragraphs 100-101 and 141-42 of the Federal Constitutional Court’s judgment). The Federal Constitutional Court noted that the European Court of Human Rights had considered preventive detention to be a penalty within the meaning of Article 7 § 1 of the Convention (ibid., paragraphs 102 and 140). It considered that it was not necessary schematically to align the meaning of the constitutional notion of penalty with that under the Convention. Recourse should rather be had to the value judgments (Wertungen) under the Convention in a result-oriented manner in order to prevent breaches of public international law (ibid., paragraphs 91 and 141 et seq.). 75. Taking account of the constitutional right to protection of legitimate expectations in a State governed by the rule of law and the value judgments of Article 5 of the Convention, the prolongation of preventive detention beyond the former ten-year maximum period or the subsequent ordering of such detention was only constitutional in practice if, inter alia, the requirements of Article 5 § 1 (e) were met (ibid., paragraphs 143 and 151‑56). The Federal Constitutional Court expressly referred in that context to the case-law of the European Court of Human Rights, according to which the detention of a person as a mental-health patient would only be lawful for the purposes of Article 5 § 1 (e) of the Convention if effected in a hospital, clinic or other appropriate institution (ibid., paragraph 155). 2. Implementation in practice of the Federal Constitutional Court’s judgment 76. Having regard to the requirements laid down in the Federal Constitutional Court’s judgment of 4 May 2011, the legislature adopted the Act on the establishment, at federal level, of a difference between the provisions on preventive detention and those on prison sentences (Gesetz zur bundesrechtlichen Umsetzung des Abstandsgebotes im Recht der Sicherungsverwahrung, hereinafter the “Preventive Detention (Distinction) Act”) of 5 December 2012, which entered into force on 1 June 2013. 77. At the same time, the different German Länder adopted Acts reforming the implementation of preventive detention. These Acts contain detailed rules on the execution in practice of the new preventive detention regime, which should focus on therapeutic provision for detainees and be adapted to the general living conditions as far as possible (see, for the Land of Bavaria, where the applicant is being detained, the Bavarian Preventive Detention Execution Act – Bayerisches Sicherungsverwahrungsvollzugs-gesetz / Gesetz über den Vollzug der Sicherungsverwahrung und der Therapieunterbringung –, and in particular sections 2 and 3 thereof, of 22 May 2013, which entered into force on 1 June 2013; the Act contains a total of 105 sections). 78. Under the new legislation (see, in particular, Article 66c of the Criminal Code), persons in preventive detention must now be detained in institutions offering them not only conditions more assimilated to general living conditions but, in particular, individual and intensive care for enhancing their willingness to participate in psychiatric, psychotherapeutic or socio-therapeutic treatment tailored to their needs. 79. Article 66c of the Criminal Code, on the manner in which preventive detention and prior terms of imprisonment are implemented, in so far as relevant, provides as follows: “1. Detainees held in preventive detention are placed in institutions which (1) offer the detainee, on the basis of a comprehensive examination and a personal treatment plan which is to be updated regularly, care that is (a) individual and intensive as well as suitable for raising and furthering his readiness to participate, in particular psychiatric, psychotherapeutic or socio-therapeutic treatment, tailored to the detainee’s needs if standardised offers do not have prospects of success, and (b) aimed at reducing the threat he poses to the public to such an extent that the measure may be suspended and probation granted or that it may be terminated as soon as possible, (2) guarantee a form of detention that (a) places as small a burden as possible on the detainee, complies with the requirements for care under sub-paragraph 1 and is assimilated to general living conditions in so far as security concerns allow, and (b) is separate from detainees serving terms of imprisonment in special buildings or departments in so far as the treatment within the meaning of sub-paragraph 1 does not exceptionally require otherwise, and (3) in order to attain the aim laid down in sub-paragraph 1 (b) (a) grant relaxations in the enforcement of the detention and make preparations for release unless there are compelling reasons not to do so, in particular if there are concrete facts constituting a risk that the detainee might abscond or abuse the relaxations in order to commit considerable offences, and (b) allow for follow-up care once at liberty in close cooperation with public or private institutions.” 80. Under a transitional provision, section 316f(3) of the Introductory Act to the Criminal Code, the new Article 66c of the Criminal Code is also applicable to persons who committed the offence(s) with regard to which preventive detention was ordered prior to 1 June 2013. 81. In accordance with this judicial and legislative framework, new centres for persons in preventive detention have been constructed, equipped and staffed in the Länder in order to comply with the requirements of establishing a difference between the execution of preventive detention and that of prison sentences and of focusing on the therapy of the detainees. According to the material provided by the Government, which has not been contested by the applicant, twelve new preventive detention centres were built and/or equipped in the different Länder, at total costs exceeding 200 million euros. The detainees are placed in cells (measuring between 14 and 25 m²) which are larger than prison cells and usually include a kitchen unit and a separate bathroom, and may move more freely within the respective centres, which comprise further rooms and outside spaces for therapy, occupational and recreational activities. They may wear their own clothes. In the centres, detainees are, in particular, provided with individualised comprehensive and interdisciplinary therapies, which have been extended as compared to the previous preventive detention regime, including psychotherapeutic conversations aimed at motivating detainees to pursue therapy, offence-specific therapies for violent and sexual offenders and social training courses, either as an individual or a group measure and partly involving external therapists if necessary. New therapeutic staff members were employed in all centres to provide the requisite therapies. D. Criminal liability and detention of persons with mental disorders 1. Provisions on criminal liability 82. Article 20 of the Criminal Code contains rules on lack of criminal responsibility owing to mental disorders. It provides that a person who, upon commission of an act, is incapable of appreciating the wrongfulness of the act or of acting in accordance with such appreciation owing to a pathological mental disorder, a profound consciousness disorder, a mental deficiency or any other serious mental abnormality, acts without guilt. 83. Article 21 of the Criminal Code governs diminished criminal responsibility. It provides that punishment may be mitigated if the perpetrator’s capacity to appreciate the wrongfulness of the act or to act in accordance with such appreciation was substantially diminished upon commission of the act owing to one of the reasons indicated in Article 20 of the Criminal Code. 2. Detention of persons with mental disorders (a) Detention under Article 63 of the Criminal Code 84. The detention of mentally ill persons is provided for, primarily, in the Criminal Code as a measure of correction and prevention if the detention is ordered in relation to an unlawful act committed by the person concerned. Article 63 of the Criminal Code provides that if someone commits an unlawful act without criminal responsibility (Article 20) or with diminished criminal responsibility (Article 21), the court will order his placement – without any maximum duration – in a psychiatric hospital. A comprehensive assessment of the defendant and his acts must have revealed that, as a result of his condition, he is likely to commit further serious unlawful acts and that he is therefore a danger to the general public. (b) Detention under the Therapy Detention Act 85. Furthermore, on 1 January 2011, following the Court’s judgment in the case of M. v. Germany (cited above), the Act on Therapy and Detention of Mentally Disturbed Violent Offenders (Gesetz zur Therapierung und Unterbringung psychisch gestörter Gewalttäter, the “Therapy Detention Act”) entered into force. Under sections 1(1) and 4 of that Act, the civil sections of the Regional Court may order the placement in a suitable institution of persons who may no longer be kept in preventive detention in view of the prohibition on subsequent aggravations in relation to preventive detention. Such detention for therapy may be ordered if the person concerned has been found guilty by final judgment of certain serious offences for which preventive detention may be ordered under Article 66 § 3 of the Criminal Code. The person must also be suffering from a mental disorder as a result of which it is highly likely that, if at liberty, the person would considerably impair the life, physical integrity, personal liberty or sexual self-determination of another person. The person’s detention must be deemed necessary for the protection of the public. 86. Under section 2(1) of the Therapy Detention Act, institutions suitable for “therapy detention” are only those that can guarantee, by means of medical care and therapeutic provision, adequate treatment of the mental disorder of the person concerned on the basis of an individualised treatment plan aimed at keeping the confinement to a minimum duration (point [1]). Furthermore, the institutions concerned must allow detention to be effected in the least burdensome manner possible for the detainee, taking into account therapeutic aspects and the interests of public security (point [2]). They must be separated, geographically and organisationally, from institutions in which terms of imprisonment are enforced (point [3]). Under section 2(2) of the Therapy Detention Act, as in force since 1 June 2013, institutions within the meaning of Article 66c § 1 of the Criminal Code are also suitable for therapy detention if they comply with the requirements of section 2(1) points (1) and (2) of that Act. 87. The Federal Constitutional Court interpreted the Therapy Detention Act restrictively, holding that detention under that Act was only possible under the same restrictive conditions under which preventive detention could be ordered or prolonged subsequently (see that court’s decision of 11 July 2013, file nos. 2 BvR 2302/11 and 2 BvR 1279/12, summarised in the case of Bergmann v. Germany, no. 23279/14, §§ 75-76, 7 January 2016; and paragraph 72 above). Detention under that Act only rarely occurred in practice. 88. As for the interpretation of the notion of “mental disorder” in section 1(1) of the Therapy Detention Act, the Federal Constitutional Court found that in view of the standards flowing from Article 5 § 1 (e) of the Convention, that notion did not require that the disorder was so serious as to diminish or exclude the criminal responsibility of the person concerned for the purposes of Articles 20 and 21 of the Criminal Code (see file no. 2 BvR 1516/11, decision of 15 September 2011, paragraphs 35-36; and file nos. 2 BvR 2302/11 and 2 BvR 1279/12, cited above). 89. According to the Federal Constitutional Court, specific disorders affecting a person’s personality, conduct, sexual preference and control of impulses were covered by the notion of “mental disorder” in section 1(1) of the Therapy Detention Act. This notion therefore was not limited to mental illnesses which could be treated clinically, but could extend also to dissocial personality disorders of sufficient severity (see file no. 2 BvR 1516/11, cited above, paragraphs 35-40). In line with this Court’s case-law relating to Article 5 § 1 (e) (the court referred, in particular, to Kronfeldner v. Germany, no. 21906/09, 19 January 2012, and B. v. Germany, cited above) the Federal Constitutional Court found that the detention of a person for being of unsound mind could be justified provided that the detention was effected in an appropriate psychiatric institution, which, in turn, required the mental disorder to be of corresponding intensity (see file nos. 2 BvR 2302/11 and 2 BvR 1279/12, cited above). (c) Detention under public safety legislation of the Länder 90. Under the Länder legislation relating to public safety and risk prevention, such as the Bavarian Act on the placement in an institution of, and care for, mentally ill persons (Bavarian (Mentally Ill Persons’) Placement Act – Gesetz über die Unterbringung psychisch Kranker und deren Betreuung) of 5 April 1992, the civil courts may order a person’s placement in a psychiatric hospital at the request of the authorities of a town or county if the person concerned is mentally ill or suffers from a mental disorder resulting from an intellectual impairment or addiction and thereby poses a severe threat to public security and order (see sections 1(1), 5 and 7(3) of the Act, read in conjunction with sections 312 point 4 and 313(3) of the Act on proceedings in family matters and matters of non-contentious jurisdiction – Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit). Such an order may only be executed if no measure under Article 63 of the Criminal Code has been taken (section 1(2) of the said Act). E. Statistic information 91. According to statistical material submitted by the Government, which was not contested by the applicant, on 10 May 2010, when the judgment in the case of M. v. Germany (cited above) became final, 102 persons were in subsequently prolonged preventive detention. On 31 March 2017 a total of 51,129 persons were serving a prison sentence in the whole German territory (with a population of some 81 million), and 591 persons were in preventive detention. 41 of the 591 persons in preventive detention were in subsequently ordered or prolonged preventive detention. 92. As regards the number of persons against whom long terms of imprisonment and preventive detention orders are being executed, according to the Council of Europe Annual Penal Statistics (SPACE I) for 2015, in Germany 2,471 persons were serving prison terms of 10 years or more, whereas 7,603 (figure available for 2014 only) were doing so in France, 9,747 in Italy, 12,012 in Spain and 16,511 in the United Kingdom (see document PC-CP (2016) 6, pp. 87-88, table 7; and SPACE I for 2014, document PC-CP (2015) 7, p. 90, table 7). In addition, 521 persons were under security measures or preventive detention orders in Germany and 540 in Italy (see SPACE I for 2015, document PC-CP (2016) 6, p. 78, table 5.2). III. RELEVANT INTERNATIONAL LAW MATERIAL 1. United Nations Human Rights Committee 93. The United Nations Human Rights Committee, in its Concluding observations on the sixth periodic report of Germany, adopted by the Committee at its 106th session (15 October - 2 November 2012, CCPR/C/DEU/CO/6), found the following: “14. While welcoming the steps taken by the State party to revise its legislation and practice on post-conviction preventive detention in accordance with human rights standards and noting information that a draft bill addressing the issue is currently before parliament, the Committee is concerned about the number of persons who are still detained in such detention in the State party. It is also concerned about the duration of such a detention in some cases as well as the fact that conditions of detention have not been in line with human rights requirements in the past (arts. 9 and 10). The State party should take necessary measures to use the post-conviction preventive detention as a measure of last resort and create detention conditions for detainees, which are distinct from the treatment of convicted prisoners serving their sentence and only aimed at their rehabilitation and reintegration into society. The State party should include in the Bill under consideration, all legal guarantees to preserve the rights of those detained, including periodic psychological assessment of their situation which can result in their release or the shortening of the period of their detention.” 2. United Nations Committee against Torture (CAT) 94. The United Nations Committee against Torture, in its Concluding observations on the fifth periodic report of Germany adopted at the forty‑seventh session (31 October - 25 November 2011) (CAT/C/DEU/CO/5 of 12 December 2011) found as follows: “Preventive detention 17. The Committee takes note of the judgement of the Federal Constitutional Court of 4 May 2011 which has considered that all provisions of the Criminal Code and the Youth Courts Act on the imposition and duration of preventive detention are unconstitutional and welcomes the fact that the federal and Länder authorities have already started to implement the ruling. The Committee nonetheless notes with regret the information that more than 500 persons remain in preventive detention, some of them having been in preventive detention for more than twenty years (arts. 2 and 11). The Committee urges the State party to: (a) Adapt and amend its laws on the basis of the Federal Constitutional Court’s decision by 31 March 2013, as requested by the Court, in order to minimize the risks arising from preventive detention; and (b) Take all necessary actions, in the meantime, to comply with the institutional measures requested by the Court’s decision, in particular with regard to release of persons in preventive detention, reduction of its duration and the imposition thereof, and take into account the provisions of the United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules) when devising the measures alternative to preventive detention.” 3. European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) 95. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) found as follows in its Report to the German Government on the visit to Germany carried out from 20 November to 2 December 2005 (CPT/Inf (2007) 18, 18 April 2007) in respect of the unit for preventive detention in Berlin-Tegel Prison: “(...) 99. Even for the other inmates who were apparently coping better with their situation, the lack of staff engagement on the unit was not justifiable. (...) The delegation gained the distinct impression that the staff themselves were not clear as to how to approach their work with these inmates. As well as empowering inmates to take charge of their lives in custody, there is a need for on-going support to deal with indefinite detention, as well as to address the legacy of serious past histories of aberrant behaviour and apparent psychological problems. Psychological care and support appeared to be seriously inadequate; the CPT recommends that immediate steps be taken to remedy this shortcoming. 100. The difficult question of how to implement in practice a humane and coherent policy regarding the treatment of persons placed in Sicherungsverwahrung needs to be addressed as a matter of urgency at the highest level. Working with this group of inmates is bound to be one of the hardest challenges facing prison staff. Due to the potentially indefinite stay for the small (but growing) number of inmates held under Sicherungsverwahrung, there needs to be a particularly clear vision of the objectives in this unit and of how those objectives can be realistically achieved. The approach requires a high level of care involving a team of multi-disciplinary staff, intensive work with inmates on an individual basis (via promptly-prepared individualised plans), within a coherent framework for progression towards release, which should be a real option. The system should also allow for the maintenance of family contacts, when appropriate. The CPT recommends that the German authorities institute an immediate review of the approach to Sicherungsverwahrung at Tegel Prison and, if appropriate, in other establishments in Germany accommodating persons subject to Sicherungsverwahrung, in the light of the above remarks.” 96. Subsequently, the CPT found as follows in its Report to the German Government on the visit to Germany carried out from 25 November to 3 December 2013 (CPT/Inf (2014) 23, 24 July 2014): “A. Preventive detention (Sicherungsverwahrung) (...) 10. The purpose of the 2013 visit was to review the implementation in practice of the new system of preventive detention and the action taken by the relevant authorities in this connection since the 2010 visit. To this end, the delegation focused on the situation of persons in preventive detention in Baden-Württemberg and Rhineland-Palatinate (...). (...) 14. As regards conditions of detention, the delegation was particularly impressed by the newly constructed unit for preventive detention at Diez Prison. All accommodation rooms were spacious (measuring some 18 m² including the sanitary annexe) and well-equipped (including ... a toilet, shower and kitchenette). (...) In addition, there were various association and activity rooms (including a fitness room). It is also praiseworthy that, during the day, inmates could move freely within the building in which the unit is located and could go outside into the open air or to another detention unit whenever they wished (throughout the day and, except at weekends, also in the evening). 15. At Freiburg Prison, material conditions were generally good in the new unit for preventive detention. All the rooms were in a very good state of repair, spacious (some 14 m² without counting the sanitary annexe) and well-equipped (...). On every floor, there was a large living/dining room (measuring some 50 m² and equipped with tables, chairs, a sofa, a television set, a refrigerator and plants), a kitchen and a laundry room. In addition, the detention unit comprised a large workshop, a computer room and an art therapy room. That said, it is somewhat regrettable that the entire detention unit remained rather prison-like and that the freedom of movement of inmates within the establishment and access to the outdoor exercise yard was more restricted than at Diez Prison (in particular, at weekends). (...) In this regard, the CPT wishes to recall that, according to the relevant legal provisions, persons in preventive detention are in principle entitled to have unrestricted and unlimited access to the open air outside night lock-up periods. (...) (...) 17. As regards the regime and treatment measures (Behandlungsmassnahmen), the delegation was informed that, at Freiburg Prison, all inmates were offered work, individual counselling sessions with a psychologist and a range of recreational activities. In addition, a number of group therapies were provided, including a treatment programme for sex offenders (10 participants, duration 1½ years), social competence training (6 participants, duration six to seven months), art therapy (5 participants), drama and movement therapy (5 participants) and a programme for control of addiction (9 participants). Out of a total of 58 inmates, 48 participated in individual counselling sessions, including 13 who were also involved in one of the above-mentioned group therapies and eleven who were involved in two treatment groups. Seven inmates refused to take part in any therapy, two were new arrivals and not assigned yet to a treatment programme and one was apparently not capable of participating in any treatment programme (due to brain damage). The team of specialised staff comprised three psychologists and four social workers (one on each floor). The delegation was informed that, based on the staff/inmate ratio applied in sociotherapeutic institutions, the unit for preventive detention would need at least six full-time psychologists. (...) The head of the psychology service indicated that, due to the limited staff resources, it was not possible to organise individual therapy on a weekly basis (...), that it was not possible to reach out to those who were lacking any motivation and were unwilling to engage themselves in therapeutic measures and that it was not possible to organise milieu therapy in an effective manner. 18. The situation appeared to be even more worrying at Diez Prison. Although a comprehensive and detailed concept for the treatment of persons in preventive detention had been prepared by the prison administration of Rhineland-Palatinate in May 2013, the visit revealed a striking discrepancy between theory and practice. Out of 40 inmates, only 24 were receiving individual therapy and only eight were participating in group therapy. It is also regrettable that no efforts had thus far been made by the prison administration to organise group sessions for art, music or drama therapy which may be particularly beneficial for those inmates who are unwilling or unable to participate in any other group therapy programme. Moreover, the delegation noted that attempts had to a large extent failed to motivate inmates to take part in weekly meetings in the living unit, which were organised by staff as part of the ongoing milieu therapy. 19. The CPT acknowledges that the implementation of the new legislation governing preventive detention was still at an early stage and that it may take some time until all the planned measures are fully implemented in practice. However, there can be no doubt that the existing resources for treatment measures for persons in preventive detention in Baden-Württemberg and Rhineland-Palatinate were insufficient to meet the requirements of the relevant federal and Länder legislation, namely to have a system of programmes focused on therapeutic needs and promoting individual liberty and motivation (therapiegerichtet, freiheitsorientiert and motivationsfördernd). (...) The Committee recommends that the relevant authorities of Baden-Württemberg and Rhineland-Palatinate redouble their efforts to further develop individual and group treatment measures which are offered to persons in preventive detention at Freiburg and Diez Prisons and increase the number of specialist staff accordingly. 20. The delegation gained a favourable impression of the therapeutic measures offered to inmates at (...) the socio-therapeutic department at Diez Prison, which accommodated inmates in preventive detention who were considered to be suitable to undergo an intensive therapeutic programme for violent and/or sex offenders. (...)” 4. Commissioner for Human Rights of the Council of Europe 97. The Commissioner for Human Rights of the Council of Europe, Mr Thomas Hammarberg, stated the following in his report of 11 July 2007 on his visit to Germany from 9 to 11 and 15 to 20 October 2006 (see CommDH(2007)14) regarding the issue of what he referred to as “secured custody”, executed in accordance with the provisions applicable at that time: “8.2. Secured custody 201. Under German penal law, a criminal who has committed a serious crime such as homicide or rape may be kept under secured custody (Sicherungsverwahrung) after having served his/her prison term. A decision on secured custody can only be taken by the court who issued the original verdict on the basis of expert medical advice. The term of custody is indefinite but subject to court review (...). The possibility of imposing secured custody can either be included in the original verdict itself or it can be ordered shortly before the prison term expires. 202. The purpose of keeping a person under secured custody has no punitive element but aims at protecting the general public from crimes the perpetrator concerned is likely to commit. Accordingly, prison conditions are adapted to the specific situation and unnecessary restrictions are not applied. 203. During the visit, the Commissioner discussed the issue of secured custody with several Länder authorities, judges and medical experts. The Commissioner is aware of the public pressure judges and medical experts are exposed to when they make decisions regarding the release of a person who might recommit a serious crime. It is impossible to predict with full certainty whether a person will actually re-offend. Psychiatrists regularly assess the behaviour of an imprisoned person who might act differently outside the prison. In addition, it is difficult to foresee all the conditions that wait for the offender outside the prison. 204. The Commissioner calls for an extremely considerate application of secured custody. Alternative measures should also be considered before recourse to secured custody is taken. The Commissioner is concerned about the rising number of people deprived of their liberty under secured custody. He encourages the German authorities to commission independent studies on the implementation of secured custody in order to evaluate the measure in terms of protecting the general public and its impact on the detained individual. 205. The Commissioner is also aware of proposed amendments which would allow the ex post imposition of secured custody on juvenile offenders in extreme cases. The Commissioner urges the German authorities to reconsider such proposals due to their extreme consequences on juvenile offenders. Alternative measures should be applied in the case of juvenile offenders whenever possible. 206. Furthermore, the Commissioner was informed that persons kept under secured custody regularly experience a loss of future perspective and give up on themselves. This would appear to call for the provision of psychological or psychiatric care. The medical opinion may occasionally be divided on the efficacy of care provided to persons kept under secured custody, yet the possibility of their eventual rehabilitation and release should not be excluded. Accordingly, people held under secured custody should receive adequate medical treatment or other care that addresses their specific situation.” IV. RELEVANT COMPARATIVE LAW 98. As regards the measures chosen by other Contracting Parties to the Convention to protect the public from convicted offenders of unsound mind who risk committing further serious offences on their release, the comparative law material before the Court shows the following. Out of the thirty-two Contracting States examined, ten allow for the application of protective measures entailing deprivation of liberty after a criminal sentence. Half of these States allow for such measures to be ordered after the imposition of the sentence. Such measures are imposed by a judicial body. In most of these States, these measures are not classified as “penalties” under domestic law. Facilities for enforcing such measures are quite varied, ranging from special detention facilities to psychiatric hospitals, psychiatric wards in prison and regular detention centres. THE LAW I. THE SCOPE OF THE CASE BEFORE THE GRAND CHAMBER 99. The Grand Chamber would observe at the outset that the Chamber struck the present applications out of the Court’s list of cases in so far as the applicant had complained under Articles 5 § 1 and 7 § 1 of the Convention about his preventive detention from 6 May 2011 until 20 June 2013, executed in Straubing Prison. The strike-out decision was taken under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration by the respondent Government acknowledging a breach of the Convention in this regard because the applicant had not been detained in a suitable institution for mental health patients during the said period (see Ilnseher v. Germany, nos. 10211/12 and 27505/14, §§ 45-58, 2 February 2017; and paragraph 5 above). 100. The Court reiterates that the content and scope of the “case” referred to the Grand Chamber are delimited by the Chamber’s decision on admissibility (see, inter alia, K. and T. v. Finland [GC], no. 25702/94, §§ 140-141, ECHR 2001‑VII; Göç v. Turkey [GC], no. 36590/97, §§ 36-37, ECHR 2002‑V; and Simeonovi v. Bulgaria [GC], no. 21980/04, § 83, 12 May 2017). This means that the Grand Chamber cannot examine those parts of the application which have been declared inadmissible by the Chamber (see Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, § 61, ECHR 2007‑I; Al-Dulimi and Montana Management Inc. v. Switzerland [GC], no. 5809/08, § 78, 21 June 2016; and Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 84, 24 January 2017). 101. The Court holds that the same considerations apply where, as in the present case, parts of the applications, instead of having been declared inadmissible, were struck off the Court’s list of cases prior to the Chamber’s decision on admissibility in this respect. Those parts of the applications are consequently not part of the “case” referred to the Grand Chamber. 102. The Court would note that this is in no way contested by the parties. The applicant relied on the Government’s unilateral declaration in support of his submissions (see paragraph 114 below). The Government, who declared that they considered themselves bound by their unilateral declaration and the Chamber’s strike-out decision, had paid, on 28 April 2017, the compensation stipulated in the unilateral declaration to the applicant, who accepted the payment. The Court does not, therefore, discern any basis for a decision under Article 37 § 2 of the Convention either. 103. Consequently, the compliance with Articles 5 § 1 and 7 § 1 of the Convention of the applicant’s preventive detention from 6 May 2011 until 20 June 2013 in Straubing Prison does not fall within the Grand Chamber’s jurisdiction. II. TERMINOLOGY 104. In the light of the findings on the scope of the case before the Court, the Grand Chamber would further observe the following. In the Court’s judgments to date, the German term “nachträgliche Sicherungsverwahrung”, that is, preventive detention which was imposed on a convicted offender in a judgment adopted separately from, and after a previous criminal conviction, has been translated into English by “retrospective” or “retrospectively ordered” preventive detention, and into French by “détention de sûreté rétroactive” or “détention de sûreté ordonnée rétroactivement”. 105. The Grand Chamber agrees that there is a retrospective element in the order of such preventive detention in that it is a precondition for the order that the person concerned was sentenced in a previous judgment to a term of imprisonment for a serious criminal offence. However, there is equally a strong prospective element in that the order must be based on an ex nunc assessment that it is likely that the person concerned would commit new offences in the future. That prospective element is further reinforced after the changes made by the Federal Constitutional Court and the German legislator to the preventive detention regime applicable to persons such as the applicant. In line with these changes, it is required, in addition, that at the time of the order the persons concerned suffer from a mental disorder, as a result of which they are dangerous to the public. 106. In view of these strong prospective elements, the Grand Chamber considers that the concept of “nachträgliche Sicherungsverwahrung” is more adequately translated into English by “subsequent preventive detention”, and into French by “détention de sûreté subséquente”, thus denominating a measure which is imposed at a later point in time compared to the conviction and which, while having regard to the last conviction of the person concerned, is essentially based on a mental disorder existing at the time when the measure is imposed and rendering the person dangerous. III. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 107. The applicant complained that his “retrospectively” ordered preventive detention executed on the basis of the Regensburg Regional Court’s 3 August 2012 judgment from 20 June 2013 onwards in the Straubing preventive detention centre had been in breach of his right to liberty, as provided in Article 5 § 1 of the Convention. That provision, 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: (a) the lawful detention of a person after conviction by a competent court; ... (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; ... (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; ...” 108. The Government contested that argument. A. The Chamber judgment 109. The Chamber, having regard to the Court’s considerations in the leading case of Bergmann v. Germany (cited above, §§ 77-134), found that the applicant’s preventive detention from 20 June 2013 onwards had complied with Article 5 § 1. It considered that the applicant’s detention had been justified under sub-paragraph (e) of Article 5 § 1. The applicant, who suffered from sexual sadism and was likely to commit another murder if released, was a person of unsound mind for the purposes of this provision. Furthermore, since his transfer from prison to the Straubing preventive detention centre on 20 June 2013, the applicant’s detention had been lawful as it had then been executed in a suitable institution for mental health patients. B. The parties’ submissions 1. The applicant 110. The applicant submitted that his preventive detention based on the Regional Court’s judgment of 3 August 2012 had violated Article 5 § 1 of the Convention also from 20 June 2013 onwards, as had his preventive detention preceding that date. 111. The applicant claimed that his detention had been justified under none of the sub-paragraphs (a) to (f) of Article 5 § 1. In particular, it could not be justified under Article 5 § 1 (e) as detention of a person “of unsound mind” as interpreted in the Court’s case-law (he referred to Winterwerp v. the Netherlands, 24 October 1979, § 39, Series A no. 33, and Stanev v. Bulgaria [GC], no. 36760/06, § 145, ECHR 2012). First of all, he had not reliably been shown to be of unsound mind, as required by sections 7(2)(1) and 105 of the Juvenile Courts Act, read in conjunction with the Federal Constitutional Court’s judgment of 4 May 2011 (see paragraphs 56, 59 and 72 above). Half of the experts who had examined him since 1999, including expert F. who had been consulted in the proceedings at issue, had not found that he suffered from a mental disorder, and in particular from sexual sadism, so that a true mental disorder had not been proven. Moreover, contrary to what was desirable under section 43(2) of the Juvenile Courts Act, none of the experts was qualified to examine young people. 112. Secondly, a mental disorder under section 1 of the Therapy Detention Act, which had been established by the domestic courts only, might be less restrictive than the notion of persons of unsound mind in Article 5 § 1 (e) (the applicant referred to the case of Glien v. Germany, no. 7345/12, § 87, 28 November 2013). Therefore, it had not been established that he was of unsound mind, that is to say suffering from a mental disorder warranting compulsory confinement. 113. Thirdly, the applicant accepted that under domestic law (Article 67e of the Criminal Code: see paragraph 64 above), the validity of his continued confinement depended upon the persistence of a mental disorder. 114. Moreover, the applicant argued that his detention as a mental-health patient had not been lawful within the meaning of Article 5 § 1 (e). He argued that the Government had acknowledged in their unilateral declaration that the Regensburg Regional Court’s judgment of 3 August 2012 had been unlawful. In the applicant’s view, this could not be cured at a later stage by merely transferring him to the new preventive detention centre. Without a new judgment ordering his preventive detention, there had been no legal basis for his confinement also after 20 June 2013. 115. In the applicant’s submission, his preventive detention from 20 June 2013 onwards was also unlawful for another reason, namely that it had not been effected in an appropriate institution for mental-health patients, as required by the Court’s case-law (the applicant referred, in particular, to Glien, cited above, § 75). The new Straubing preventive detention centre to which he had been transferred on 20 June 2013 was not an appropriate institution for the detention of persons of unsound mind as it lacked an appropriate medical and therapeutic environment. Only five persons, including the applicant, out of a total of 57 inmates in the Straubing preventive detention centre were being detained as mental health patients. Therefore, he was being detained in a prison environment rather than in a psychiatric setting. 2. The Government 116. In the Government’s view, the applicant’s preventive detention from 20 June 2013 onwards had complied with Article 5 § 1. It had been justified under sub-paragraph (e) of Article 5 § 1 as detention of a person of unsound mind. 117. The Government explained that in its leading judgment of 4 May 2011, the Federal Constitutional Court had endeavoured to adapt the standards of the Constitution to the requirements of Article 5 § 1 (and also Article 7 § 1) of the Convention as elaborated by the Court in the case of M. v. Germany (cited above). The Federal Constitutional Court had expressly held that subsequent preventive detention could henceforth only be ordered if the requirements of Article 5 § 1 (e) had been met (see paragraphs 72 and 75 above). 118. In the Government’s submission, the conditions laid down in the Court’s case-law for detaining the applicant as a person of unsound mind (the Government referred to Bergmann, cited above, § 96) were satisfied. In the main proceedings, the applicant had been found by the Regional Court, which had consulted two renowned external psychiatric experts, to suffer from a true mental disorder, namely a serious form of sexual sadism, at the relevant time, that is to say when the subsequent preventive detention order had been issued. That persisting disorder warranted compulsory confinement as there was a high risk that he would commit the most serious types of violent crimes or sexual offences if released. 119. As had been confirmed in the case of Glien (cited above, § 84), the applicant could be considered as a person of unsound mind for the purposes of Article 5 § 1 (e) despite the fact that he had not suffered from a condition which excluded or diminished his criminal responsibility at the time when he committed his offence. 120. Moreover, the applicant’s detention as a person of unsound mind had been lawful for the purposes of Article 5 § 1 (e) since 20 June 2013. It had a sufficiently precise legal basis, namely sections 7(2) and 105(1) of the Juvenile Courts Act, read in conjunction with the Federal Constitutional Court’s judgment of 4 May 2011. Furthermore, the applicant had been detained in an appropriate institution for mental health patients from 20 June 2013 onwards. 121. The Government stressed in that regard that the Regensburg Regional Court had not ordered the applicant’s detention in an inappropriate institution on 3 August 2012, even though the applicant had initially been detained in prison. On the contrary, in line with the Court’s judgment in the case of M. v. Germany (cited above) and the judgment of the Federal Constitutional Court of 4 May 2011, the applicant was to be detained in a suitable institution (as soon as possible). This could not, however, be put into practice until 20 June 2013 as the new preventive detention centre was still under construction. Some time had been necessary to adapt the conditions of preventive detention to the requirements of the Convention. From 20 June 2013 onwards, the applicant had been detained in a suitable institution and the breach of Article 5 § 1, as acknowledged by the Government in its unilateral declaration during the period from 6 May 2011 until 20 June 2013, had then ended, without the Regional Court having to issue a new judgment. 122. In line with the reformed legal framework for preventive detention on federal and Länder levels (in particular, Article 66 (c) of the Criminal Code and the relevant Bavarian Preventive Detention Execution Act, see paragraphs 77-80 above), the therapeutic treatment available to persons with mental disorders detained in the preventive detention centres, while being adapted to the fact that they had been criminally liable for their offences, was similar to that available to patients in a closed psychiatric hospital. The focus of the new overall concept of preventive detention now lay on the individualised medical and therapeutic treatment of the detainees. The statistical material available (see paragraph 91 above) showed that many of the detainees whose preventive detention had been prolonged or ordered subsequently had been released since the M. v. Germany judgment had become final. It was thus clear that only some of the detainees concerned had been considered as persons of unsound mind and remained in detention and that there could be no question of all the preventive detainees concerned being classified as suffering from a true mental disorder. 123. In the Straubing preventive detention centre, which, for practical purposes, had been built on the premises of Straubing prison but was entirely separate from the prison in terms of – substantially improved – material conditions and therapeutic provision by many new specialised staff members, the applicant had accordingly been provided with intensive care, based on an individualised treatment concept, and comprehensive therapy. The Government further stressed that while only a small number of inmates in the preventive detention centre had been sexual sadists, most of the inmates had suffered from personality disorders and each of them had been provided with the individualised treatment appropriate to his specific disorder. C. The third party’s submissions 124. The European Prison Litigation Network (EPLN) submitted that the Chamber’s interpretation of the notion of “persons of unsound mind” within the meaning of sub-paragraph (e) of Article 5 § 1 in the case of Bergmann and in the present application so as to cover persons in preventive detention amounted to depriving these persons of their Convention rights. The interpretation of that term was too broad and imprecise. The EPLN noted that according to the Federal Constitutional Court, the notion of mental disorder under German law also covered non-pathological disorders. However, the term persons of unsound mind, or aliéné in the French text, designated persons who were at least in a severe pathological state and whose capacity for assessing the wrongfulness of their acts was non-existent or at least diminished. Moreover, in order to be convicted, the persons concerned had to have been criminally liable at the time of their offence, which was incompatible with the subsequent finding that these persons were of unsound mind. 125. The EPLN took the view that in the Bergmann and Ilnseher cases the Chamber had failed to protect the persons concerned from arbitrariness as it had not prevented the notion of persons “of unsound mind” from being assimilated and confused with the dangerousness of the persons concerned. This served to detain these persons by means of a circumvention of the Convention rights as interpreted in the case of M. v. Germany. D. The Grand Chamber’s assessment 1. Recapitulation of the relevant principles (a) Grounds for deprivation of liberty 126. The Court reiterates that sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds for deprivation of liberty, and no deprivation of liberty will be lawful unless it falls within one of those grounds (see Del Río Prada v. Spain [GC], no. 42750/09, § 123, ECHR 2013 and the references therein). The applicability of one ground does not necessarily preclude that of another; detention may, depending on the circumstances, be justified under more than one sub-paragraph (see Kharin v. Russia, no. 37345/03, § 31, 3 February 2011 and the references therein). Only a narrow interpretation of the exhaustive list of permissible grounds for deprivation of liberty is consistent with the aim of Article 5, namely to ensure that no one is arbitrarily deprived of his liberty (see, among many others, Winterwerp, cited above, § 37, and Shimovolos v. Russia, no. 30194/09, § 51, 21 June 2011). 127. As regards the justification of a person’s detention under sub‑ paragraph (e) of Article 5 § 1, the Court reiterates that the term “persons of unsound mind” in that provision has to be given an autonomous meaning (cf. Glien, cited above, §§ 78 et seq.). It does not lend itself to precise definition since its meaning is continually evolving as research in psychiatry progresses (see Winterwerp, cited above, § 37, and Rakevich v. Russia, no. 58973/00, § 26, 28 October 2003). An individual cannot be deprived of his liberty as being of “unsound mind” unless the following three minimum conditions are satisfied: firstly, he must reliably be shown to be of unsound mind, that is, a true mental disorder must be established before a competent authority on the basis of objective medical expertise; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; thirdly, the validity of continued confinement depends upon the persistence of such a disorder (see Winterwerp, cited above, § 39; Stanev, cited above, § 145; and Bergmann, cited above, § 96). 128. In deciding whether an individual should be detained as a person “of unsound mind”, the national authorities are to be recognised as having a certain discretion, since it is in the first place for the national authorities to evaluate the evidence adduced before them in a particular case; the Court’s task is to review under the Convention the decisions of those authorities (see Winterwerp, cited above, § 40, and S. v. Germany, no. 3300/10, § 81, 28 June 2012). 129. As regards the first condition for a person to be deprived of his liberty as being of “unsound mind”, namely that a true mental disorder must have been established before a competent authority on the basis of objective medical expertise, the Court recalls that, despite the fact that the national authorities have a certain discretion in particular on the merits of clinical diagnoses (see H.L. v. the United Kingdom, no. 45508/99, § 98, ECHR 2004‑IX), the permissible grounds for deprivation of liberty listed in Article 5 § 1 are to be interpreted narrowly. A mental condition has to be of a certain severity in order to be considered as a “true” mental disorder for the purposes of sub-paragraph (e) of Article 5 § 1 as it has to be so serious as to necessitate treatment in an institution for mental health patients (cf. Glien, cited above, §§ 82-85, and Petschulies v. Germany, no. 6281/13, § 76, 2 June 2016). 130. As for the requirements to be met by an “objective medical expertise”, the Court considers in general that the national authorities are better placed than itself to evaluate the qualifications of the medical expert in question (see, mutatis mutandis, Sabeva v. Bulgaria, no. 44290/07, § 58, 10 June 2010; Biziuk v. Poland (no. 2), no. 24580/06, § 47, 17 January 2012; and Ruiz Rivera v. Switzerland, no. 8300/06, § 59, 18 February 2014). However, in certain specific cases, it has considered it necessary for the medical experts in question to have a specific qualification, and has in particular required the assessment to be carried out by a psychiatric expert where the person confined as being “of unsound mind” had no history of mental disorders (see C.B. v. Romania, no. 21207/03, § 56, 20 April 2010; Ťupa v. the Czech Republic, no. 39822/07, § 47, 26 May 2011; Ruiz Rivera, cited above, § 59; and Vogt v. Switzerland (dec.), no. 45553/06, § 36, 3 June 2014) as well as, sometimes, the assessment to be made by an external expert (see in this respect Ruiz Rivera, cited above, § 64). 131. Moreover, the objectivity of the medical expertise entails a requirement that it was sufficiently recent (cf. Varbanov v. Bulgaria, no. 31365/96, § 47, ECHR 2000‑X; Witek v. Poland, no. 13453/07, § 41, 21 December 2010; Ruiz Rivera, cited above, § 60; and W.P. v. Germany, no. 55594/13, § 49, 6 October 2016). The question whether the medical expertise was sufficiently recent depends on the specific circumstances of the case before it (see Aurnhammer v. Germany (dec.), no. 36356/10, § 35, 21 October 2014). 132. In order for the mental disorder to have been established before a competent authority, and particularly the domestic courts, the Court reiterates that it has stressed in the context of preventive detention of dangerous offenders that the domestic courts must sufficiently establish the relevant facts on which their decision to detain the person concerned is based with the help of adequate medical expert advice (see, in the context of Article 5 § 1 (a), H.W. v. Germany, no. 17167/11, §§ 107 and 113, 19 September 2013, and Klinkenbuß v. Germany, no. 53157/11, § 48, 25 February 2016; and, in the context of Article 5 § 1 (e), W.P. v. Germany, cited above, § 49). In the Court’s view, this requires the domestic authority to subject the expert advice before it to a strict scrutiny and reach its own decision on whether the person concerned suffered from a mental disorder with regard to the material before it. 133. As regards the second requirement for an individual to be deprived of his liberty as being of “unsound mind”, namely that the mental disorder must be of a kind or degree warranting compulsory confinement (see paragraph 127 above), the Court reiterates that a mental disorder may be considered as being of a degree warranting compulsory confinement if it is found that the confinement of the person concerned is necessary because the person needs therapy, medication or other clinical treatment to cure or alleviate his condition, but also where the person needs control and supervision to prevent him from, for example, causing harm to himself or other persons (see, for example, Hutchison Reid v. the United Kingdom, no. 50272/99, § 52, ECHR 2003‑IV; and Petschulies, cited above, § 61). 134. The relevant time at which a person must be reliably established to be of unsound mind, for the requirements of sub‑paragraph (e) of Article 5 § 1, is the date of the adoption of the measure depriving that person of his liberty as a result of that condition (cf. Luberti v. Italy, 23 February 1984, § 28, Series A no. 75; B. v. Germany, cited above, § 68; and Bergmann, cited above, § 98). However, as shown by the third minimum condition for the detention of a person for being of unsound mind to be justified, namely that the validity of continued confinement must depend on the persistence of the mental disorder (see paragraph 127 above), changes, if any, to the mental condition of the detainee following the adoption of the detention order must be taken into account. (b) “Lawful” detention “in accordance with a procedure prescribed by law” 135. 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 thereof (see, among many other authorities, Erkalo v. the Netherlands, 2 September 1998, § 52, Reports of Judgments and Decisions 1998‑VI; Baranowski v. Poland, no. 28358/95, § 50, ECHR 2000‑III; and Saadi v. the United Kingdom [GC], no. 13229/03, § 67, ECHR 2008). 136. Compliance with national law is not, however, sufficient in itself: Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness (see, among many other authorities, Winterwerp, cited above, §§ 37 and 45; Saadi, cited above, § 67; and Reiner v. Germany, no. 28527/08, § 83, 19 January 2012). 137. In order for the detention to be “lawful” and not arbitrary, the deprivation of liberty must be shown to have been necessary in the circumstances (see Varbanov, cited above, § 46; and Petschulies, cited above, § 64). The detention of an individual is such a serious measure that it is only justified where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest (see C.B. v. Romania, cited above, § 48; Karamanof v. Greece, no. 46372/09, § 42, 26 July 2011; Stanev, cited above, § 143; and V.K. v. Russia, no. 9139/08, § 30, 4 April 2017 and the references therein). 138. The “lawfulness” of detention further requires that there be some relationship between the grounds of permitted deprivation of liberty relied on and the place and conditions of detention. In principle, the “detention” of a person as a mental-health patient will only be “lawful” for the purposes of sub-paragraph (e) of Article 5 § 1 if effected in a hospital, clinic or other appropriate institution (see Hutchison Reid, cited above, § 49; Brand v. the Netherlands, no. 49902/99, § 62, 11 May 2004; Glien, cited above, § 75; and Bergmann, cited above, § 99, and the references therein). 139. The Court observes in this context that, as illustrated by the present case, the person’s conditions of detention, while being based on the same detention order, can change during the execution of the detention based on that order. 140. It observes that in the case of W.P. v. Germany (cited above, §§ 24 et seq.), the Court struck the application out of the list in respect of the alleged breaches of Article 5 § 1 (and Article 7 § 1) of the Convention in view of the Government’s unilateral declaration acknowledging breaches of these provisions in a first period of detention as a result of that applicant not having been detained in a suitable institution. As for a second period of detention, following Mr W.P.’s transfer to a different institution but still based on the same detention order, the Court found that Mr W.P.’s detention had complied with Article 5 § 1 (and Article 7 § 1) as he was detained in a suitable institution for mental health patients with the aim of treating his mental disorder during that second period. 141. The approach taken by the Court thus implies that the detention of a person of unsound mind on the basis of the same detention order may become lawful and thus comply with Article 5 § 1 once that person is transferred to a suitable institution. Under the above-mentioned interpretation of the term “lawfulness”, there is indeed an intrinsic link between the lawfulness of a deprivation of liberty and its conditions of execution. This stance is further comparable to the approach taken in the assessment of the compliance of conditions of detention with Article 3, where a change in the conditions of detention is also determinative for assessing compliance with the prohibition on degrading treatment (see, in particular, Muršić v. Croatia [GC], no. 7334/13, §§ 136 et seq., ECHR 2016). It follows that the relevant point in time, or period, for assessing whether a person was detained in a suitable institution for mental health patients is the period of detention at issue in the proceedings before this Court, and not the time when the detention order was made. 2. Application of these principles to the present case 142. The Court is called upon to determine whether, in the light of the above principles, the applicant’s preventive detention at issue both fell within one of the permissible grounds for deprivation of liberty under sub‑paragraphs (a) to (f) of Article 5 § 1 and was “lawful” for the purposes of that provision, and thus complied with Article 5 § 1. 143. The Court would clarify that the period at issue in the proceedings before the Grand Chamber started on 20 June 2013, when the applicant was transferred from Straubing Prison to the new Straubing preventive detention centre (see paragraph 46 above). As shown above (see paragraphs 99-103), the prior period from 6 May 2011 to 20 June 2013 does not fall within the Grand Chamber’s jurisdiction. The period ended on 18 September 2014, when a fresh decision ordering the continuation of the applicant’s preventive detention was adopted in periodical judicial review proceedings (see paragraph 42 above), which the applicant could contest separately before the domestic courts. (a) Grounds for deprivation of liberty 144. In examining whether the applicant’s detention could be justified under any of the sub-paragraphs (a) to (f) of Article 5 § 1, the Court observes at the outset that his preventive detention was ordered subsequently, in a separate judgment of 3 August 2012 adopted after the trial court’s judgment of 29 October 1999. Having regard to the Court’s well-established case-law (see M. v. Germany, cited above, §§ 96-101; Glien, cited above, § 107; and Bergmann, cited above, § 104, concerning subsequently prolonged preventive detention, as well as B. v. Germany, cited above, §§ 71-76, and S. v. Germany, cited above, §§ 84-90, concerning subsequently imposed preventive detention), his detention could not, therefore, be justified under sub-paragraph (a) of Article 5 § 1 as detention “after conviction” as there was no sufficient causal connection between the applicant’s conviction by the trial court – which did not comprise a preventive detention order – and his deprivation of liberty as a result of the preventive detention order imposed in 2012. 145. Likewise, the applicant’s preventive detention could not be justified under sub-paragraph (c) of Article 5 § 1 as being “reasonably considered necessary to prevent his committing an offence”. Under the Court’s well‑ established case-law, this ground of detention was not adapted to a policy of general prevention directed against an individual who presented a danger on account of his propensity to crime. It only afforded Contracting States a means of preventing sufficiently concrete and specific offences as regards, in particular, the time and place of their commission and their victims (see M. v. Germany, cited above, §§ 89 and 102, and the references therein, and Jendrowiak v. Germany, no. 30060/04, § 35, 14 April 2011), which did not cover potential further offences the applicant might commit. This is indeed uncontested between the parties. 146. The Court will therefore examine, as alleged by the Government and contested by the applicant, whether the applicant’s detention can be justified as detention of a person of unsound mind for the purposes of Article 5 § 1 (e). As pointed out above (see paragraphs 127 and 134), this requires, in the first place, that, at the relevant time of the decision ordering his preventive detention on 3 August 2012, the applicant was reliably shown to be of unsound mind, that is, a true mental disorder must have been established before a competent authority on the basis of objective medical expertise. 147. The Court observes that the Regional Court, which had consulted two external psychiatric experts, K. and F., was convinced that the applicant suffered from a sexual preference disorder, namely sexual sadism, as described by the relevant tool for the classification of diseases, the International Statistical Classification of Diseases and Related Health Problems in its current version (ICD-10). The court was satisfied that the applicant has had fantasies of sexual violence entailing attacks on the neck and the strangulation of women and masturbation on their inanimate bodies. That sexual sadism was of a serious nature and had affected the applicant’s development since his adolescence. The mental disorder had caused and been manifested in his brutal offence and still persisted. The applicant therefore suffered from a mental disorder for the purposes of section 1(1) of the Therapy Detention Act. It specified that under that Act, a mental disorder did not have to be so serious as to exclude or diminish the criminal responsibility of the person concerned (see paragraphs 32-37 above). 148. In determining whether the Regional Court can thereby be said to have established that the applicant suffered from a true mental disorder for the purposes of Article 5 § 1 (e) of the Convention, the Court notes that the applicant contested this, arguing that the domestic court’s interpretation of the term mental disorder might be wider than the term of unsound mind and that he did not suffer from a mental disorder (see paragraphs 111-112 above). The third party, for its part, argued that the term persons of unsound mind should be interpreted as covering only persons in a serious pathological state whose capacity for assessing the wrongfulness of their acts was excluded or at least diminished (see paragraph 124 above). 149. Having regard to the fact that the notion of persons of unsound mind must be given an autonomous meaning, it is not a requirement that the person concerned suffered from a condition which would be such as to exclude or diminish his criminal responsibility under domestic criminal law when committing an offence (see also Glien, cited above, §§ 83-84, and Petschulies, cited above, §§ 74-75). 150. The Court further refers to its previous findings, relied upon by the applicant, that it appears that the notion of “persons of unsound mind” (“aliéné” in the French version) in Article 5 § 1 (e) of the Convention might be more restrictive than the notion of “mental disorder” (“psychische Störung”) referred to in section 1(1) of the Therapy Detention Act (see Glien, cited above, §§ 87-88; Bergmann, cited above, § 113; and W.P. v. Germany, cited above, § 60). However, the Convention does not require that the notions used in domestic law, and in particular the notion of mental disorder for the purposes of section 1(1) of the Therapy Detention Act, be defined or interpreted in the same manner as terms used in the Convention. What is decisive, in the Court’s view, is whether the domestic courts, in the case before them, have established a disorder which can be said to amount to a true mental disorder as defined by this Court’s case-law. In this context, the Court again stresses the need to interpret the permissible grounds for deprivation of liberty narrowly (see paragraphs 126 and 129 above). 151. In the present case, the domestic courts, as detailed above, found the applicant to suffer from a form of sexual sadism which must be considered as being of a serious nature. The applicant’s condition necessitated comprehensive therapy, to be provided either in the preventive detention centre or in a psychiatric hospital (see paragraphs 32-37 above). The Court is therefore satisfied that the condition with which the applicant was diagnosed amounted to a true mental disorder for the purposes of Article 5 § 1 (e). 152. As for the requirement that the finding of a true mental disorder be based on objective medical expertise, the Court takes note of the applicant’s argument that a number of experts had not found him to suffer from a mental disorder and that the experts consulted in the proceedings at issue had not been qualified to examine young people (see paragraph 111 above). As shown above, it is in the first place for the domestic courts to evaluate the qualifications of the medical expert(s) they consult (see paragraph 130 above). In the proceedings at issue, the Regional Court consulted two experienced external psychiatric experts, K. and F., who, in sum, had both considered the applicant to suffer from sexual sadism (see paragraph 35 above). The court had further regard to the findings of several medical experts who had previously examined the applicant since his arrest before concluding that the applicant suffered from sexual sadism (see paragraph 36 above). The applicant, who was aged 33 at the time when the experts drew up their report, did not bring forward any specific elements capable of demonstrating that the experts consulted manifestly lacked the necessary qualification to assess his mental condition and dangerousness. The Court is therefore satisfied that the Regional Court’s finding, confirmed on appeal, was based on objective medical expertise. 153. As to whether the domestic courts “established” that the applicant suffered from a true mental disorder for the purposes of Article 5 § 1 (e), the Court notes that the Regensburg Regional Court, in the impugned judgment of 3 August 2012, thoroughly scrutinised the findings made in the reports of the two psychiatric experts it had consulted, as well as the findings of numerous medical experts who had previously examined the applicant since his arrest following his offence, and decided on that basis that the applicant suffered from sexual sadism (see paragraphs 34-36 above). 154. The Court does not overlook in this context the fact that the Regional Court concluded in the proceedings at issue in 2012 that the applicant suffered from this serious mental disorder, whereas the trial court had not considered that the applicant had suffered from a severe mental disorder and had therefore found that he had acted with full criminal responsibility when committing his offence in 1997. This does not, however, suffice to cast any doubt on the establishment of the facts by the domestic courts concerning the applicant’s mental condition in the circumstances of the proceedings at issue in the present case, i.e. starting from 20 June 2013 (paragraph 103 above). 155. In this connection, it must be noted, firstly, that the domestic courts have a certain discretion regarding the merits of clinical diagnoses. Moreover, in the applicant’s case, the Regional Court in fact addressed the evolution in the assessment of the applicant’s mental condition by the medical experts and the courts. Having regard to the material before it, the Regional Court found that the applicant had hidden the sadistic motives for his offence at his trial in 1999. The trial court, which had also consulted two medical experts, had nevertheless already discerned some indications that the young applicant suffered from a sexual deviation. It was only in 2005/2006 that the applicant had admitted to two experts his fantasies of sexual violence which he had put into practice with his murder. The Regional Court further explained that the applicant’s new statements concerning his fantasies were more reconcilable with the trial court’s findings as to the manner in which the offence had been carried out (see paragraph 36 above). 156. The Court would add in this context that the statistical material before it (see paragraph 91 above) shows that a considerable number of persons remanded in subsequently ordered or prolonged preventive detention have been released since the Court’s judgment in the case of M. v. Germany (cited above). This can be seen as indicating that an individual assessment of the mental condition of persons remanded in subsequently ordered preventive detention is carried out. 157. Furthermore, a person’s mental condition is liable to change over time. As shown above, in the context of Article 5 § 1 (e) it is only necessary to assess whether the person concerned is of unsound mind at the date of adoption of the measure depriving that person of his liberty (as opposed to the date of the commission of a previous offence, which, in any event, is not a precondition for detention under that sub-paragraph). Moreover, in determining whether the mental disorder is of a kind or degree warranting compulsory confinement, it is usually necessary to assess the danger a person poses to the public at the time of the order and in the future. In view of these essential prospective elements, the preventive detention ordered against the applicant can best be described as “subsequent” to his previous offence and conviction, despite the fact that in the assessment of his dangerousness regard should also be had to his history of offences, thus embracing a retrospective aspect (see also paragraphs 104-106 above). 158. The Court further considers that, as for the second condition for a person to be classified as “of unsound mind”, the Regional Court was justified in considering that the applicant’s mental disorder was of a kind or degree warranting compulsory confinement in view of the high risk, as established by that court, that the applicant, as a result of this disorder, would again commit another serious offence similar to the one he had been found guilty of, that is to say another murder for sexual gratification, if released. 159. Third, the validity of the applicant’s continued confinement depended upon the persistence of his mental disorder. In accordance with domestic law (Article 67d § 2 of the Criminal Code, read in conjunction with section 316(f)(2) and (3) of the Introductory Act to the Criminal Code, see paragraph 65 above), the domestic courts could order the continuation of his preventive detention in the subsequent periodical judicial review proceedings (see paragraphs 42 and 64 above) only if, and as long as, there was a high risk that he would reoffend as a result of that disorder if released. Nothing in the file indicates that this risk had ceased to exist during the period of time at issue in the present case. 160. The Court therefore concludes that the applicant was a person of unsound mind for the purposes of Article 5 § 1 (e). (b) “Lawful” detention “in accordance with a procedure prescribed by law” 161. As for the lawfulness of the applicant’s detention, the Court notes that the detention was ordered in a judgment of the Regional Court of 3 August 2012, and confirmed on appeal, under sections 7(2)(1) and 105(1) of the Juvenile Courts Act, read in conjunction with the Federal Constitutional Court’s judgment of 4 May 2011 (see paragraphs 56, 59 and 72 above). 162. The Court takes note of the applicant’s submission that the Regional Court’s judgment of 3 August 2012 was unlawful, as allegedly conceded by the Government in its unilateral declaration, and that there was thus no legal basis for his detention at issue. However, in their unilateral declaration the Government only acknowledged that the applicant had not been detained in a suitable institution for mental health patients in a period prior to the one at issue in the present case (see paragraph 99 above). This does not cast doubt upon the validity of the detention order as such and thus upon the compliance with domestic law of the applicant’s detention. 163. The Court observes in this regard that, as the Government convincingly explained, the Regional Court, in its judgment of 3 August 2012, had not ordered the applicant’s preventive detention in a particular institution but had only generally ordered his preventive detention. Under the principles established by the Federal Constitutional Court in its leading judgment (paragraphs 15 and 68-75, in particular 75 above), as applied by the Regional Court, this meant that the applicant was to be detained in a suitable institution. The applicant’s transfer, on 20 June 2013, to the preventive detention centre thus complied with the initial order made by the Regional Court, which remained a valid basis for the applicant’s detention. 164. The lawfulness of the applicant’s detention under Article 5 § 1 (e) further requires the detention to have been effected in an appropriate institution for mental-health patients. In line with the Court’s case-law (see paragraphs 138-141 above), the relevant point in time for the assessment of this question is the period of detention at issue, from 20 June 2013 until the next periodical judicial review decision on the continuation of the applicant’s preventive detention which was made on 18 September 2014, and not the moment when the detention order was made (here 3 August 2012). During the period from 20 June 2013 until 18 September 2014, the applicant was detained in the newly-established Straubing preventive detention centre. 165. The Court notes that the applicant did not contest that there had been a change in the medical and therapeutic care provided for him in that centre, compared to the conditions prevailing in Straubing Prison. The Court observes that, according to the material before it, a total of 71 members of staff are in charge of a maximum of 84 detainees in the Straubing preventive detention centre (see paragraph 46 above). In particular, one psychiatrist, seven psychologists, one physician and four nurses are entrusted with providing medical and therapeutic treatment. A broad range of treatment is provided for persons suffering from mental disorders, such as treatment programmes for violent or sexual offenders, individual therapy tailored to the detainee’s needs, group social therapy and individual social pedagogical support, if necessary involving external therapists. The applicant was offered, in particular one-to-one or group social therapy, an intensive treatment programme for sexual offenders and therapy administered by an external psychiatrist. 166. The Court takes note of the applicant’s argument that, despite these elements, the preventive detention centre was not an appropriate institution for mental health patients as the majority of the persons placed in the centre had not been found to suffer from a mental disorder. 167. The Court observes that, in accordance with the constitutional requirement of differentiating between preventive detention and imprisonment, all persons placed in preventive detention, irrespective of whether or not they are detained for suffering from a mental disorder, are now generally provided with substantially improved material conditions of detention compared to those in which they had previously been detained in separate prison wings (see paragraph 81 above). However, this does not warrant the conclusion that the medical and therapeutic provision in the preventive detention centre was not suitable for mental health patients such as the applicant. As mentioned above, the applicant is being provided with an individualised therapy programme tailored to his needs and his mental condition. It further takes note of the Government’s explanation that a large number of detainees in that centre suffer at least from personality disorders warranting treatment, and that all detainees are provided with individualised treatment tailored to their specific disorders. 168. In view of these factors, the Court is satisfied that the applicant was offered the therapeutic environment appropriate for a person remanded as a mental health patient and was thus detained in an institution suitable for the purposes of Article 5 § 1 (e). It would note in that context that the same conclusion as to the suitability of a new preventive detention centre for the detention of mental health patients had also been drawn, in particular, in respect of the applicant in the case of Bergmann (cited above, §§ 118-128). 169. Furthermore, in order for the detention to be “lawful” and not arbitrary, the deprivation of liberty must be shown to have been necessary in the circumstances (see paragraph 137 above). In the present case, as set out above (see paragraphs 33 and 158), the domestic courts found that there was a high risk that the applicant would commit another murder for sexual gratification if released and did not consider measures less severe than a deprivation of liberty to be sufficient to safeguard the individual and public interest. Given that in the circumstances of the instant case the domestic courts, with the help of expert advice, established a considerable danger for the individuals concerned of becoming the victims of one of the most serious offences punishable under the German Criminal Code, the Court is satisfied that the applicant’s deprivation of liberty had also been shown to have been necessary in the circumstances. (c) Conclusion 170. It follows that the applicant’s subsequently ordered preventive detention, in so far as it was executed as a result of the impugned judgment from 20 June 2013 until 18 September 2014 in the Straubing preventive detention centre, was justified under sub-paragraph (e) of Article 5 § 1 as the lawful detention of a person of unsound mind. 171. Accordingly, the Court finds that there has been no violation of Article 5 § 1 of the Convention in this respect. IV. ALLEGED VIOLATION OF ARTICLE 7 § 1 OF THE CONVENTION 172. The applicant further complained that his “retrospectively” ordered preventive detention, executed on the basis of the Regensburg Regional Court’s judgment of 3 August 2012 from 20 June 2013 onwards in the Straubing preventive detention centre, had also breached his right not to have a heavier penalty imposed than the one applicable at the time of his offence in June 1997. He relied on Article 7 § 1 of the Convention, which reads as follows: “1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.” 173. The Government contested that argument. A. The Chamber judgment 174. The Chamber found that its considerations under Article 7 § 1 in the case of Bergmann (cited above), which concerned preventive detention prolonged beyond a former statutory time-limit, also applied to the present case of preventive detention ordered “retrospectively” in a separate judgment. As in the Bergmann case, the Court found that where preventive detention was, and could only be, ordered or extended to treat a mental disorder in a suitable institution, the punitive element of preventive detention, and its connection with the applicant’s criminal conviction, was erased to such an extent that the measure was no longer a penalty within the meaning of Article 7 § 1. The applicant’s preventive detention could therefore no longer be classified as a penalty. Consequently, there had been no violation of Article 7 § 1. B. The parties’ submissions 1. The applicant 175. The applicant took the view that his preventive detention served as from 20 June 2013 in the Straubing preventive detention centre had breached Article 7 § 1 of the Convention. 176. The applicant submitted that his preventive detention had been ordered “retrospectively”. At the time of the commission of his offence in June 1997, the Juvenile Courts Act had not yet authorised preventive detention orders in respect of young offenders and consequently, no preventive detention order had been made in the judgment convicting him in 1999. It was only on 12 July 2008 that Article 7 § 2 of the Juvenile Courts Act, which authorised “retrospective” preventive detention orders against young offenders, entered into force (see paragraphs 54-57 above), on which the preventive detention order of 3 August 2012 against him was based. 177. Furthermore, the applicant argued that his preventive detention had to be classified as a penalty. In the applicant’s view, the material point in time for assessing whether a measure imposed on a person in a judgment constituted a penalty for the purposes of Article 7 § 1 was the date of the delivery of the judgment ordering the measure. At the time of the delivery of the judgment ordering his preventive detention on 3 August 2012, which was then executed in Straubing Prison, that detention had constituted a penalty, as had been acknowledged by the Government in their unilateral declaration. The judgment of 3 August 2012 remained in breach of the Convention, and the preventive detention order made therein was unlawful also following his transfer to the new preventive detention centre. He argued that the unlawfulness of the order could not be remedied at a later stage, irrespective of whether the modalities of execution of his preventive detention in that centre had changed to such an extent that such preventive detention could no longer be classified as a penalty. The judgment therefore had to be quashed and his case be remitted for a new trial. 178. Referring to the criteria for determining whether a measure constituted a penalty for the purposes of Article 7 § 1 as summarised by the Court in the case of M. v. Germany (cited above, § 120), the applicant further argued that, looking behind the appearances, his preventive detention, in any event, still constituted a penalty within the autonomous meaning of the term under that provision also after his transfer to the Straubing preventive detention centre. 179. The applicant submitted that his preventive detention had been imposed following conviction for a criminal offence. He stressed that such detention could not be ordered without a previous conviction of an offence. 180. In the applicant’s view, preventive detention was a criminal law measure under domestic law, given that the provisions governing it were essentially laid down in Articles 66-66c of the Criminal Code and Article 463 of the Code of Criminal Procedure. 181. As for the nature and purpose of the measure, the applicant argued that preventive detention as executed in the Straubing preventive detention centre in accordance with the changes introduced under the Preventive Detention (Distinction) Act of 5 December 2012 was still fundamentally different from detention in a psychiatric hospital. He stressed that of the 71 new posts created in the Straubing preventive detention centre (see paragraph 46 above), only 13 were therapeutic staff whereas the majority of staff consisted of administrative personnel and uniformed prison officers. Moreover, despite the modified conditions of detention in the preventive detention centre, there was no separation in terms of organisation between the prison and the preventive detention centre, the latter being merely a department of the former and located on the premises of a penal institution. 182. As for the procedures involved in the making and implementation of a preventive detention order, the applicant noted that the measure had been ordered by a criminal court. Its execution had been determined by the courts responsible for the execution of sentences. Furthermore, the provisions governing the order and execution of preventive detention were still part of the Criminal Code (Articles 66-66c) and of the Code of Criminal Procedure (Article 463). 183. In the applicant’s submission, civil courts were at least as experienced as criminal courts in assessing the necessity of confining mental health patients whose condition could lead to serious crimes. Civil courts had jurisdiction to decide on the detention of persons of unsound mind who were suspected of posing a danger to public under the Bavarian (Mentally Ill Persons’) Placement Act (see paragraph 90 above). Furthermore, civil courts had jurisdiction to order therapy detention of persons of unsound mind in an appropriate institution under the Therapy Detention Act (see paragraph 85 above). 184. Preventive detention, which no longer had any maximum duration and was only terminated when a court found that there was no longer a high risk that the detainee would commit the most serious types of violent or sexual offences on account of his mental disorder, was still one of the severest measures – if not the severest measure – which could be imposed under the German Criminal Code. In the applicant’s view, regard should be had to the fact that he had committed his offence as a young adult, that he was a first offender and that therefore, in his case, preventive detention could mean virtually lifelong deprivation of liberty. 185. In sum, in the applicant’s view, all the criteria under the Court’s case-law for classifying his preventive detention as a penalty for the purposes of Article 7 § 1 were met. 186. The applicant further argued that, having regard to the comparative law material available in the case of M. v. Germany (cited above, §§ 70-73), few States authorised preventive detention for adults, and probably none apart from Germany authorised preventive detention for young offenders. 2. The Government 187. The Government took the view that, since the applicant’s transfer to the Straubing preventive detention centre on 20 June 2013, the preventive detention order of 3 August 2012 did not impose a heavier penalty on him than the one which was applicable at the time of his offence and therefore complied with Article 7 § 1 of the Convention. 188. The Government conceded that it was only after the applicant had committed his offence in 1997 that section 7(2) of the Juvenile Courts Act had entered into force, which permitted ordering preventive detention subsequently, that is to say after the conviction. 189. However, in the Government’s view, the applicant’s detention at the relevant time, from 20 June 2013 onwards, could no longer be classified as a penalty. Referring to the criteria established in the Court’s case-law for determining whether a particular measure was a penalty as summarised in the case of Bergmann (cited above, §§ 149-150), they argued that the only static factor to be taken into account was the question whether the measure concerned was imposed following conviction for a criminal offence. All other criteria were dynamic and could thus change over time. 190. Consequently, as recognised by the Court in the case of Bergmann (cited above, §§ 164-177), if sufficient changes were implemented, a measure could lose its previously punitive character. This could also occur during the execution of the measure on the basis of the same court order. It would be overly formalistic to require a new judicial decision on the applicant’s preventive detention following the applicant’s transfer to the new preventive detention centre as soon as it had been ready to accommodate detainees. As his condition had not changed, a fresh decision in June 2013 could only have been exactly the same as that taken on 3 August 2012. 191. The Government further explained that the specific criteria for classifying the applicant’s preventive detention as a penalty were no longer met after his transfer to the Straubing preventive detention centre. As regards the question whether the measure concerned was imposed following conviction for a criminal offence, the Government noted that, other than in the Bergmann case where that applicant’s preventive detention order had been made in the sentencing court’s judgment and been prolonged subsequently, the order for the applicant’s preventive detention in the present case had been made in 2012, many years after his conviction in 1999 – which had not entailed a preventive detention order – in separate proceedings. The connection between the applicant’s criminal conviction and his preventive detention was therefore not as close as in the Bergmann case. 192. As for the characterisation of the measure under domestic law, preventive detention had never been considered as a penalty under the long‑established twin-track system of sanctions in German criminal law, but as a corrective and preventive measure. The aim of that twin-track system of penalties and measures of correction and prevention was to make it possible to limit penalties for all offenders to what was strictly necessary to compensate for the perpetrator’s guilt. The Government stressed that, as shown by the Council of Europe’s Annual Penal Statistics (see paragraph 92 above), this twin-track system lead to Germany having a relatively low rate of long prison sentences compared to many other Contracting Parties to the Convention. 193. As for the nature and purpose of the measure, the Government explained that the applicant was no longer being detained as an offender for punitive purposes, but as a person of unsound mind with a criminal history in need of treatment, his mental disorder having become a new precondition for his detention. In accordance with the constitutional principle of proportionality, persons of unsound mind could only be detained for an extended period of time if their dangerousness had already manifested itself in a serious offence. The applicant’s detention was being executed in the relevant period in a new preventive detention centre focused on comprehensive therapy provided by a multi‑disciplinary team of experts, which had made intensive efforts to motivate the applicant to undergo suitable treatment for his disorder. As the preventive detention order had not been made in the trial court’s judgment, but the seriousness of his offence had only at a later stage been a reason for examining whether he suffered from a mental disorder and was consequently dangerous, the preventive nature of the measure was even clearer than in the Bergmann case. 194. The Government explained in that context that after the Federal Constitutional Court’s judgment, which had been intended to implement the Court’s judgment in the case of M. v. Germany, the whole system of preventive detention had been overhauled by federal legislation and implementation laws in each of the sixteen Länder. The Länder had built new preventive detention centres at considerable cost (exceeding 200 million euros) and employed numerous new expert staff members in order to ensure individualised care and comprehensive therapy for all detainees. The Government stressed that the reform of the German preventive detention system had been accompanied, examined and ultimately approved by a series of Chamber judgments of this Court. It was a model of successful dialogue and cooperation between this Court and a national supreme court with a view to enhancing fundamental rights protection in Europe. 195. The preventive detention centre in which the applicant was being held was thus not a prison, but a therapeutic institution for the treatment of persons with mental disorders which met standards comparable to those in closed wards of psychiatric hospitals. Therefore, the connection between the applicant’s detention and his conviction of an offence had been erased. 196. As for the procedures involved in the making and implementation of the measure, the Government conceded that the decisions on the imposition and review of preventive detention were still taken by criminal and not by civil courts. This was based on considerations of practicability. The courts belonging to the criminal justice system also took decisions on detention in a psychiatric hospital under Article 63 of the Criminal Code. As accepted in the case of Bergmann (cited above, § 146), they were thus particularly experienced in assessing the necessity of confining mental health patients whose condition could lead to serious crimes. In any event, the legal requirements to be applied would be the same irrespective of whether the civil or the criminal courts decided on the imposition and review of preventive detention. 197. The Government further argued that, while preventive detention was a severe measure as the law did not lay down any maximum duration, it was subject to regular judicial review. 198. The Government concluded that, as in the case of Bergmann, both the nature and the purpose of the applicant’s preventive detention had changed so substantially since his transfer to the preventive detention centre on 20 June 2013 that the measure could no longer be classified as a penalty. 199. Finally, the Government submitted that a number of Contracting Parties to the Convention, including the Czech Republic, France, Italy, Poland, Switzerland and the United Kingdom, permitted the preventive detention of persons who had committed crimes as young adults and that the applicant had been more than thirty years old when his preventive detention had been ordered. C. The third party’s submissions 200. The EPLN considered that the Bergmann case, to which the present application was a follow-up case, constituted a radical change in the Court’s case-law in that preventive detention which was ordered for therapeutic purposes against a person suffering from a mental illness was deemed no longer to constitute a penalty. In the EPLN’s view, preventive detention executed in the new preventive detention centres in accordance with the Preventive Detention (Distinction) Act still had to be classified as a penalty. It was only applicable to persons convicted of criminal offences. It was ordered by the criminal courts. It was aimed at prolonging the detention after convicted offenders had served their sentence. Furthermore, it was executed in centres located on the premises of prisons. Being of potentially unlimited duration, it was one of the most serious infringements of fundamental rights in a democratic society. Its “retrospective” imposition therefore breached Article 7 § 1. 201. In the EPLN’s view, the aim of the German legislature in enacting the Preventive Detention (Distinction) Act, had been to circumvent the Court’s finding in the case of M. v. Germany that preventive detention as it stood then was incompatible with the Convention by making that detention fall within the ambit of Article 5 § 1 (e). However, treatment in a prison environment could not be compared to non-penal psychiatric internment. D. The Grand Chamber’s assessment 1. Recapitulation of the relevant principles 202. The Court reiterates that the guarantee enshrined in Article 7, which is an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 of the Convention in time of war or other public emergency. It should be construed and applied, as follows from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment (see Kafkaris v. Cyprus [GC], no. 21906/04, § 137, ECHR 2008; M. v. Germany, cited above, § 117; and Bergmann, cited above, § 149). 203. The concept of “penalty” in Article 7 is autonomous in scope. To render the protection afforded by Article 7 effective the Court must remain free to go behind appearances and assess for itself whether a particular measure amounts in substance to a “penalty” within the meaning of this provision (see Welch v. the United Kingdom, 9 February 1995, § 27, Series A no. 307‑A; Jamil v. France, 8 June 1995, § 30, Series A no. 317‑B; and Del Río Prada, cited above, § 81). The wording of the second sentence of Article 7 § 1 indicates that the starting-point – and thus a very weighty factor (see Glien, cited above, § 121; and Bergmann, cited above, § 150) – in any assessment of the existence of a penalty is whether the measure in question was imposed following conviction for a “criminal offence”. Other relevant factors are the characterisation of the measure under domestic law, its nature and purpose, the procedures involved in its making and implementation, and its severity (see Welch, cited above, § 28; Van der Velden v. the Netherlands (dec.), no. 29514/05, ECHR 2006‑XV; and Kafkaris, cited above, § 142). The severity of the measure is not, however, in itself decisive, since many non-penal measures of a preventive nature may, just as measures which must be classified as a penalty, have a substantial impact on the person concerned (see Welch, cited above, § 32; Del Río Prada, cited above, § 82; and Bergmann, cited above, § 150). 204. The specific conditions of execution of the measure in question may be relevant in particular for the nature and purpose, and also for the severity of that measure and thus for the assessment of whether or not the measure is to be classified as a penalty for the purposes of Article 7 § 1. These conditions of execution may change during a period of time covered by the same judicial order. Just as in the context of Article 5 § 1, it is then necessary to clarify whether it is the conditions of execution at the time when the measure – such as a person’s detention – was ordered or the conditions of execution during a later period to be assessed by the Court which are relevant for assessing whether the measure in question was a penalty within the meaning of Article 7 § 1. 205. A rare case in which the Court was confronted with such a situation was the application of W.P. v. Germany (cited above, §§ 76-80). In that case, the Court had considered that the conditions of the applicant’s preventive detention had substantially changed during the period covered by the same detention order. As shown above (see paragraph 140), while the Court had struck the application out of the list in respect of the alleged breach of Article 7 § 1 following the Government’s unilateral declaration acknowledging a violation of this provision during the time in which Mr W.P. was detained in prison, it found that Mr W.P.’s detention had complied with Article 7 § 1 in the period in which he had been detained in a new preventive detention centre. Accordingly, in the assessment of whether the measure in question, namely Mr W.P.’s preventive detention, was to be classified as a penalty, the Court, as in the context of Article 5 § 1, took into account changes in the conditions of detention occurring during the execution of the measure on the basis of the same detention order. 206. This approach implies that in some rare cases, especially if national law does not qualify a measure as a penalty and if its purpose is therapeutic, a substantial change, in particular in the conditions of execution of the measure, can withdraw the initial qualification of the measure as a penalty within the meaning of Article 7 of the Convention, even if that measure is implemented on the basis of the same order. 207. The Grand Chamber considers that the wording of Article 7 § 1, second sentence, according to which no heavier penalty may be “imposed” than the one that was applicable at the time the criminal offence was committed, does not stand in the way of an interpretation of this provision which has regard to the fact that a measure may continue to be “imposed” over a longer period of time while changing its manner of execution, and thus its characteristics, during its imposition. 208. Furthermore, the Court considers that it is only in a position to fully assess whether a measure amounts in substance to a penalty in the light of the criteria developed in its case-law (see paragraph 203 above) if it takes into account changes in the actual execution of a measure on the basis of the same order. It notes that some of these criteria can be described as “static” or not susceptible to change after the point in time when the measure was ordered, particularly the criterion whether the measure in question was imposed following conviction for a “criminal offence” or that of the procedures involved in its making. In contrast, other criteria, including those of the nature and purpose of the measure and of its severity, can be described as “dynamic” or susceptible to change over time. In order to assess the compliance of a measure with Article 7 § 1 during a given period, the actual manner in which the measure was executed throughout that period must therefore be considered relevant and must be taken into consideration by the Court. 209. Consequently, the relevant point in time, or period, for assessing whether a measure was a penalty within the meaning of Article 7 § 1 is the period of time at issue in the proceedings before this Court, that is between 20 June 2013 and 18 September 2014, and not the time when the measure was ordered. 2. Application of these principles to the present case (a) The Court’s assessment in previous preventive detention cases 210. When examining whether the impugned preventive detention of the applicant should be classified as a penalty for the purposes of Article 7 § 1, second sentence, the Court observes at the outset that it was called upon to determine whether a person’s preventive detention amounted to a penalty in a number of applications lodged against Germany since 2004. These applications concerned different preventive detention regimes, which evolved in respect of both their legal basis and their implementation in practice. In accordance with its case-law, the Court had to interpret the notion of penalty in Article 7 § 1 autonomously in these cases, also bearing in mind the classification of comparable measures in other Contracting Parties to the Convention (see M. v. Germany, cited above, § 126; Glien, cited above, § 124; and Bergmann, cited above, §§ 161-163). 211. In the case of M. v. Germany (cited above, §§ 124-33), the Court concluded that preventive detention ordered and enforced in accordance with the German Criminal Code as it stood at the relevant time, that is detention in separate prison wings and without a mental disorder being a condition for such detention, had to be classified as a penalty. In the case of Glien (cited above, §§ 120-30) it found that the applicant’s preventive detention as enforced in the transitional period between the Federal Constitutional Court’s judgment of 4 May 2011 and the application in practice of the Preventive Detention (Distinction) Act (see paragraphs 76-80 above), which entered into force on 1 June 2013 and entailed detention under a fresh regime in new preventive detention centres, still constituted a penalty for the purposes of Article 7 § 1. It considered that there had not been any substantial changes in the implementation of Mr Glien’s preventive detention, which was still being executed in a separate prison wing, compared with the situation at issue in M. v. Germany. 212. In the case of Bergmann (cited above, §§ 151-83), the Court was finally called upon to determine whether the subsequently prolonged preventive detention of the applicant, which was executed after the expiry of the above-mentioned transitional period, in accordance with the Preventive Detention (Distinction) Act, in a new separate centre for persons in preventive detention, that is to say in accordance with the new preventive detention regime, was compatible with Article 7 § 1 of the Convention. 213. The Court found that preventive detention, as a rule, still was to be considered as a penalty for the purposes of Article 7 § 1. However, in cases such as that of the applicant, where preventive detention was extended because of, and with a view to the need to treat a mental disorder, which was a new precondition for subsequently extending his preventive detention, its nature and purpose changed to such an extent that it was no longer to be classified as a penalty within the meaning of Article 7. Such preventive detention thus complied with Article 7 (see also W.P. v. Germany, cited above, §§ 76-79). 214. In determining whether the subsequently imposed preventive detention of the applicant in the present case constituted a penalty for the purposes of the second sentence of Article 7 § 1, the Court, as explained above, considers it necessary to analyse the characteristics of the measure during the period at issue before it, that is between 20 June 2013 and 18 September 2014. During that period, the applicant, who was being detained in Straubing, was placed in a new preventive detention centre. The Court notes that the present case has this element in common with the cases of Bergmann (cited above) and W.P. v. Germany (cited above), which, for their part, concerned preventive detention which was subsequently prolonged beyond the former statutory maximum duration. (b) Measure imposed following conviction for a criminal offence 215. As for the question whether the measure at issue was imposed following conviction for a “criminal offence”, the Court notes that the preventive detention order against the applicant had not been made together with his conviction (as in the above-mentioned Bergmann case), but had been imposed in a separate judgment in 2012, several years after the applicant’s conviction in 1999. However, the order was nevertheless linked to the conviction – and thus “following” the latter – as it was a precondition for the preventive detention order under section 7(2) of the Juvenile Courts Act (see paragraph 56 above) that the young offender concerned had been imposed a sentence of at least seven years for a felony, in particular, against life, physical integrity or sexual self-determination. Moreover, under that provision, the procedure concerning the offender’s preventive detention had to be based on evidence obtained prior to the end of the term of imprisonment imposed for the said offence. 216. The Court would add that the Regional Court, in its judgment of 3 August 2012, had not ordered the applicant’s preventive detention in a particular institution but had only generally ordered his preventive detention. It was clear when the Regional Court made its order that, following the judgment of the Federal Constitutional Court of 4 May 2011 which the Regional Court applied, the applicant was to be transferred as soon as possible to an institution offering him not only conditions more assimilated to general living conditions but, in particular, therapeutic provision tailored to his needs as a mental-health patient. The preventive detention order therefore covered the applicant’s detention in the new preventive detention centre in the period here at issue. (c) Characterisation of the measure under domestic law 217. As regards the characterisation of preventive detention under domestic law, the Court notes that in Germany such detention is not, and has never been, considered as a penalty to which the constitutional absolute ban on retrospective punishment applies. In its leading judgment of 4 May 2011, the Federal Constitutional Court again confirmed that preventive detention, contrary to this Court’s findings concerning the notion of penalty under Article 7 of the Convention, was not a penalty for the purposes of the absolute prohibition on the retrospective application of criminal law under the Basic Law (see paragraph 74 above). It further found that the provisions of the Criminal Code on the imposition and duration of preventive detention as they then stood failed, however, to meet the constitutional requirement of differentiating between purely preventive measures of correction and prevention, such as preventive detention, and penalties, such as prison sentences (see paragraphs 70-72 above). The court therefore ordered the legislature to amend the provisions on preventive detention in the Criminal Code so as to reflect that difference. 218. In line with this requirement, the legislative amendments to the Criminal Code introduced by the Preventive Detention (Distinction) Act serve to clarify and extend the differences between the way in which preventive detention and prison sentences are enforced (see in particular the new Article 66c of the Criminal Code). They thus confirm and expand the differences between measures of correction and prevention, such as preventive detention, under the provisions of the Criminal Code and measures which are classified as penalties under the long-established twin‑ track system of sanctions in German criminal law (see M. v. Germany, cited above, §§ 45-48 and 125). (d) Nature and purpose of the measure 219. As for the nature and purpose of the measure of preventive detention, the Court observes that at the material time, the applicant was detained in the Straubing preventive detention centre. His deprivation of liberty was thus not effected in an ordinary prison in a separate wing for persons in preventive detention as was the case for the applicants in the above-mentioned M. v. Germany and Glien cases, but in an institution comparable to that at issue in the Bergmann case. He was further deprived of his liberty as a person of unsound mind and was provided with treatment with a view to addressing his mental disorder (see paragraphs 142 et seq. above). 220. The Court observes that there were considerable differences between the deprivation of liberty in an ordinary prison and the applicant’s preventive detention in the new preventive detention centre set up to comply with the new preventive detention regime (see in particular Article 66c of the Criminal Code and the Bavarian Preventive Detention Execution Act, paragraphs 76-81 above). In that centre, the applicant was being deprived of his liberty under considerably improved material conditions compared to ordinary prison conditions, with a view to differentiating between those two forms of detention, as required by the German Constitution. He was, for instance, detained in a larger cell measuring 15 m² and including a kitchen unit and a separate bathroom and could move more freely within the centre, which provided for rooms and outside spaces for occupational and recreational activities (see paragraph 46 above). 221. More importantly, the Court notes that in the Straubing preventive detention centre, as in other such centres (see paragraphs 47 and 81 above), an increased number of specialised therapeutic staff provided inmates such as the applicant with individualised medical and therapeutic treatment in accordance with an individual treatment plan. The comprehensive therapeutic provision for the applicant, addressing his mental condition, now included, in particular, one-to-one or group social therapy, participation in an intensive treatment programme for sexual offenders and therapy administered by an external psychiatrist. The Court notes that it was only after the period covered by the proceedings here at issue that the applicant accepted a part of the treatment offers made to him (see paragraph 47 above). However, the Court does not have any reason to doubt that the treatment offers made to the applicant were adequate, sufficient and available to the applicant at the relevant time. It is therefore of no impact to its findings on the nature and purpose of the applicant’s preventive detention that he did not immediately accept the offers made to him. 222. As it has been noted in previous judgments (see, in particular, Glien, cited above, §§ 98-99; and Bergmann, cited above, §§ 121-23), following the Court’s judgment in the case of M. v. Germany (cited above) and the Federal Constitutional Court’s judgment of 4 May 2011 responding to it, the domestic authorities have taken wide-ranging measures at the judicial, legislative and executive levels with a view to tailoring the execution of preventive detention to the requirements both of the Constitution and the Convention. Substantive measures have been taken at considerable cost in order to provide detainees in preventive detention with individual and intensive psychiatric, psychotherapeutic or socio-therapeutic treatment aimed at reducing the risk they pose to the public. 223. The Court, having regard to the material before it, is satisfied that the said measures taken by the domestic authorities entailed a substantive improvement of the conditions in which persons remanded in preventive detention are detained. Treatment aimed at reducing the threat these persons pose to the public to such an extent that the detention may be terminated as soon as possible is now at the heart of that form of detention, both in the interest of the detainee and in that of the public. 224. The Court agrees in this context with the Government’s view that the reform of the German preventive detention system was conducted and put in practice against the background of a dialogue between this Court and the Federal Constitutional Court (see in particular the Court’s judgments in the cases of M. v. Germany, Jendrowiak, cited above; Schmitz v. Germany, no. 30493/04, 9 June 2011; Glien and Bergmann, cited above; and the judgments and decisions of the Federal Constitutional Court of 4 May 2011, file nos. 2 BvR 2365/09, 2 BvR 740/10, 2 BvR 2333/08, 2 BvR 1152/10 and 2 BvR 571/10, cited above, of 15 September 2011; file no. 2 BvR 1516/11, cited above of 6 February 2013; file nos. 2 BvR 2122/11 and 2 BvR 2705/11 of 11 July 2013; file nos. 2 BvR 2302/11 and 2 BvR 1279/12, cited above, and of 29 October 2013, file no. 2 BvR 1119/12). 225. In the Court’s view, the changes to the manner of execution of preventive detention are fundamental for persons who, like the applicant, are detained as mental-health patients. The Court attaches decisive importance, in this context, to the fact that under sections 7(2) and 105(1) of the Juvenile Courts Act read in conjunction with the requirements set out in the Federal Constitutional Court’s judgment of 4 May 2011, his subsequent preventive detention could, at the relevant time, only be ordered under a new, additional precondition, namely that he was found to suffer from a mental disorder. 226. This condition was independent of the initial sanction imposed for a criminal offence. It thus distinguishes the type of preventive detention in the applicant’s situation from preventive detention of dangerous offenders which was not ordered (or prolonged) subsequently. For the detention of this group of persons it is not required under domestic law that they suffer from mental disorders and they are not detained for the purposes of treating such disorders. 227. For persons detained as medical health patients, the preventive purpose pursued by the amended preventive detention regime carries decisive weight. The Court does not overlook the fact that also in respect of this group of persons remanded in preventive detention, the link between the measure and the offence(s) in regard of which it was ordered is not completely severed. It remains a precondition for ordering or prolonging preventive detention subsequently that the person concerned was found guilty of a serious offence. However, having regard to the setting in which preventive detention orders are executed under the new regime, the Court is satisfied that the focus of the measure now lies on the medical and therapeutic treatment of the person concerned. The medical and therapeutic provision was central to the specific measures of care provided to the applicant. This fact altered the nature and purpose of the detention of persons such as the applicant and transformed it into a measure focused on the medical and therapeutic treatment of persons with a criminal history (cf. also Bergmann, cited above, §§ 164-177). 228. The Court would clarify in that context that, in line with the findings in the judgment in the case of Bergmann (ibid., § 181) as well as its previous case-law (see M. v. Germany, cited above, §§ 124-32), “ordinary” preventive detention which is not executed with a view to treating the detainee’s mental disorder, even if implemented in accordance with the new legislative framework, still constitutes a penalty for the purposes of Article 7 § 1 of the Convention. The improved material conditions and care do not, in these circumstances, suffice to erase the factors indicative of a penalty. (e) Procedures involved in the making and implementation of the measure 229. As for the procedures involved in the making and implementation of the preventive detention order against the applicant, the Court observes that the applicant’s preventive detention was imposed by the (criminal) trial courts; its subsequent implementation was to be determined by the courts responsible for the execution of sentences, that is to say courts also belonging to the criminal justice system. 230. The Court finds that it might have highlighted the therapeutic nature of the measure if the civil courts had been entrusted with orders on the confinement of particularly dangerous persons with a criminal history suffering from a mental disorder, as was foreseen under sections 1 and 4 of the Therapy Detention Act (see paragraph 85 above), which does not appear to have acquired any importance in practice. 231. However, the Court takes account of the Government’s argument that the courts belonging to the criminal justice system were particularly experienced in assessing the necessity of confining mental-health patients who had committed a criminal act as they also dealt with decisions concerning detention in psychiatric hospitals under Article 63 of the Criminal Code (see paragraph 84 above; cf. also Bergmann, cited above, § 178). It further observes that the criteria for the imposition of preventive detention would have been the same, irrespective of whether the civil or the criminal courts, which both belong to the courts with ordinary jurisdiction, had jurisdiction to impose that measure. (f) Severity of the measure 232. Finally, the Court observes, on the matter of the severity of the measure against the applicant, that the preventive detention order against him entailed detention without any maximum duration. It therefore remained among the most serious measures which could be imposed under the Criminal Code. The Court notes in that context that both the Council of Europe Annual Penal Statistics and the statistics submitted by the Government confirm that preventive detention orders are imposed as an ultima ratio measure. In March 2017, 591 persons were in preventive detention in Germany, a country of some 81 million inhabitants. 233. Nor does the Court overlook the fact that the applicant was a young adult when he committed his first offence, with regard to which his preventive detention at issue was ordered in 2012, when he was thirty-five years old. He could therefore potentially be remanded in detention for a longer period of time than persons against whom such an order had been made at a more advanced age. 234. However, as the Court has repeatedly confirmed (see paragraph 203 above), the severity of the measure is not decisive in itself. Moreover, unlike in the case of prison sentences, the detention had no minimum duration either. The applicant’s release was not precluded until after a certain lapse of time, but was dependent on the courts’ finding that there was no longer a high risk that the applicant would commit the most serious types of violent crimes or sexual offences as a result of his mental disorder. 235. The duration of the applicant’s detention thus depended to a considerable extent on his cooperation in necessary therapeutic measures. The Court notes in that context that the applicant’s transfer to the new Straubing preventive detention centre placed him in a better position to work towards his release by means of therapies tailored to his needs. Furthermore, his detention was subject to regular judicial reviews at relatively short intervals (see paragraph 64 above). That increased the probability that the measure would not last overly long. The severity of the preventive detention order was alleviated by these factors (cf. also Bergmann, cited above, §§ 179-80). (g) Conclusion 236. In view of the foregoing considerations, the Court, having assessed the relevant factors in their entirety and making its own assessment, considers that the preventive detention implemented in accordance with the new legislative framework in the applicant’s case during the period here at issue can no longer be classified as a penalty within the meaning of Article 7 § 1. The applicant’s preventive detention was imposed because of and with a view to the need to treat his mental disorder, having regard to his criminal history. The Court accepts that the nature and purpose of his preventive detention, in particular, was substantially different from those of ordinary preventive detention executed irrespective of a mental disorder. The punitive element of preventive detention and its connection with the criminal offence committed by the applicant was erased to such an extent in these circumstances that the measure was no longer a penalty. 237. In view of these findings, it is not necessary to examine whether, by the order for and execution of the applicant’s subsequent preventive detention, a heavier measure was imposed on the applicant than the one that was applicable at the time he committed his criminal offence. 238. The Court observes that its findings are in line with its conclusions in the case of Bergmann (cited above, §§ 182-83). As in its previous case‑law (see, inter alia, M. v. Germany, cited above, §§ 122 et seq., on the one hand, and K. v. Germany, no. 61827/09, §§ 79 et seq., 7 June 2012 and G. v. Germany, no. 65210/09, §§ 70 et seq., 7 June 2012, on the other), it does not consider that the differences between the subsequent prolongation of preventive detention beyond a former statutory time-limit (at issue in the cases of Bergmann and W.P. v. Germany, both cited above) and the subsequent imposition of such detention in a judgment separate from and subsequent to the trial court’s judgment are such as to change the assessment of the compliance of these measures with the Convention. 239. There has accordingly been no violation of Article 7 § 1 of the Convention. V. ALLEGED LACK OF A SPEEDY JUDICIAL REVIEW 240. The applicant further complained in application no. 10211/12 that the domestic courts had not decided speedily in the proceedings in which he had sought to challenge the lawfulness of his provisional preventive detention. He relied on Article 6 § 1 of the Convention. 241. As the Chamber had found, proceedings for judicial review of the lawfulness of detention such as the proceedings at issue fall to be examined under Article 5 § 4 of the Convention, which reads as follows: “4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” 242. The Government contested that argument. A. The Chamber judgment 243. The Chamber found that the period to be examined had started on 29 June 2011, when the Regional Court had received the applicant’s appeal against the detention order of 6 May 2011. It had ended on 30 May 2012 when the Federal Constitutional Court’s decision of 22 May 2012 had been served on counsel for the applicant. It had thus lasted eleven months and one day over three levels of jurisdiction. The proceedings before the Federal Constitutional Court as such had lasted eight months and twenty-two days. 244. Having regard, in particular, to the special features of constitutional court proceedings and to the complexity of the proceedings before the Federal Constitutional Court, the Chamber found that the speediness requirement had nevertheless also been complied with in the proceedings before that court. It stressed that the different role of the Constitutional Court within the domestic legal order had been reflected by the fact that a detainee could obtain a fresh judicial review of a detention order before the ordinary courts even while a previous set of proceedings before the Constitutional Court was still pending. B. The parties’ submissions 1. The applicant 245. The applicant argued that the length of the proceedings in which he had sought to challenge the lawfulness of his provisional preventive detention had violated the speediness requirement of Article 5 § 4 of the Convention. 246. The applicant took the view that the total length of the proceedings concerning the lawfulness of his provisional preventive detention had been excessive. From the time when, on 27 June 2011, he had lodged his appeal against the decision of the Regensburg Regional Court of 6 May 2011, some eleven months had passed before the Federal Constitutional Court, by decision of 22 May 2012 served on his counsel on 30 May 2012, had taken its final decision on the lawfulness of his provisional preventive detention. In particular, the proceedings before the Federal Constitutional Court, which had declined to consider his constitutional complaint of 7 September 2011, had lasted eight months and twenty-three days, an unreasonably long period. 247. The applicant contested the assertion that the special features of constitutional complaint proceedings had justified the longer duration of proceedings. The Constitutional Court had only had to examine the compliance of the impugned decisions with the fundamental right to liberty and could therefore be expected to have taken a decision within a reasonable time, as the Regional Court and the Court of Appeal had done. The proceedings before that court had only been of average complexity as the judges adjudicating on the applicant’s complaint had been familiar with his case, having adopted the leading judgment of 4 May 2011 in the applicant’s case only a year before. Moreover, there had been a long delay between the applicant’s reply of 1 January 2012 to the submissions of the institutions to whom the constitutional complaint had been communicated and the delivery of the Constitutional Court’s decision on 22 May 2012. He claimed that he could not have filed another appeal while the proceedings before the Constitutional Court were pending. 2. The Government 248. In the Government’s view, the proceedings at issue had been conducted speedily, as required by Article 5 § 4. 249. The Government emphasised that at the relevant time, the German courts had been obliged to adapt German law on subsequent preventive detention as closely as possible to the requirements of the Convention. In the period between 4 May 2011 and 1 June 2013 in which the legislature had not yet amended the German preventive detention system, they had been alone in attempting to accomplish that task. 250. The Government referred to and agreed with the Chamber’s findings in respect of Article 5 § 4. They argued, in particular, that the proceedings before the Federal Constitutional Court had complied with the speediness requirement. The proceedings had been complex in that the Constitutional Court had had to assess for the first time whether the ordinary courts had applied its leading judgment of 4 May 2011 correctly. Furthermore, account had to be taken of the special features of constitutional court proceedings and the special role of the Federal Constitutional Court in the German judicial system. Moreover, the applicant had had, and had taken, the opportunity to lodge a new request with the Regional Court for judicial review of his provisional preventive detention while the proceedings at issue had been pending before the Federal Constitutional Court. C. The Grand Chamber’s assessment 1. Recapitulation of the relevant principles 251. The Court reiterates that Article 5 § 4 of the Convention, in guaranteeing to detained persons the right to institute proceedings to challenge the lawfulness of their detention, also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of detention and the ordering of its termination if it proves unlawful (see Mooren v. Germany [GC], no. 11364/03, § 106, 9 July 2009, and Idalov v. Russia [GC], no. 5826/03, § 154, 22 May 2012). 252. The question of whether the right to a speedy decision has been respected must be determined in the light of the circumstances of each case (see, inter alia, R.M.D. v. Switzerland, 26 September 1997, § 42, Reports 1997‑VI; Fešar v. the Czech Republic, no. 76576/01, § 68, 13 November 2008; and Stephens v. Malta (no. 2), no. 33740/06, § 84, 21 April 2009) and – as is the case for the “reasonable time” stipulation in Articles 5 § 3 and 6 § 1 of the Convention – including the complexity of the proceedings, their conduct by the domestic authorities and by the applicant and what was at stake for the latter (see Mooren, cited above, § 106, and the references therein; S.T.S. v. the Netherlands, no. 277/05, § 43, ECHR 2011; and Shcherbina v. Russia, no. 41970/11, § 62, 26 June 2014). 253. The Court accepts that the complexity of medical – or other – issues involved in an examination of an application for release can be a factor which may be taken into account when assessing compliance with the requirement of “speediness” laid down in Article 5 § 4. It does not mean, however, that the complexity of a given dossier – even exceptional – absolves the national authorities from their essential obligations under this provision (cf. Musiał v. Poland [GC], no. 24557/94, § 47, ECHR 1999‑II; Baranowski, cited above, § 72; and Frasik v. Poland, no. 22933/02, § 63, ECHR 2010 (extracts)). 254. Article 5 § 4 does not compel the Contracting Parties to set up more than one level of jurisdiction for the examination of the lawfulness of detention and for hearing applications for release. Nevertheless, a State which offers a second level of jurisdiction must in principle accord to the detainees the same guarantees on appeal as at first instance (see Navarra v. France, 23 November 1993, § 28, Series A no. 273‑B; Khudobin v. Russia, no. 59696/00, § 124, ECHR 2006‑XII (extracts); and S.T.S. v. the Netherlands, cited above, § 43), including as regards the speediness of the review by the appellate body of a detention order imposed by a lower court (see Piotr Baranowski v. Poland, no. 39742/05, § 63, 2 October 2007). The same applies to constitutional courts which decide on the legality of detention and order the release of the person concerned if the detention is not lawful (cf. Smatana v. the Czech Republic, no. 18642/04, § 123, 27 September 2007; and Mercan v. Turkey (dec.), no. 56511/16, § 24, 8 November 2016). 255. In order to determine whether the requirement that a decision be given “speedily” has been complied with, it is necessary to perform an overall assessment where the proceedings were conducted at more than one level of jurisdiction (see Navarra, cited above, § 28, and Mooren, cited above, § 106). Where the original detention order was imposed by a court (that is, by an independent and impartial judicial body) in a procedure offering appropriate guarantees of due process, and where the domestic law provides for a system of appeal, the Court is prepared to tolerate longer periods of review in proceedings before a second-instance court (see Lebedev v. Russia, no. 4493/04, § 96, 25 October 2007, and Shcherbina, cited above, § 65). These considerations also apply in respect of complaints under Article 5 § 4 concerning proceedings before constitutional courts which were separate from proceedings before ordinary courts under the relevant provisions of the law on criminal procedure (see Žúbor v. Slovakia, no. 7711/06, § 89, 6 December 2011). 256. The Court has laid down relatively strict standards in its case-law concerning the question of State compliance with the speediness requirement. An analysis of its case-law reveals that in appeal proceedings before the ordinary courts which follow a detention order imposed by a court at first instance, delays exceeding three to four weeks for which the authorities must be held responsible are liable to raise an issue under the speediness requirement of Article 5 § 4 unless a longer period of review was exceptionally justified in the circumstances of the case (cf., inter alia, G.B. v. Switzerland, no. 27426/95, §§ 27 and 32-39, 30 November 2000 – which determined that a duration of thirty-two days for a federal attorney and a federal court to decide on the applicant’s request for release constituted a breach of Article 5 § 4; Lebedev, cited above, §§ 98-102 – which determined the authorities’ responsibility for twenty-seven days of the overall time it took the appeal court to decide on the applicant’s request for release, which was incompatible with Article 5 § 4; for further examples see Piotr Baranowski, cited above, § 64, and Shcherbina, cited above, § 65). 2. Application of these principles to the present case 257. As regards the period to be taken into consideration in determining whether the respondent State complied with the speediness requirement under Article 5 § 4, the Court observes that the period started on 29 June 2011, when the Regional Court received the applicant’s appeal against the detention order of 6 May 2011. It ended on 30 May 2012 when the Federal Constitutional Court’s decision of 22 May 2012 was served on counsel for the applicant (for the calculation of the period, cf. Smatana, cited above, § 117, and the references therein). It thus lasted eleven months and one day over three levels of jurisdiction. 258. The Court observes that the applicant contested the compliance of the length of the proceedings before the Federal Constitutional Court (eight months and twenty-three days) and of the resulting total duration of the proceedings with Article 5 § 4; he does not appear to argue that the proceedings before the ordinary courts failed to comply with the speediness requirement under that provision. 259. The Court agrees that the Regional Court, which took the decision refusing to amend its detention order of 6 May 2011 five days after having received the applicant’s appeal on 29 June 2011, namely on 4 July 2011, conducted the proceedings before it with expedition. 260. Following the Regional Court’s decision, the Court of Appeal, having obtained the prosecution and defence submissions, took its decision on the applicant’s appeal on 16 August 2011; the proceedings before that court thus lasted forty-three days. 261. It does not appear that the applicant, who supplemented grounds for his appeal on five occasions (see paragraph 18 above), substantially contributed to the duration of the proceedings before that court. 262. The Court considers, however, that the proceedings before the Court of Appeal were relatively complex, both from a legal and a factual point of view. Following the Federal Constitutional Court’s reversal of its case-law in a leading judgment, it was necessary for the Court of Appeal to examine whether under the new restrictive standards set by the Constitutional Court there continued to be weighty grounds for expecting that the applicant’s subsequent preventive detention would be ordered. It had become necessary, in particular, to determine whether there were sufficient grounds for assuming that the applicant suffered from a mental disorder. Such an assessment had not been necessary under the Juvenile Courts Act as interpreted previously. In making that assessment in the applicant’s case, the Court of Appeal had regard to the findings of fact made by the Regensburg Regional Court in its judgment of 22 June 2009, as well as to the reports of four medical experts ordered in the course of these and previous proceedings. It thoroughly reasoned its decision ordering the applicant’s provisional preventive detention. 263. Having regard to the complexity of the proceedings and the fact that the Court of Appeal reviewed, as a court of second instance, a detention order imposed and reviewed by a first-instance court –in which situation the Court is prepared to tolerate longer periods of review (see paragraph 255 above) – the Court finds that the proceedings before the Court of Appeal still complied with the speediness requirement in the circumstances of the case. 264. The Court further observes that on 29 August 2011 the Court of Appeal took its decision on the applicant’s complaint regarding a breach of his right to be heard and his objection to the decision of 16 August 2011; that decision was served on counsel for the applicant on 6 September 2011. The proceedings thus lasted twenty-one days which, in the light of the above considerations, cannot be considered as excessive. 265. As regards the proceedings before the Federal Constitutional Court, the Court notes that the applicant lodged his constitutional complaint with that court on 7 September 2011. On 25 October 2011, that is to say within forty-seven days, the Federal Constitutional Court took an interim decision refusing the applicant’s request for stay of execution of the detention order against him. Its decision of 22 May 2012, declining to consider the complaint was served on counsel for the applicant on 30 May 2012. The proceedings before that court thus lasted a total period of eight months and twenty-three days. 266. In determining whether, in view of this relatively long period, the applicant’s right to a speedy decision was respected in the circumstances of the present case, the Court accepts that the proceedings before the Federal Constitutional Court were complex. Following its leading judgment of 4 May 2011, which had been delivered, inter alia, in respect of the applicant, that court had to assess for the first time whether the ordinary courts’ interpretation and application of that leading judgment complied with the Constitution. The court had to determine, in particular, whether the ordinary courts interpreted the new restrictive criteria for imposing preventive detention subsequently, and in particular the requirement that the person concerned suffered from a mental disorder, which involved complex medical and legal issues, in compliance with the constitutional right to liberty. 267. The complexity of the proceedings is also reflected by the fact that the Federal Constitutional Court communicated the constitutional complaint to the regional Government of Bavaria, to the President of the Federal Court of Justice and to the General Public Prosecutor at the latter court and obtained their observations, as well as the applicant’s observations in reply, before taking its decision. 268. The Court finds that the applicant, who replied to the submissions of the regional Government of Bavaria, of the President of the Federal Court of Justice and of the General Public Prosecutor dated 28, 24 and 25 November 2011 respectively by submissions dated 1 January 2012, cannot be said to have greatly contributed to the duration of the proceedings before the Federal Constitutional Court. 269. The Federal Constitutional Court, for its part, was not inactive during the period in which the proceedings were pending before it. It conducted the proceedings with due regard to the importance of the applicant’s right to liberty in that it fairly quickly issued a reasoned interim decision on his request for a stay of execution of the detention order against him and communicated the constitutional complaint, asking several parties to submit their observations. 270. The Court further considers that the Federal Constitutional Court conducted the proceedings before it in a different legal context from that of the ordinary courts and that the special features of the proceedings before that court must be taken into account in assessing compliance with the speediness requirement of Article 5 § 4. The Court notes that in its examination of the compliance of a detention order with the fundamental right to liberty, the Constitutional Court also reviews, as do the lower courts, the lawfulness of a complainant’s detention and has jurisdiction to quash the decision of the ordinary courts and, if appropriate, order the release of the detained person if the detention is unlawful (see as an example in this respect the Constitutional Court’s leading judgment of 4 May 2011, paragraphs 68-75 above). 271. However, the Federal Constitutional Court does not carry out its review as an additional instance on the merits, but examines the detention order’s compliance with the Constitution alone. This different role of the Constitutional Court within the domestic legal order is reflected by the fact that under domestic law decisions become final once the last-instance ordinary court has delivered its decision. A detainee may obtain a fresh judicial review of a detention order before the ordinary courts even while a previous set of proceedings before the Constitutional Court is still pending (see paragraph 63 above; compare also Şahin Alpay v. Turkey, no. 16538/17, § 137, ECHR 2018). 272. The Court further observes that the applicant availed himself of this possibility in the present case. Shortly after having lodged his constitutional complaint on 7 September 2011, he submitted a fresh request for judicial review of his provisional preventive detention with the Regional Court on 17 November 2011. The Regional Court and the Court of Appeal examined the applicant’s fresh request and rejected it on the merits on 28 November 2011 and 2 January 2012 respectively, prior to the Constitutional Court’s decision of 22 May 2012 (see paragraph 27 above). 273. In the Court’s view, this possibility does not exempt the Constitutional Court from its obligation under Article 5 § 4 to decide speedily on the lawfulness of the applicant’s detention in order to guarantee that the right to a speedy decision remains practical and effective (cf. also, mutatis mutandis, Smatana, cited above, §§ 124 and 131). However, taking this element into account in the overall assessment of whether a decision has been given speedily is in line with the rationale behind its case-law (cited in paragraph 255 above) tolerating longer periods of review in proceedings before a second-instance court where the original detention order was imposed by a court in a procedure offering appropriate guarantees of due process. 274. The Court considers that these considerations apply a fortiori to proceedings before a constitutional court as an additional instance charged with examining compliance with the fundamental right to liberty of a detention alone and during which fresh proceedings for judicial review before the ordinary courts can already be initiated. It would add that the relatively strict standards in its case-law concerning the question of State compliance with the speediness requirement, as described in a number of cases above (see paragraph 256), were not developed in cases concerning proceedings before domestic constitutional courts challenging the lawfulness of the complainant’s detention. 275. In sum, the Court, having regard to the complexity of the proceedings before the Federal Constitutional Court in the instant case, the conduct of the proceedings, including the adoption of a reasoned interim decision on the continuation of the applicant’s detention by that court and the special features of the proceedings before that court, which permitted the applicant to obtain a fresh judicial review of his detention by the ordinary courts while the proceedings at issue were still pending before the Constitutional Court, finds that in the particular and specific circumstances of the case (see paragraphs 270 and 271 above), the requirement of speediness under Article 5 § 4 has nevertheless been complied with. 276. In the light of these findings, the Court, making an overall assessment, further considers that the applicant’s right to a speedy decision was complied with in the overall proceedings concerning the lawfulness of his provisional preventive detention. 277. There has accordingly been no violation of Article 5 § 4 of the Convention. VI. ALLEGED LACK OF IMPARTIALITY OF JUDGE P. 278. The applicant finally complained that Judge P. had been biased against him in the main proceedings before the Regensburg Regional Court concerning the order for his “retrospective” preventive detention. He relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...” 279. The Government contested that argument. A. The Chamber judgment 280. The Chamber, which had considered Article 6 § 1 to be applicable under its civil head to the proceedings concerning the lawfulness of the order for the applicant’s preventive detention, found that in the circumstances of the present case, there had neither been personal prejudice on the part of Judge P. nor objectively justified doubts as to his impartiality, for the purposes of Article 6 § 1, in the proceedings at issue. B. The parties’ submissions 1. The applicant 281. In the applicant’s submission, the Regensburg Regional Court, which had ordered his preventive detention with Judge P.’s participation, had not been impartial, as required by Article 6 § 1 of the Convention. 282. The applicant argued that there was sufficient evidence to establish that Judge P. had not been impartial on the basis of his personal conviction and behaviour (subjective test). Judge P. had warned the applicant’s female defence lawyer to be careful after the applicant’s release not to find him standing in front of her door waiting to “thank” her in person. As the Chamber had rightly found, that remark was to be understood as meaning that P. considered it a risk that the applicant would commit a serious violent or sexual offence against his lawyer if at liberty. 283. The applicant stressed that Judge P. had not made his comment about the threat which the applicant allegedly posed while giving reasons for the Regional Court’s judgment of 22 June 2009. The impugned remark had been made in a conversation concerning the possibility of the applicant’s subsequent transfer to a psychiatric hospital which Judge P. had had with the applicant’s female defence lawyer after the Regional Court had delivered the said judgment. In that context, that danger had been completely irrelevant and there had not been any reason to make the impugned remark. Judge P. had thus unduly interfered in the lawyer-client relationship with his defence counsel and had failed to act in a professional manner. He had therefore been partial and the applicant had had reason to believe that Judge P.’s lack of impartiality subsisted in the proceedings at issue in which P. had again been on the bench. 2. The Government 284. The Government argued that, as the Chamber had rightly found, the applicant’s right to a fair trial before an impartial tribunal under Article 6 § 1 of the Convention had not been breached. 285. The Government agreed that the remark which Judge P. had allegedly made in 2009 to the applicant’s then defence counsel had meant that he had considered that there was a risk that the applicant would commit a serious violent or sexual offence against his lawyer if released. However, there was no evidence that Judge P. had been personally prejudiced against the applicant. He had made his impugned remark in the course of a confidential meeting immediately after the Regional Court, of which he was a member, had ordered the applicant’s subsequent preventive detention as there was a high risk of his committing serious offences including murder for sexual gratification if released. The remark had thus been a drastic summary of the assessment of the risk emanating from the applicant which had just been made in the Regional Court’s judgment and it had been made to legal professionals who knew the case and context. 286. Moreover, the fact that Judge P. had somewhat drastically confirmed his conviction that the applicant was dangerous on 22 June 2009 did not raise objectively justified doubts that the judge lacked impartiality in the proceedings at issue, which took place some three years later, ending with the Regional Court’s judgment of 3 August 2012. There was no legitimate reason to fear that Judge P. would not carry out the necessary fresh assessment of the applicant’s dangerousness on the basis of the new evidence produced and under the law as modified by the Federal Constitutional Court’s judgment of 4 May 2011 in the meantime. C. The Grand Chamber’s assessment 1. Recapitulation of the relevant principles 287. In its judgment of 2 February 2017 in the present case, the Chamber aptly summarised the principles relevant to the present case as follows (ibid., §§ 120-123): “The Court reiterates that the existence of impartiality for the purposes of Article 6 § 1 must be determined according to (i) a subjective test, where regard must be had to the personal conviction and behaviour of a particular judge – that is to say whether the judge held any personal prejudice or bias in a given case; and (ii) an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (see, inter alia, Kleyn and Others v. the Netherlands [GC], nos. 39343/98, 39651/98, 43147/98 and 46664/99, § 191, ECHR 2003‑VI, and Oleksandr Volkov v. Ukraine, no. 21722/11, § 104, ECHR 2013). ... As to the subjective test, the personal impartiality of a judge must be presumed until there is proof to the contrary (see Morel v. France, no. 34130/96, § 41, ECHR 2000‑VI, and Micallef v. Malta [GC], no. 17056/06, § 94, ECHR 2009). ... As to the objective test, it must be determined whether, quite apart from the judge’s conduct, there are ascertainable facts which may raise doubts as to his impartiality. This implies that, in deciding whether in a given case there is a legitimate reason to fear that a particular judge or a body sitting as a bench lacks impartiality, the standpoint of the person concerned is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see Wettstein v. Switzerland, no. 33958/96, § 44, ECHR 2000‑XII, and Micallef, cited above, § 96). ... It cannot be stated as a general rule resulting from the obligation to be impartial that a superior court which sets aside an administrative or judicial decision is bound to send the case back to a different jurisdictional authority or to a differently composed branch of that authority (see Ringeisen v. Austria, 16 July 1971, § 97, Series A no. 13, and Diennet v. France, 26 September 1995, § 38, Series A no. 325‑A).” 2. Application of these principles to the present case 288. The Court notes that, in its judgment in the present case, the Chamber gave the following reasons for its finding that the applicant had been heard by an impartial tribunal for the purposes of Article 6 § 1 in the proceedings at issue (ibid., §§ 124-128): “As regards the alleged lack of impartiality of Judge P. in the present case, the Court observes that the domestic courts examined the case on the assumption that Judge P. could have made the statement in question ... and it will therefore proceed on the basis of the same assumption. It further notes that Judge P. made the impugned statement in the course of a confidential exchange between the judges of the Regional Court and the applicant’s two defence lawyers. That discussion, which took place just after the Regional Court had delivered its first judgment ordering the applicant’s retrospective preventive detention on 22 June 2009, concerned the applicant’s possible future transfer to a psychiatric hospital. It appears uncontested between the parties, and the Court agrees with that interpretation, that the remark allegedly made by Judge P. within that context to the effect that the applicant’s female counsel should be careful that the applicant would not visit and “thank” her when released was to be understood as meaning that Judge P. considered that there was a risk that the applicant would commit a serious violent or sexual offence against his lawyer (similar to the one he had been found guilty of) if released. ... The Court would stress at the outset the importance of professional conduct in the discharge of judicial functions. In determining whether it was established in view of this alleged remark that Judge P. was personally prejudiced against the applicant (see the above-mentioned “subjective test”), the Court attaches decisive weight to the context in which Judge P.’s statement was made. Assuming, as the national courts did, that he actually made the alleged remark, he did so immediately after the Regional Court, of which he was a member, had ordered the applicant’s retrospective preventive detention as it considered that the applicant was still suffering from violent sexual fantasies and that there was a high risk that the applicant would again commit serious sexual offences, including murder for sexual gratification, if released .... In these circumstances, Judge P.’s alleged remark amounted in substance to a confirmation of the Regional Court’s finding in the judgment it had just delivered. The Court therefore is not persuaded that, even assuming that the remark was made, there is sufficient evidence that Judge P. displayed hostility for personal reasons and was thus personally biased against the applicant. ... The Court shall further examine whether Judge P.’s conduct may prompt objectively justified doubts as to his impartiality from the point of view of an external observer (see the above-mentioned “objective test”). It notes that in the proceedings at issue, the Regional Court, including Judge P., had to take a new decision on whether it was necessary to order the applicant’s retrospective preventive detention after the Federal Constitutional Court had quashed its judgment of 22 June 2009 and remitted the case to the Regional Court. ... The Court, having regard to its case-law ..., considers that the mere fact that Judge P. had already been a member of the bench which had made the first order for the applicant’s retrospective preventive detention and moreover, following the quashing of that judgment, had been a member of the bench ordering the applicant’s retrospective preventive detention anew on 3 August 2012, did not suffice to raise objectively justified doubts as to his impartiality. ... The Court further finds that the fact that Judge P., in his impugned remark, allegedly confirmed that he considered the applicant to be dangerous on 22 June 2009 does not raise objectively justified doubts that the judge lacked impartiality in the proceedings at issue here. In these proceedings, which were terminated some three years after the impugned remark, the Regional Court heard fresh evidence in order to determine whether, at that time and under the law as modified by the Federal Constitutional Court’s judgment reversing its previous case-law, the applicant’s retrospective preventive detention had to be ordered. The impugned statement does not give any legitimate reason to fear that Judge P. would not have carried out that necessary fresh assessment of the level of danger that the applicant posed on the basis of the evidence produced and arguments heard in the new proceedings.” 289. The Grand Chamber would stress that assuming that Judge P. actually made the highly inappropriate remark in question, he would have displayed unprofessional behaviour. However, it considers that, for the reasons set out in detail by the Chamber which it endorses, this conduct, in the circumstances of the present case, neither showed that Judge P. was personally biased against the applicant nor that there were objectively justified doubts as to his impartiality in the proceedings at issue. 290. There has accordingly been no violation of Article 6 § 1 of the Convention. FOR THESE REASONS, THE COURT, 1. Holds, by fifteen votes to two, that there has been no violation of Article 5 § 1 of the Convention on account of the applicant’s preventive detention from 20 June 2013 onwards as a result of the impugned order for his subsequent preventive detention; 2. Holds, by fourteen votes to three, that there has been no violation of Article 7 § 1 of the Convention on account of the applicant’s preventive detention from 20 June 2013 onwards as a result of the impugned order for his subsequent preventive detention; 3. Holds, unanimously, that there has been no violation of Article 5 § 4 of the Convention on account of the duration of the proceedings for review of the applicant’s provisional preventive detention; 4. Holds, by fifteen votes to two, that there has been no violation of Article 6 § 1 of the Convention on account of the alleged lack of impartiality of Judge P. in the main proceedings concerning the order for the applicant’s subsequent preventive detention. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 4 December 2018. Johan CallewaertGuido RaimondiDeputy to the RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a) concurring opinion of Judge Ravarani; (b) partly dissenting opinion of Judge Sicilianos; (c) dissenting opinion of Judge Pinto de Albuquerque joined by Judge Dedov. G.R.J.C. CONCURRING OPINION OF JUDGE RAVARANI Translation 1. I agree with my colleagues that there was no violation of Article 7 of the Convention, and also concur with the other parts of the judgment. The reason I am setting out a separate opinion is that I think that some clarification is needed in the wording of the general principles set out in paragraphs 202 to 209 of the judgment concerning Article 7 of the la Convention. 2. The Court concludes that, particularly “where domestic law does not classify the measure as a penalty and it has a therapeutic aim, a significant change in the conditions of imposition of the measure, in particular, may cancel out the classification as a ‘penalty’ which it would have had for the purposes of Article 7 of the Convention before the change, even if the measure is still being imposed on the basis of the same order as before”. Furthermore, the Court considers that “the wording of Article 7 § 1, second sentence, according to which no heavier penalty may be ‘imposed’ than the one that was applicable at the time the criminal offence was committed, does not stand in the way of an interpretation of this provision which has regard to the fact that a measure may continue to be ‘imposed’ over a longer period of time while changing its manner of execution, and thus its characteristics, during its imposition” (see paragraphs 206-207 of the judgment). 3. In short, as the Court makes clear in paragraph 208, some of the criteria set out in the case-law of the Court to assess whether a measure constitutes a penalty for the purposes of Article 7 are “static” or “not susceptible to change after the point in time when the measure was ordered”. That holds particularly for the criterion on whether the measure in question was imposed following conviction for a “criminal offence” or that of the procedures involved in its making. “In contrast, other criteria, including those of the nature and purpose of the measure and of its severity, can be described as ‘dynamic’ or susceptible to change over time”. Therefore, “in order to assess the compliance of a measure with Article 7 § 1 during a given period, the actual manner in which the measure was executed throughout that period must therefore be considered relevant and must be taken into consideration by the Court” (see paragraph 208 of the judgment). 4. Such reasoning calls for clarification in order to prevent any misunderstandings. We might, in fact, have to accept that the “punishment” concept under Article 7 was not fixed and objective but fluid or “dynamic”, as stated in paragraph 208 of the judgment itself, in the sense that we could be dealing with either a “penalty” or an “enforcement measure”, depending on the conditions of its implementation. 5. Admittedly, the judgment also refers to measures which are “static”, or not susceptible to change after the time when they are ordered, more specifically targeting measures which are imposed on a person convicted of a “criminal offence” and the criterion of the procedures involved in its making. However, there is something else: in order to remain within one of the categories used by the Court, even in terms of the measure itself, a distinction might be drawn between a static element and a dynamic element after the adoption of the said measure. Yet these terms seem rather unsuited to reflecting the reality underlying the punishment envisaged by Article 7. It would appear more appropriate to distinguish between the actual nature – under domestic legislation – of a measure ordered (which is its abstract aspect) and its effective implementation (which is its concrete aspect). 6. It is essential to ascertain the actual nature of a measure in the light of Article 7, because this marks a necessary stage in delimiting the respective scopes of that provision and of Article 5 (1) of the Convention. The latter prohibits, in principle, depriving an individual of his liberty, but authorises it under certain conditions. Those conditions include, in particular, that, set out in indent (e), of persons of unsound mind, who may be detained under very specific conditions as defined by the case-law of the Court (see paragraphs 126 et seq. of the judgment). 7. The starting point in the Ilnseher case was as follows: the applicant was first of all convicted under the German Penal Code and subsequently sentenced to “preventive detention”, which, according to the classification used in German legislation, is not a criminal penalty but an amending measure which, when applied as in the present case to a psychiatric patient, must be carried out in a hospital providing adequate psychological and psychiatric treatment. In fact the applicant, immediately after the measure was ordered, had been in a prison providing no medical support, and had only afterwards been transferred to an appropriate establishment providing treatment worthy of the name. 8. The Court was called upon to adjudicate on the compatibility with the Convention of that second phase of detention under Article 7, which prohibits penalties which are not prescribed by law and those imposed retroactively. In the instant case the issue was the “penalty” categorisation, to the extent that if the Court reached the conclusion that the measure had not amounted to a penalty, there had been no breach of Article 7. The question was whether, in assessing whether or not the measure constituted a penalty, the Court could confine itself to the classification used by domestic law and, if – as was actually the situation in the present case – domestic law did not classify the measure as a criminal penalty, immediately rule out the applicability of Article 7, going on to assess whether the conditions of detention had been compatible with the requirements of Article 5 § 1 (e). 9. Such an approach would have excessively restricted the scope of Article 7, and, furthermore, would have allowed the State to escape that provision (from which no derogation is permissible under Article 15 of the Convention, whereas the reinforced protection laid down in the latter provision is not applicable to Article 5) by merely laying down in its legislation that certain detention measures did not come under criminal law. It would be underestimating the Court’s power and duty to confer an autonomous meaning on the concepts used in the Convention, which process is vital if the Court is to apply the same standards to all member States (and which also prevents States from attempting to elude the application of the Convention, or of specific provisions thereof, by resorting to abusive or erroneous characterisations). 10. In fact, in order to characterise a measure as a penalty, the Court merely regards the classification of a measure under domestic legislation as one stage (among others, for example the imposition of the measure following a criminal conviction), which stage might be described as “abstract”. Where a measure is not classified as a penalty, the Court will consider how it is conceived: it will assess the nature and purpose of the measure (in particular its preventive or punitive intent), the procedures involved in the making and implementation of the measure, and its severity (see Welch v. the United Kingdom, 9 February 1995, § 28, Series A no. 307‑A, and Del Río Prada v. Spain [GC], no. 42750/09, § 82, ECHR 2013). 11. And indeed, in the present case, the Court assessed not only how the measure was conceived but also how it was enforced, pushing its autonomous assessment of the actual situation to very great lengths. The conclusion it reached is that the nature of a measure can change in the course of its enforcement. Depending on its mode of enforcement, it can successively take on the characteristics of a penalty, a therapeutic measure, possibly reverting to being a penalty, and so on. This is what the Court refers to as the “dynamic” aspect of the measure. 12. There is one obvious drawback: if a measure can change in nature during its period of enforcement – in the worst case changing several times at very short intervals – the definition of a “penalty” is liable to suffer, or even be deprived of all effective substance. 13. That being the case, could we consider a two-stage assessment, starting with an examination of the characterisation of the measure in national legislation – a penalty or a measure – and then go on to consider how national legislation provides for its enforcement, after which the Court could effect an autonomous interpretation of the domestic legal provisions in order to decide whether, under Article 7 of the Convention, it is a case of a penalty or another measure? That is where the examination of the measure’s compatibility with Article 7 would end. If it transpired from the assessment that domestic law classified the measure as non-criminal and provided for a mode of execution lying outside the criminal-law field, Article 7 would not have been violated. And if the concrete, de facto mode of enforcement of a measure classified in law as “therapeutic” amounted to a deprivation of liberty at variance with Article 5 (1) (e), the latter provision would have been breached rather than Article 7. 14. We might wonder whether such an approach covers all the existing realties in this sphere and the whole range of situations which can arise, and in particular whether it covers the present case. In the instant case, not only did the law classify the measure as “preventive detention” and not as a penalty, but it also prescribed appropriate treatment in an establishment specialising in psychological disorders. However, as regards the facts, pursuant to a systematic and consistent administrative practice, such measures were – for an initial period, until the applicant was transferred to a new suitable establishment – enforced in prisons that did not offer appropriate treatment. The situation was not accidental, but structural: all persons held in preventive detention who were suffering from a mental disorder were systematically and invariably held in prisons, for the simple reason that no specialised establishments existed. In view of that situation, can we consider that the measure was not a penalty, knowing that in line with systematic administrative practice it was enforced in exactly the same way as a penalty? Should we not take into account all the structural facts and conclude that the measure indeed constituted a penalty? 15. If we consider that a measure which is classified as therapeutic by domestic law, and which, moreover, provides for its enforcement in an appropriate establishment, but which is systematically enforced in a prison, constitutes a penalty, does any mode of execution which does not comply with domestic legislation providing for a measure other than a penalty nonetheless constitute a penalty if, in practical terms, such execution is akin to a deprivation of liberty, which is incompatible with that provision? The answer is no: if the deprivation of liberty infringes the requirements of domestic law and is not the subject of a general and systematic administrative practice, in other words if the deprivation of liberty is proved to be a situational, accidental, short-lived and non-systematic phenomenon, it breaches the requirements of Article 5 (1) (e). 16. Therefore, the criterion for the applicability of Article 7 would appear, above and beyond the classification of a detention measure under national law, to be the systematic or structural nature of the enforcement of the measure: if, under the autonomous criteria applied by the Court, a therapeutic measure is systematically enforced – either pursuant to national law (and even if the latter states that such measure does not constitute a penalty), or in line with a general administrative practice – according to procedures classifying it as a penalty under the criteria applied by the Court, it constitutes a penalty for the purposes of Article 7. If the actual mode of enforcement is unlawful but is not part of a system, it constitutes deprivation of liberty contrary to Article 5 (1) (e). 17. The application of the aforementioned criterion looks complicated and unwieldy at first sight, but one may doubt whether that really is the case. It has the advantage of not unduly reducing the scope of Article 7 and allowing the Court to probe deeply into the realities of the case. It also permits the conclusion that if the administrative practice changes during the enforcement of a measure the nature of the measure may also change. In the present case, after the radical changes brought in by the German authorities, a measure which, by dint of its mode of enforcement, fell under criminal law changed its nature and became a therapeutic measure. 18. Does such a system under which a measure can change its nature during its enforcement comprise any risks, for instance where an unsavoury regime has attempted to use it to pretend that measures hitherto classified as penalties are therapeutic? In fact, there would not appear to be any such risk, and the system in question could even reinforce the applicability of Article 7 (from which no derogation is permissible, which is not the case of Article 5). There are two possible scenarios: either a penalty becomes a measure or a measure becomes a penalty. In both cases, by definition, the law must classify the measure ab initio as a measure and not as a penalty, otherwise the Article 7 criteria are met ipso facto. In the first scenario, which applies to the instant case, unacceptable, unlawful conditions of enforcement are replaced by appropriate conditions. The Court will assess whether the latter are indeed appropriate. It is difficult to imagine a regime “abusing” the possibility of improving the conditions of enforcement. In the second case, the administrative practice degenerates and the formerly acceptable treatment of persons subject to a therapeutic measure is enforced in a non-therapeutic manner rendering it akin to imprisonment. The Court will hold that the measure now falls foul of Article 7 because it has all the hallmarks of a penalty. This would expose an illiberal regime to tighter supervision by the Court. 19. In conclusion, I am in full agreement with the passages in the judgment stating that a measure may change in nature in the course of its execution, but it should be made clear that that is only possible if (1) domestic law classifies the measure as therapeutic; (2) domestic law provides for a mode of enforcement which, according to the Court’s autonomous benchmarks, rules out classification as a penalty; and (3) the consistent administrative practice enables the Court to rule out classification as a penalty under an autonomous assessment. In the present case, over the period to be assessed by the Court, those three concurrent criteria were fulfilled. PARTLY DISSENTING OPINION OF JUDGE SICILIANOS Translation 1. I voted with the majority for a finding of no violation of Article 5 § 1 of the Convention, agreeing with the conclusion that in so far as the applicant’s subsequently-ordered preventive detention was enforced pursuant to the impugned 20 June 2013 judgment up until 18 September 2014 in the Straubing detention centre, it was justified under Article 5 § 1 (e). Apart from the fact that the applicant suffers from a mental disorder and that he is still dangerous, the decisive argument in reaching that finding was the considerable improvement in the applicant’s conditions of detention over the period under review, including, above all, his placement in an establishment suited to the needs of psychiatric patients. 2. It is clear from the Court’s established case-law that conditions of detention are an important factor for the lawfulness of detention. Thus the Court has found on several occasions that detention ordered “in accordance with a procedure prescribed by law” may prove incompatible with Article 5 § (1) of the Convention if the conditions of detention are (or become) inappropriate (see, among many other authorities, the leading judgment in the case of Bouamar v. Belgium, 29 February 1988, Series A no. 129). That was explicitly acknowledged by the respondent Government in the present case in its unilateral declaration concerning the period between 3 August 2012, when the Regional Court adopted its judgment, and 20 June 2013. The contrary proposition – that is to say a finding that unlawful detention has become lawful because of a substantial improvement in the conditions of detention – is, on the face of it, more difficult to accept. However, the arguments set out in paragraphs 162-169 of the judgment in particular convinced me that the applicant’s detention during the period in issue had been justified under Article 5 (1) (e) of the Convention. 3. It would, however, be a quantum leap to conclude that the positive developments in the applicant’s conditions of detention, particularly his placement in an appropriate therapeutic institution, also suffice to justify the impugned detention in the light of Article 7 § 1 of the Convention. It should be remembered that the impugned facts date back to 1997, when the applicant was nineteen years old, and that he was convicted in 1999. At the time, the Law on Youth Courts had not authorised preventive detention orders for minors or young adults such as the applicant. That option has only been available since 12 July 2008, when the Act of 8 July 2008 introducing subsequent preventive detention in cases of convictions based on criminal law applicable to young offenders came into effect (see paragraphs 55 and 56 of the judgment). The 3 August 2012 order placing the applicant in preventive detention was based on that new law. Consequently, it is obvious that the applicant’s situation was affected by a legislative provision which had not been applicable at the time of the offence. Now, according to Article 7 § 1 of the Convention “... a heavier penalty (shall not) be imposed than the one that was applicable at the time the criminal offence was committed”. The whole question is therefore whether the impugned measure amounted to a “penalty” within the autonomous meaning of that concept under the Convention. 4. As the Court pointed out in paragraph 203 of the judgment: “The concept of ‘penalty’ in Article 7 is autonomous in scope. To render the protection afforded by Article 7 effective the Court must remain free to go behind appearances and assess for itself whether a particular measure amounts in substance to a ‘penalty’ within the meaning of this provision (see Welch v. the United Kingdom, 9 February 1995, § 27, Series A no. 307‑A; Jamil v. France, 8 June 1995, § 30, Series A no. 317‑B; and Del Río Prada, cited above, § 81). The wording of the second sentence of Article 7 § 1 indicates that the starting-point – and thus a very weighty factor (see Glien, cited above, § 121; and Bergmann, cited above, § 150) – in any assessment of the existence of a penalty is whether the measure in question was imposed following conviction for a ‘criminal offence’. Other relevant factors are the characterisation of the measure under domestic law, its nature and purpose, the procedures involved in its making and implementation, and its severity (see Welch, cited above, § 28; Van der Velden v. the Netherlands (dec.), no. 29514/05, ECHR 2006‑XV; and Kafkaris, cited above, § 142).” 5. As regards the first factor mentioned above, the judgment reiterates that the impugned measure was “linked to the conviction – and thus ‘following’ the latter – as it was a precondition for the preventive detention order under section 7 (2) of the Juvenile Courts Act (see paragraph 56 above) that the young offender concerned had been imposed a sentence of at least seven years for a felony, in particular, against life, physical integrity or sexual self-determination” (see paragraph 215 of the judgment). 6. Concerning the criterion on procedures involved in the making of the impugned measure, it should be noted that the measure was made by a criminal court in accordance with the applicable provisions of the Code of Criminal Procedure. Moreover, as noted in paragraph 215 of the judgment, “the procedure concerning the offender’s preventive detention had to be based on evidence obtained prior to the end of the term of imprisonment imposed for the said offence.” 7. In short, the criteria which the judgment describes as “static” or “not susceptible to change after the point in time when the measure was ordered” – that is to say the existence of a measure imposed following a conviction for an offence and the criterion on procedures involved in its making – (see paragraph 208 of the judgment) argue in favour of classifying the measure in question as a “penalty” for the purposes of Article 7 of the Convention. 8. We must now examine the so-called “dynamic” criteria, that is to say the nature, the aim and the severity of the impugned measure. 9. As regards the “severity” criterion, I first of all note that its characterisation as “dynamic” is based on the fact that the applicable provisions specify neither a maximum nor a minimum length of preventive detention (see paragraphs 232 and 234 of the judgment). In other words, the detention can be terminated on the basis of the subsequent assessment of the applicant’s situation and of the danger which he represents, in the case of a positive assessment, but on the other hand it might – theoretically at least – continue for the rest of his life. That is why the majority agrees that preventive detention has “therefore remained among the most serious measures which could be imposed under the Criminal Code” (see paragraph 232 of the judgment). 10. Personally, I doubt that the severity of preventive detention constitutes a “dynamic” criterion. I would point out, in that regard, that the third Engel criterion has regard to the maximum severity of the measure, in accordance with the applicable provisions. In other words, the third Engel criterion – which constitutes the principal source of inspiration in the present case – is not flexible or changeable but inflexible and rigid. If it were to be applied as it stands in the instant case, regard would have to be had solely to the fact that the applicable law does not set out any maximum period and that the preventive detention can consequently continue for the person’s whole life. 11. At any event, the applicant had finished serving his sentence on 17 July 2008 and today, more than ten years later, he is still in detention. Under those circumstances I consider that the severity of the impugned measure is a further argument in favour of classifying it as a “penalty”. Although the statistics mentioned in paragraph 232 of the judgment – to the effect that at March 2017 591 persons were being held in preventive detention in Germany, which at the time had a population of 81 million – indicate that the impugned measure is used sparingly, from the legal point of view those statistics cannot alter the characterisation of preventive detention as a “penalty” within the autonomous meaning of the concept. 12. We now come to the nature and the aim of preventive detention. This is the principal criterion on which the majority relied to find that the impugned detention did not constitute a “penalty”. In my view, it might nevertheless be legitimate to ponder whether that criterion, which is “dynamic” and therefore flexible and changeable, could conceivably counterbalance the other three criteria mentioned previously. In other words, can the nature and aim of the detention turn a “penalty” into a mere preventive measure falling outside the scope of Article 7 of the Convention? 13. In attempting to answer this crucial question, I note that in rounding up the discussion of the nature and aim of the impugned measure, the majority accepts that “‘ordinary’ preventive detention which is not executed with a view to treating the detainee’s mental disorder, even if implemented in accordance with the new legislative framework, still constitutes a penalty for the purposes of Article 7 § 1 of the Convention. The improved material conditions and care do not, in these circumstances, suffice to erase the factors indicative of a penalty” (see paragraph 228 of the judgment). In other words, the decisive point in “eras[ing] the factors indicative of a penalty” is not so much the improvement of material conditions and care – which can fluctuate over time and is therefore unreliable – but rather the aim of the measure, which must focus on “treating the detainee’s mental disorder”. 14. With specific regard to the aim of the preventive detention, the judgment would appear to indicate that that aim is in fact twofold. As paragraph 223 of the judgment points out, “[t]reatment aimed at reducing the threat these persons pose to the public to such an extent that the detention may be terminated as soon as possible is now at the heart of that form of detention, both in the interest of the detainee and in that of the public.” In other words, preventive detention is geared, first of all, to reducing the danger which individuals such as the applicant pose to society, and secondly to helping the latter to reintegrate into society. The “collective interest” takes precedence over the interests of the detainee. 15. This overall approach would seem to explain the majority’s attitude to the relative inertia of the authorities at the Straubing detention centre. Indeed, it emerges from the judgment and the case-file that although the staff at the centre made themselves available to the applicant and provided him with “adequate” and “sufficient” treatment (see paragraph 221 of the judgment), it would not appear that during the impugned period the staff in question offered the applicant any concrete, practical therapeutic protocol or tried to persuade him to follow such a protocol by explaining that it was in his own interests to do so. In substance, the staff would appear to have told the applicant “if you decide to accept treatment, we are there to treat you”. Is such an attitude sufficient to pursue the therapeutic aim of preventive detention vigorously enough to erase any other weighty arguments in favour of characterising this measure as a “penalty”? With all due respect to the majority, I think not. I consider that the therapeutic aim criterion, which seems to constitute the majority’s main argument, is in fact a fairly weak criterion – at least in the particular circumstances of the present case. 16. More generally, the use of a criterion which is “dynamic”, and therefore ongoing and changeable by definition, could well lead to uncertainties incompatible with the substance of the nullum crimen nulla poena sine lege principle. It is almost platitudinous to reiterate that that principle is the cornerstone of criminal law and criminal proceedings, and that it forms part of the hard core of the Convention, as a provision from which no derogation is permissible. Any attempt to limit its scope would require recourse to criteria which are reliable and stable enough to ensure the certainty of the law necessary in criminal matters. 17. For all those reasons I believe that the impugned measure was a “penalty”, that it fell within the ambit of Article 7 of the Convention, and that there was a violation of that provision in the instant case. DISSENTING OPINIONOF JUDGE PINTO DE ALBUQUERQUEJOINED BY JUDGE DEDOV Table of contents I. Introduction (§ 1) First Part – Testing preventive detention under domestic law (§§ 2-55) II. The history of preventive detention (§§ 2-35) A. Forgetting the dark past (§§ 2-20) (i) Fighting the “parasites in the people’s body” (§§ 2-11) (ii) “Lock up - and forever” (§§ 12-18) (iii) Going beyond Hitler (§§ 19-20) B. The slick response to M. (§§ 21-31) (i) The legislative response (§§ 21-24) (ii) The judicial response (§§ 25-28) (iii) The Government’s response (§§ 29-31) C. Preliminary conclusion (§§ 32-35) III. The dogmatic of preventive detention (§§ 36-55) A. Adult and young adult offenders (§§ 36-48) (i) Back to the “purposeless majesty” of prison (§§ 36-41) (ii) The manipulation of psychiatry (§§ 42-44) (iii) Frustrating legitimate expectations (§§ 45-48) B. Juvenile and young adult offenders (§§ 49-52) (i) No proportionality-based policy (§ 49) (ii) Failing the educational purpose (§ 50) (iii) The inequality of treatment vis-a-vis adults (§§ 51-52) C. Preliminary conclusion (§§ 53-55) Second part – Testing preventive detention under international law (§§ 56-130) IV. The context of the dialogue between Strasbourg and Karlsruhe (§§ 56-89) A. The constitutional law context (§§ 56-74) (i) The international-law-friendliness of the Basic Law (§§ 56-59) (ii) The caveat of multipolar human rights’ relations (§§ 60-61) (iii) The Convention-unfriendly interpretation of preventive detention (§§ 62-74) B. The international and comparative law context (§§ 75-85) (i) The United Nations standards (§§ 75-79) (ii) The Council of Europe standards (§§ 80-83) (iii) The comparative law standards (§§ 84-86) C. Preliminary conclusion (§§ 87-89) V. The Strasbourg Court on a slippery slope (§§ 90-128) A. The new illiberal criminal-law standards (§§ 90-110) (i) The minimalist understanding of the principle of legality (§§ 90-94) (ii) The “erasure” of the autonomous meaning of “penalty” (§§ 95-107) (iii) The catch-all construction of “person of unsound mind” (§§ 108-110) B. The overly repressive approach to the present case (§§ 111-126) (i) The biased determination of the applicant’s “mental illness” (§§ 111-115) (ii) The unlawfulness of the applicant’s detention order (§§ 116-121) (iii) The “special sacrifice” of the applicant’s preventive detention (§§ 122-126) C. Preliminary conclusion (§§ 127-128) VI. Final conclusion (§§ 129-130) I. Introduction (§ 1) 1. I voted for a violation of Article 5 § 1 (on account of the applicant’s preventive detention from 20 June 2013 onwards), Article 6 § 1 (on account of the lack of impartiality of Judge P.) and Article 7 § 1 (on account of the applicant’s mentioned preventive detention) and for no violation of Article 5 § 4 of the European Convention on Human Rights (“the Convention”) (on account of the duration of the proceedings for review of the applicant’s provisional preventive detention). My separate opinion concerns only the dissenting vote. It consists of two parts. The first part is devoted to the study of preventive detention under domestic law, with regard to adults, young adults (Heranwachsenden)[2] and juveniles (Jugendlichen),[3] since it seems to me that the majority judgment has not fully taken into account the historical background (II.) and the dogmatic framework (III.) of this measure and therefore misunderstood its nature and purposes and underestimated its theoretical shortcomings and practical deficiencies. The second part of the opinion presents the context of the dialogue between the European Court on Human Rights (“the Court”) and the Federal Constitutional Court of Germany (“the Constitutional Court” or “the Karlsruhe court”) on preventive detention (IV.A.), discussing the latter’s Convention-unfriendly interpretation of preventive detention, as well as the international- and comparative-law context of that dialogue (IV.B.). Special emphasis is placed on the contribution of the United Nations and the Council of Europe to this dialogue and, most importantly, to their formal positions on the German preventive detention system. Against the background of the Court’s minimalist understanding of the principle of legality, the opinion then assesses how the majority erase the autonomous meaning of the “penalty” notion set out in Article 7 of the Convention and instead put forward a catch-all construction of the Article 5 concept of “person of unsound mind” (V.A.). Finally, on the basis of the collected international, comparative and constitutional law materials, the opinion analyses the domestic authorities’ overly repressive approach to the proceedings concerning the applicant’s retrospective[4] preventive detention order, which the majority confirmed by large (V.B.). In my view, the complaint under Article 7 logically precedes that under Article 5, because the former pertains to the nature and purpose of the applicant’s preventive detention in the Straubing Prison preventive detention centre from 20 June 2013 onwards, while the latter refers to the execution of that detention in an adequate facility and in a proper manner.[5] At all events, this opinion maintains that there was a violation of both provisions (VI.). First Part – Testing preventive detention under domestic law (§§ 2-55) II. The history of preventive detention (§§ 2-35) A. Forgetting the dark past (§§ 2-20) (i) Fighting the “parasites in the people’s body” (§§ 2-11) 2. Introduced in 1933,[6] preventive detention of “habitual offenders”[7] was one of the two main instruments of the national socialist “criminal law of the enemy” (Feindstrafrecht), alongside with “defensive detention” (Schutzhaft). The crucial difference between these instruments of Nazi criminal policy was that preventive detention could be imposed by the courts in addition to a prison sentence while “defensive detention” was imposed by the SA,[8] the SS[9] and the Gestapo,[10] independently of any pending or future criminal procedure and without any judicial oversight or time limitation. In the new framework of the German two-track system (zweispurigen System) of criminal sanctions, preventive detention was considered as a “custodial measure of correction and prevention” (freiheitsentziehende Maßregel der Besserung und Sicherung) applicable whenever the offender’s conduct could be perceived as an “act symptomatic of dangerousness” (Symptomtat für die Gefährlichkeit). The measure was therefore built upon the offender’s “tendency to commit criminal offences” (Hang, Straftaten zu begehen). 3. The Nazi Act on Habitual Offenders also introduced retrospective preventive detention, in two types of cases: first, when an offence had been committed before 1 January 1934 and the conditions for preventive detention were met, the court should impose it when public safety so required,[11] and second, the court could retrospectively order (nachträglich anordnen) preventive detention for specific recidivists who were serving a prison sentence as of 1 January 1934, when public safety so required.[12] 4. Preventive detention was widely applied to adults, even retrospectively.[13] People in preventive detention (the so-called Sicherungsverwahrten) were “unworthy life in the highest potency” (unwertes Leben in höchster Potenz), according to Hitler’s Minister of Justice Otto Georg Thierack,[14] who also considered them as “parasites on the people’s body” (Parasit am Volkskörper) in his famous Richterbrief no. 4 and called for “the extermination of these foreign bodies of the community” (Vernichtung dieser Fremdkörper der Gemeinschaft).[15] In 1942, Minister Thierack and the SS leader Heinrich Himmler agreed to the handover of “anti-social elements” in the prison system, including those in preventive detention (Sicherungsverwahrten), to the police for “extermination by work” (Auslieferung asozialer Elemente aus dem Strafvollzug an den Reichsführer SS zur Vernichtung durch Arbeit)[16]. In the concentration camp Mauthausen alone 6 736 people in preventive detention (SV-Häftlinge) died in the years leading up to February 1944.[17] The introduction of the preventive detention by the Nazi regime was also closely linked to its infamous euthanasia programme which targeted such criminals, among other groups of people.[18] 5. The 1939 Order on Protection against Dangerous Juvenile Criminals (Verordnung zum Schutz gegen jugendliche Schwerverbrecher) and the 1943 Order on the Simplification and Harmonisation of the Criminal Law relating to Juvenile Offenders (Verordnung über die Vereinfachung und Vereinheitlichung des Jugendstrafrechts) made it possible to apply the general criminal law to juvenile offenders and therefore also to impose preventive detention. 6. After the end of the Second World War, the Allied Control Council did not revoke preventive detention,[19] in spite of the repeated criticisms of “fraudulent labelling” (Etikettenschwindel) levelled against it, in view of its severity and the difficulty of distinguishing it from a prison sentence.[20] In the German Democratic Republic, preventive detention was repealed and replaced by other provisions,[21] whereas the Federal Republic of Germany kept it. 7. In January 1953,[22] the Constitutional Court decided that the Basic Law was not breached by the lack of differentiation between the execution of punishment in a penitentiary for penal servitude (Zuchthaus) and preventive detention, despite the different legal purpose of the two sanctions. For security reasons it accepted this lack of differentiation as an exception to the general obligation of treating different cases differently, in accordance with the principle of equal treatment (Article 3 of the Basic Law). 8. The Juvenile Courts Act of 4 August 1953 prohibited the imposition of preventive detention on juveniles[23] and on young adults being dealt with under the criminal law relating to juvenile offenders[24], but it remained permissible for young adults who were convicted under the general criminal law,[25] until the First Act to Reform Criminal Law (Erstes Gesetz zur Reform des Strafrechts), of 25 June 1969, also prohibited this form. 9. In the Second Act to Reform Criminal Law (Zweiten Gesetz zur Reform des Strafrechts), of 4 July 1969, preventive detention became a measure of last resort (ultima ratio) in the German two-track system of sanctions, and a maximum of 10 years was introduced.[26] 10. Following a memorable decision of the Constitutional Court of 14 March 1972,[27] the Act on the Execution of Detention and the Custodial Measures of Correction and Prevention (Gesetz über den Vollzug der Freiheitsstrafe und der freiheitsentziehenden Maßregeln der Besserung und Sicherung) entered into force on 1 January 1977. It included only seven special provisions on preventive detention (sections 129-135), which, moreover, were subject to a reservation as regards feasibility. When drafting the Act, the legislator justified the paucity of those special provisions with the 1953 decision of the Constitutional Court, mentioned above.[28] According to the legislator, preventive detention lacked any therapeutic purpose, unlike other custodial measures of correction and prevention (Articles 63 and 64 of the Criminal Code), which should be executed outside a prison environment, in view of their therapeutic nature. 11. An attempt to replace preventive detention by an autonomous, compulsory, freedom-limiting social therapy measure for the treatment of offenders with severe personality disorders, enshrined in the new Article 65 of the Criminal Code, was discontinued in 1984, the provision being deleted and the solution downgraded to an “optional mode of execution” (Vollzugslösung).[29] In addition to the financial costs that such alternative would entail, the main objection raised was the problematic nature of compulsory therapy for offenders who had been declared sane and therefore criminally responsible. (ii) “Lock up - and forever” (§§ 12-18) 12. Following a series of high-profile murder cases, the formal requirements of preventive detention were softened and the former 10-year limit was removed in 1998, which meant that preventive detention became effectively an order of indefinite duration.[30] The legislator justified that removal on the grounds that the new law did not impact the measure itself, but only its duration, and therefore the constitutional protection against retrospective legislation was not applicable with the same degree of cogency.[31] In the following few years, five German Federal Länder enacted laws to detain prospective recidivists in prison.[32] 13. In July 2001, Bundeskanzler Gerard Schröder reacted to the murder of an eight-year-old and the burning of its dead body with these words: “there can only be the maximum penalty for a person who puts himself outside the human community in such a way” (Wer sich so außerhalb der menschlichen Gemeinschaft stellt, für den kann es nur die Höchststrafe geben).[33] The solution was clear for the politician: “lock up - and forever” (wegschließen - und zwar für immer), because such conduct showed in itself that the offender was “not recoverable” (nicht therapierbar). The punitive mind-set of the Chancellor could not be more transparent. The legislator very quickly followed suit. Accordingly, in 2002, the German Parliament introduced a deferred order of preventive detention, under which the sentencing court may defer the application of a future order of preventive detention, when at the time of the judgment it is probable that the convicted person poses a danger to the general public due to his or her tendency to commit serious offences.[34] Under the Act in question, the final decision as to whether preventive detention is imposed or not is made by the end of the prison term, and furthermore, preventive detention can now be imposed in addition to life-long imprisonment. 14. The following year, deferred preventive detention was extended to young adults who were sentenced under general criminal law.[35] Like the general measure for adults, the new measure could be applied on the basis of the offender’s dangerousness at the time of the judgment. 15. By judgment of 5 February 2004,[36] the Constitutional Court confirmed this policy trend by deciding that removing the 10-year limit with retrospective effect was not unconstitutional, since it breached neither the principle of human dignity (Article 1 (1) of the Basic Law),[37] nor the right to liberty (Article 2 (2) of the Basic Law),[38] or the principle of prohibition of absolute retroactivity (absolute Rückwirkungsverbot) (Article 103 (2) of the Basic Law),[39] or the principle of protection of legitimate trust (Vertrauensgrundsatz) (Article 2 (2) of the Basic Law). In the court’s view, measures of correction and prevention, like preventive detention, were not penalties (Strafen) within the meaning of Article 103 (2) of the Basic Law and its predecessor, Article 116 of the Weimar Constitution, and could therefore be applied retrospectively.[40] The basic assumption was that the preventive detention was “linked” (verknüpft) to unlawful and reproachable conduct on the part of a sane person, but this “link” (Verknüpfung) did not give preventive detention the character of a penalty (Strafe).[41] The intra-systematic constitutional incoherence that Article 74 (1) No. 1 of the Basic Law subsumed measures of correction and prevention under the concept of “criminal law” (Strafrecht), while those same measures were not considered as “penalties” for the purposes of Article 103 (2) of the same Basic law, was dismissed with the argument that the former provision concerned the distribution of legislative competences between the Federal State and the Federate States and had no “liberty-guaranteeing function” (freiheitsgewährleistende Funktion).[42] Yet the Karlsruhe court formulated a caveat: despite the fact that a preventive detention order must be executed in accordance with the general prison rules, as determined by section 130 of the Act on the Execution of Detention and the Custodial Measures of Correction and Prevention (cited above), there should be a “distance” (Abstand) between the execution of the preventive detention and that of a prison sentence, “which makes the special prevention purpose of preventive detention clear for the detained person and society at large”.[43] This is the so-called “distance requirement” (Abstandsgebot). Although the constitutional judges found that it was not for the court to determine the practical features of such principle, they expressed the view that in case of “specially prolonged” preventive detention the “hopeless” detainee should be provided with “additional facilities” in order to guarantee “minimum quality of life”.[44] 16. A few days later, on 10 February,[45] another judgment of the same court decided that preventive detention comes under criminal law for the purposes of Article 74 (1) No. 1 of the Basic Law, and is consequently a matter for Federal legislation. Yet the Constitutional Court declared the impugned Länder laws regarding preventive detention, namely the Bavarian Straftäterunterbringungsgesetz[46] and the Saxony-Anhalt Unterbringungsgesetz[47], as merely incompatible (unvereinbar) with the Basic Law, according to section 31 (2)(3) of the Federal Constitutional Court Act, and not as null and void (nichtig), according to section 95 (3)(1) of the same Act, in order to avoid the immediate release of all detained persons under the impugned laws.[48] Furthermore, the court determined that the said laws could remain in force until 30 September 2004 with a view to allowing the competent Federal organ to repeal and replace them by other constitutionally compatible legislation.[49] Adopting a proactive stance on the matter, the Constitutional Court instructed the Federal legislator to consider, within a prescribed deadline, the possibility of taking a retrospective decision on the continued detention of the dangerous offenders still detained.[50] 17. Still in 2004, the German Parliament diligently complied with the instruction and approved the retrospective applicability of preventive detention without a previous deferred order when new facts (nova) are disclosed before the custodial sentence has been fully served demonstrating that the prisoner poses a danger to the public.[51] The new law entered into force one month before the deadline set by the Constitutional Court. The new measure was extended to both adults and young adults sentenced under the general criminal law. It could be applied to multiple offenders (first constellation of cases: Article 66b § 1 of the Criminal Code) as well as to first offenders (second constellation of cases: Article 66b § 2 of the same Code), and when confinement in a psychiatric hospital was terminated because the condition which excluded or reduced the defendant’s criminal responsibility and on which the confinement was based did not exist or no longer existed (third constellation of cases: Article 66b § 3 of the same Code). 18. By decision of 23 August 2006,[52] the Constitutional Court considered that Article 66b § 2 of the Criminal Code (the second constellation of cases) did not violate the ban on the retrospective application of criminal laws and was in conformity with the protection of legitimate expectations guaranteed in a State governed by the rule of law. The legislator’s decision, to the effect that the paramount public interest in effective protection of the public from very dangerous offenders outweighed the reliance of the convicted offender on the fact that the law would not be changed to his or her detriment so as to allow his or her continued detention, was compatible with the Basic Law. The Constitutional Court further considered that the said provision did not violate the right to liberty of the person concerned. The legislator was authorised by the Basic Law to deprive of his or her liberty a person who is expected to commit offences against life or limb or the liberty of citizens, having regard to the principle of proportionality. As Article 66b § 2 of the Criminal Code applied only in very exceptional cases, that provision had to be considered as a proportionate restriction on the right to liberty. With similar arguments, the constitutionality of the provision on the first constellation of cases was confirmed by a decision of Constitutional Court of 22 October 2008[53] and that on the third constellation of cases was confirmed by a decision of 5 August of 2009.[54] (iii) Going beyond Hitler (§§ 19-20) 19. In July 2008 retrospective preventive detention was further extended to juveniles aged between fourteen and eighteen,[55] including when confinement in a psychiatric hospital had been terminated because the condition which excluded or reduced the defendant’s criminal responsibility and on which the confinement was based did not exist or no longer existed.[56] Contrary to the legislation on adults, the juvenile regime lost any connection to “habitual offenders”, since the “tendency” (Hang) to commit offences was not required. In addition, the juvenile regime departed from the adults’ law which required that before the end of the execution of the prison sentence facts “have become known” (werden ... vor Ende des Vollzugs dieser Freiheitsstrafe Tatsachen erkennbar) which are indicative of the prisoner’s dangerousness. In the Juvenile Courts Law the wording was changed to “facts are known ... before the end of youth custody ...” (Sind ... vor Ende des Vollzugs dieser Jugendstrafe Tatsachen erkennbar). The important difference is that, according to juveniles’ law, the facts had to be known before the end of the time in prison, but did not have to be new at that point in time.[57] 20. Among the many criticisms levelled at the governmental proposal during the debate before the competent parliamentary commission of the Bundestag,[58] one expert pointed out that, if adopted, this measure would go even further than Nazi legislation had.[59] Others called it a “legislative trick” (legislativer Kunstgriff)[60] and an “absurdity” (Unding).[61] B. The slick response to M. (§§ 21-31) (i) The legislative response (§§ 21-24) 21. As a beacon of liberal criminal law reform, the Court reacted to this trend. In M. v. Germany,[62] the Court put an end to Germany’s criminal law policy trend of never-ending expansion of preventive detention, by holding that the removal of the 10-year limit with retrospective effect breached Article 7 § 1 of the Convention. The argument was simple: preventive detention was, in the “law in the books”, about punishing convicted offenders on the basis of their criminal past and, in the “law in action”, its execution was not very different from that of a prison sentence.[63] Therefore, it should be considered as a penalty for the purposes of Article 7 of the Convention and could not be applied retrospectively.[64] Looking back in time, the judges delivered a strong rebuke to the legislator for having failed to implement the distance requirement, set out in the constitutional judgment delivered five years before. In addition, there was no sufficient causal connection between the applicant’s conviction by the sentencing court and his continued deprivation of liberty beyond the ten-year period in preventive detention. His continued detention was therefore not justified under sub-paragraph (a) of Article 5 § 1 of the Convention. Nor was the applicant’s preventive detention beyond the ten-year point justified under sub-paragraph (c) of Article 5 § 1, because the applicant’s potential future offences were not sufficiently concrete and specific as regards, in particular, the place and time of their commission and their victims.[65] Finally, paragraph (e) could not make the detention lawful either, because the applicant did not have a mental disorder and the domestic courts did not refer to any such disorder.[66] 22. The response of the German authorities was threefold. The legislative response aimed at an overhaul reform of preventive detention.[67] The main changes were as follows. Firstly, the application of primary preventive detention under Article § 66 of the Criminal Code was substantially narrowed. Secondly, the deferred preventive detention system was expanded. Under certain circumstances, deferred preventive detention under Article 66a of the Criminal Code became possible for offenders who are only sentenced to a five-year prison term. Thirdly, retrospective preventive detention under Article 66b of the Criminal Code and section 106 of the Juvenile Courts Act was removed, with the exception of cases where committal to a psychiatric hospital was terminated because the condition which excluded or reduced the defendant’s criminal responsibility and on which the confinement was based did not exist or no longer existed. However, section 316(e)(1) of the Introductory Act to the Criminal Code laid down that the new provisions were to apply only if the offence, or at least one of the offences, for the commission of which preventive detention was to be imposed or deferred had been committed after the Act entered into force on 1 January 2011. Offences committed before this time were still subject to the earlier law. 23. Additionally, a new measure of “therapy placement” (Therapieunterbringung)[68] was introduced with the explicit aim of keeping people in detention who would otherwise be released from preventive detention under the Court’s case-law. As can be deduced from the wording of the law itself, the aim of this legislation was to continue the deprivation of liberty for more serious offenders with an order of preventive detention, which could no longer be maintained under Article 5 § 1 (a) of the Convention in the wake of M. v. Germany.[69] Since referring to Article 5 § 1 (e) did not seem to pose the same problem with respect to retrospective legislation, the German legislator decided to ground the confinement of the very same population (except for the release of some minor cases) on the legal purpose of providing therapy for “persons of unsound mind”, seemingly detaching it from the offences that were the original basis for their detention. When drafting the law, the legislator was aware of the fact that by no means all the offenders whom he intended to keep behind bars suffer from a real mental disorder in the strict forensic-psychiatric sense[70], and that, even if they did, there was by no means a serious reason in all cases to believe they could be cured by therapy.[71] The competent court – which according to this law was a civil law court – could order confinement for therapy if the person suffered from a “mental disorder” (psychische Störung), a high probability of certain serious crimes was established and the confinement was necessary for protecting the public. This could take place independent from the fact whether the person was still detained in preventive detention or had been released already. 24. In other words, the Therapy Placement Act engaged in a pure exercise of mislabelling (Umetikettierung) of the Convention-incompatible retrospective preventive detention as an allegedly non-criminal, non‑punitive measure of therapeutic placement.[72] Although applicable by civil courts, the non-criminal nature of the internment was unclear, as was the concept of “mental disorder” (psychische Störung). The artifice used was the intensification of the “magic formula”[73] of the distance requirement. In other words, the legislator doubled down on the distance requirement with a view to making the practical features of the execution of preventive detention as a non-punitive therapeutic internment appear distinct from the service of a prison sentence and therefore save retrospective preventive detention from Strasbourg reprobation. The political move was risky, but turned out to be quite successful, since the reaction of the national judiciary was supportive. (ii) The judicial response (§§ 25-28) 25. The judicial response to M. was no less dexterous.[74] On 4 May 2011,[75] the Constitutional Court declared the incompatibility of the provisions on the imposition and duration of preventive detention with the fundamental right to liberty, because they did not satisfy the constitutional requirements of the distance requirement.[76] Going further than its 2004 judgment, the court insisted on the “release- and therapy-oriented execution” (freiheitsorientierte und therapiegerichteten Vollzug) of preventive detention and its “solely preventive character” (den allein präventiven Charakter).[77] According to the Karlsruhe judges, the distance requirement was imperative for all public authorities and should be specified by the legislator alone, who should develop a “release-oriented global concept of preventive detention” (freiheitsorientiertes Gesamtkonzept der Sicherungsverwahrung)[78] with such a plethora of norms that it determined the executive’s and the judiciary’s conduct in “all important fields” (allen wesentlichen Bereichen).[79] Acting as a “substitute legislator” (Ersatzgesetzgeber), the court set out the required “minimum constitutional standards” (verfassungsrechtlichen Mindestanforderungen)[80] for the legislative implementation of the distance requirement and, in addition, set the deadline of 31 May 2013 for the unconstitutional provisions to be replaced by new regulations based on these standards.[81] Based on the philosophy of the Therapy Placement Act, which was not under review in the constitutional appeal, the Constitutional Court justified confinement in cases where preventive detention was not possible because of the prohibition of retrospective legislation, with the emergence of a “mental disorder” (psychische Störung).[82] Since it would be impossible for the future to justify any kind of retrospective preventive detention on the basis of Article 5 § 1 (a) of the Convention, the Constitutional Court explicitly looked for a different justification for retrospective preventive detention in its Article 5 § 1 (e).[83] With this justification, the court accepted the perpetuation of retrospective preventive detention under section 316e of the Introductory Act to the Criminal Code in the “old cases”,[84] using a strict proportionality test (strikten Verhältnismäßigkeitsprüfung).[85] Hence, the legislator’s rhetoric of the “therapy-orientation” (Therapieorientierung) as a means to distinguish the execution of preventive detention from the service of a prison sentence received explicit constitutional approval from Karlsruhe,[86] which imposed an understanding of the distance requirement “with even clearer contours” (noch deutlicher zu konturieren).[87] It stressed, in particular, that the constitutional requirement to establish a difference between preventive detention and the service of a prison sentence warranted an individualised and intensified offer of therapy and care by a team of multi-disciplinary staff to those in preventive detention if the standard therapies available in the institution had no prospects of success.[88] At the end of the day, the Karlsruhe court confirmed its own understanding of a penalty as being different from that of the Strasbourg Court,[89] but insisted that the two notions did not have to be aligned, because what matters is the consideration of the value judgments of the Court in a result-oriented manner.[90] Ultimately, the “matured” (gewachsene) German constitutional order should prevail over the “flexibility and lack of precision” (Flexibilität und Unschärfe) of the Court’s concept formation.[91] 26. In 2012, the German Parliament passed the Preventive Detention (Distinction) Act,[92] inserting a new Article 66c into the Criminal Code.[93] This Act converted the Constitutional Court’s standards for the execution of preventive detention into national law, and oddly enough into a provision of the Criminal Code, while keeping intact the old-fashioned Article 129 of the Act on the Execution of Detention and the Custodial Measures of Correction and Prevention (cited above). Given that the Länder hold authority for the execution of prison sentences, each Land enacted new legislation in order to implement the distance requirement in practice.[94] Deferred preventive detention remained applicable to juveniles,[95] but retrospective preventive detention was removed from Article 7 of the Juvenile Courts Act, with the exception of cases where confinement in a psychiatric hospital was terminated because the condition which excluded or reduced the defendant’s criminal responsibility and on which the confinement was based did not exist or no longer existed.[96] 27. The legislator established an important transitional provision, namely Article 316f of the Introductory Act to the Criminal Code, which provided for the application of the retrospective provisions on preventive detention whenever the triggering offence (Anlasstat), that is to say the offence or at least one of the offences for the commission of which preventive detention is to be imposed or deferred, had been committed before 31 May 2013. This provision was explicitly designed to enable the courts to make use of the old provisions until the protection of public safety was made possible by deferred preventive detention orders, in other words, for decades to come, in spite of the confessed factually and legally problematic character of the old provisions.[97] Put simply, the new provision of Article 316f, like its predecessor, Article 316d, prolonged the transitional period of the Constitutional Court’s judgment for an indefinite period of time. 28. On 11 July 2013,[98] the Constitutional Court declared the Therapy Placement Act constitutional provided that it was interpreted strictly, in the sense that internment under the Act had to observe the same restrictive conditions under which retrospective preventive detention could be imposed[99], because the Act was to be considered as “criminal law” for the purposes of Article 74 (1) No. 1 of the Basic Law[100] and the intensity of its intervention in the interned person’s right to freedom corresponded to that of preventive detention.[101] In particular, detention under the Therapy Placement Act would only be lawful if the concrete facts suggested that there was a high risk that the person concerned would commit extremely serious crimes. Nevertheless, the concept of “mental disorder” was interpreted broadly, including not only mental illnesses that needed clinical treatment, but also personality disorders of sufficient severity.[102] Following this decision, all the remaining cases of detention under the Therapy Placement Act were reassessed by the relevant authorities and those concerned were gradually released. At the time of the Committee for the Prevention of Torture (“the CPT”) visit in November 2013, only one person in the country was still being subjected to a detention order under the Act in question. The delegation was informed that the aforementioned person was also expected to be released at some stage and that thereafter the Therapy Placement Act would become “obsolete” de facto.[103] Since Article 316 f § 2 allowed for the continuation of preventive detention in cases of its formerly retrospective ordering or prolongation if a mental disorder on the part of the offender was expected to result in extremely serious violent or sexual offences, there was almost no room left for the application of the Therapy Placement Act. Hence, it was not necessary to use this civil-law option of detention because the targeted people could simply be kept in preventive detention by using a similar criminal-law option. This was evidently made possible by the Constitutional Court’s May 2011 judgment, which had decided, shortly after the Therapy Detention Act had entered into force on 1 January 2011, that under the very conditions stated by this Act, offenders could be kept in preventive detention. (iii) The Government’s response (§§ 29-31) 29. The Government’s response in Strasbourg was ingenious. They insisted before the Court on the need to admit under the Convention not only the unlimited retrospective preventive detention of offenders with “mental disorder” (psychische Störung), but even the pre-crime detention of allegedly dangerous people for preventive purposes. The tactic paid off. Just two years after Schwabe and M. G.,[104] the Court backtracked, in Ostendorf,[105] from its previous position, conceding that the obligation to keep the peace by not committing a criminal offence can be considered as sufficiently “specific and concrete” for the purposes of Article 5 § 1 (b) of the Convention “if the place and time of the imminent commission of the offence and its potential victim(s) have been sufficiently specified”[106]. In that same year, the Court delivered judgment in Bergmann,[107] reviewing M. The present judgment confirms the Court’s conceding stance. 30. If an interpretation of Article 5 § 1 (e) of the Convention were accepted that supported the German model of preventive detention as detention of a person of “unsound mind” independent from the criminal law system, this would open the door to preventive detention without a prior offence. The Government’s reasoning perceives the connection between the prior offence and the detention as rather loose, because otherwise the detention would have been subsumed as one under Article 5 § 1 (a). This opens up a wide door to detaining someone because of nothing more than a prediction of dangerousness. 31. The Government’s success has resonated in some Länder which have not shied away from introducing new drastic forms of preventive detention, such as unlimited preventive detention ordered under police regulations (for example, Article 20 of the Bavarian Polizeiaufgabengesetz and § 18 of the Bremen Polizeigesetz). Although they are imposed under judicial supervision, these are detention measures based on the mere suspicion of future criminal conduct, independently of any pending or future criminal procedure and without any time-limit.[108] Schutzhaft is back again, albeit with judicial backing this time. C. Preliminary conclusion (§§ 32-35) 32. In the logic of the German criminal law system, preventive detention had no therapeutic purpose. An offender of unsound mind is sent, under a hospital detention order, to a forensic psychiatric hospital (Article 63 of the Criminal Code) after an expert concludes that there is a danger of further offences as a consequence of a mental disorder. An offender is sent into preventive detention (Article 66 of the Criminal Code) when there is no underlying mental disorder, only a vicious tendency which could lead to the commission of future offences. Article 63 was aimed at the “mad” offender (that is to say an insane dangerous offender who has committed a criminal offence owing to a mental illness), while Article 66 targeted the “bad” offender (namely a sane dangerous offender who repeatedly commits serious offences (Gewohnheitsverbrecher) and is considered as “untreatable” (unverbesserlich).[109] This is still the case today: while Article 67d § 6 of the Criminal Code determines that the Article 63 security measure based on a hospital detention order should be terminated (erledigt) when the respective requirements no longer prevail, Article 66b of the Criminal Code and section 7(4) of the Juvenile Courts Act still provide for retrospective preventive detention in that situation, which would not be possible if this measure had a therapeutic purpose. Furthermore, Article 67 of the Criminal Code lays down the so-called vicarious system. In case of a mental hospital order or an addiction treatment order, the measure as a rule has to be executed before the prison sentence. When a measure is executed while a prison sentence is still open for execution, the time spent in the clinic in execution of the measure will be counted as prison time up to a total of two-thirds of the prison sentence. Preventive detention is excluded from the vicarious system,[110] obviously because it is not perceived as treatment, but rather as punishment. The Feindstrafrecht is still very much alive. 33. In sum, during the over 85 year-long period of existence of preventive detention in German criminal law, it has never been connected to medical or psychiatric treatment, indeed not even to treatment at all. On the contrary, preventive detention has always been considered as being predominantly a freedom-limiting security measure[111] as opposed to the primarily treatment-oriented measures of Article 63 of the Criminal Code (confinement in a mental health hospital) and Article 64 (confinement for drug or alcohol treatment). 34. The epistemic turn-around operated by the Constitutional Court in May 2011, which aligned itself with the Therapy Placement Act’s strategic political choice to avoid direct confrontation with Strasbourg, was crowned by the new Article 66c in the Criminal Code introduced by the 2012 Preventive Detention (Distinction) Act. In fact, the German parliamentarians engaged first in a policy of “transubstantiating” preventive detention into a non-criminal law, a non-punitive measure of therapy placement in order to safeguard its autonomy from imprisonment and above all its retrospective applicability. Subsequently, in its judgment of 4 May 2011, the Constitutional Court based the further confinement of those who were subjected to retrospective preventive detention on the conditions set out in the Therapy Placement Act. In practice, this resulted in their continued detention, but not in their placement in therapy, which would have to be ordered by a civil court and in accordance with civil law. Furthermore, the Constitutional Court referred to a new law (the Therapy Placement Act) for the justification of the continuance of preventive detention, including detainees under the juvenile law,[112] for which it had acknowledged a violation of the principle of legitimate expectation (albeit not of the prohibition of retrospective legislation) in the very same judgment. In so doing, the Constitutional Court’s judgment produced a retrospective cure of preventive detention even though it explicitly resulted from a new perception of Sicherungsverwahrte as people of “unsound mind” and a seemingly ex nunc perspective on their dangerousness and the necessity of their future treatment. 35. While Article 316f of the Introductory Act to the Criminal Code limited retrospective preventive detention to offenders with a “mental disorder” and to a high degree of danger of committing the most serious violent or sexual offences, it is a provision not on therapeutic placement in a psychiatric hospital, but on retrospective preventive detention, closely linked to the crime committed in the past for which a conviction without an order of preventive detention had been proffered. As the distinction of cases with the triggering offence (Anlasstat) before or after 31 May 2013 shows, this offence – and not the offender’s mental condition – is still the relevant category for the courts’ decision. III. The dogmatic of preventive detention (§§ 36-55) A. Adult and young adult offenders (§§ 36-48) (i) Back to the “purposeless majesty” of prison (§§ 36-41) 36. The preventive detention policy of the respondent State is fundamentally flawed. The distinction between guilt (Schuld) -based penalties applied to criminally liable persons and dangerousness (Gefährlichkeit) -based measures of correction and prevention applicable to non-criminally liable persons and the characterisation of preventive detention as a measure of correction and prevention, despite the fact that it is applied to criminally liable persons, do not stand the scrutiny of the basic principles of modern criminal law, namely human dignity and resocialisation. 37. The fundamental dogmatic error is that of ignoring that a prison sentence should be just as therapy- and liberty-oriented as preventive detention.[113] The principles set out in §§ 106 to 118 of the constitutional judgment of 4 May 2011 and incorporated into Article 66c of the German Criminal Code by the Preventive Detention (Distinction) Act should be applicable both to prison sentences and to preventive detention orders. The provision of individualised treatment which is based on a comprehensive needs assessment and a regularly updated plan of execution (Vollzugsplan)[114] is an imperative feature of a resocialisation-oriented organisation of the prison system,[115] especially of long-term prison terms, according to the European Prison Rules and other international standards.[116] Likewise, the focus on therapeutic needs and the promotion of individual liberty, participation and motivation, as well as the goal of the treatment programme to foster the willingness of inmates to become involved in attempting to reduce their dangerousness to society so that they can be conditionally released as soon as possible, are prevailing features of the rational management of the prison system. As a rule, treatment programmes for prisoners must include progressive relaxation of the regime and authorisation of temporary prison leave. 38. In other words, the allegedly specific features of preventive detention should also be part and parcel of prison sentences. German legislation itself acknowledges this when, in connection with convicted prisoners who have been conditionally earmarked for preventive detention in their sentences, it determines that the relevant prison authorities are under a legal obligation to provide specific treatment measures to inmates while they are serving their sentence, with a view to rendering subsequent preventive detention as unnecessary as possible (Article 66c § 2 of the Criminal Code).[117] Moreover, even before the inclusion of Article 66c in the Criminal Code, the specific provisions for the execution of preventive detention were already modelled on the enforcement of prison sentences (Articles 130-135 of the Act on the Execution of Detention and the Custodial Measures of Correction and Prevention, cited above).[118] In this context, it comes as no surprise that the Karlsruhe judges consider that resocialisation applies equally to the execution of a prison sentence and to the execution of preventive detention, which “may impose certain de facto limits on the details of the distance requirement”.[119] 39. More importantly, the distance requirement is based on the assumption that prison sentences and preventive detention have different purposes, the former being primarily a repressive reaction to blameworthy conduct with the objective of “compensating for wrongdoing” (Schuldausgleich),[120] and the latter being solely aimed at “the future protection of society” (zukünftigen Sicherung der Gesellschaft)[121] against offenders who, on the basis of their previous conduct, are deemed highly dangerous. The assumption that retribution for a wrong (Schuldvergeltung) or “compensation for wrongdoing” (Schuldausgleich)[122] is the primary purpose of the prison sentence contradicts not only the basic principle of modern criminal law of resocialisation (positive special prevention) of offenders responsible for the culpable commission of a criminal wrong, but also its reliance on human dignity.[123] 40. Since its famous Lebach decision in 1973,[124] the Constitutional Court has reiterated that the sole purpose of a prison sentence is rehabilitation, and the right to rehabilitation is derived from the principle of human dignity and the humaneness of penalties. Contrary to its long-standing commitment to resocialisation in many other subsequent landmark judgments,[125] the hidden underlying assumption in the German constitutional case-law on preventive detention is still that of a prison sentence as a penalty with its “purposeless majesty”, in the famous words of Maurach.[126] When the Constitutional Court acknowledged that blameworthy conduct was “the point of contact” (Anknüpfungspunkt) of preventive detention, but not its “ground” (Grund), assuming that a prison sentence has its “ground” on such conduct,[127] the metaphysical repressive function of the prison sentence re-entered by the back door and took centre stage in criminal law in Germany. 41. Worse still, this assumption diverts the public authorities from their obligation to provide the means needed for a resocialisation-driven prison system. Put another way, such an assumption dangerously imperils the principle of resocialisation of prisoners, because the full realisation of this principle in prisons would violate the distance requirement as well. Or does the distance requirement mean that the constitutional judges accept that an unconstitutional practice continues to prevail in prisons? This requirement does not fit into the modern criminal-law approach of counteracting the possible damage to the personality (Haftschäden) caused by any kind of long-term detention.[128] If the assumption of the “purposeless majesty” of a prison sentence is wrong, as modern criminal law tells us, the distance requirement cannot subsist and, “without the distance requirement, the institution of preventive detention is incompatible with the fundamental right to liberty of detainees under preventive detention.”[129] (ii) The manipulation of psychiatry (§§ 42-44) 42. For a variety of reasons, the respondent State’s post-M. policy runs the risk of manipulation of psychiatry for the purposes of social repression.[130] As a matter of science, there is no correlation between psychiatric diagnosis and dangerousness, especially with regard to juveniles and young adults, whose prognosis is most uncertain. Prognosis of very serious crimes is extremely difficult due to their low base rate, and is arguably impossible in the artificial world of imprisonment, especially in the case of young people of an age conducive to resistance and with a comparatively shorter criminal biography. It is regrettable that the domestic authorities turned a blind eye to the well-documented problems of overestimating the probability of recidivism, leading to the proliferation of “false positives”. In fact, the Karlsruhe judges considered the problem of unsafe empirical evidence as a specific ground for the distance requirement and the execution of preventive detention according to this requirement, but failed to take into account that same unsafe aspect with regard to prison sentences. These problems are compounded by recent developments in psychiatry and psychology which have triggered a massive expansion of diagnoses under the category of mental disorders.[131] Many of these disorders are circular constructs in so far as it is the offence which leads to the statement of a disorder. This is especially true for anti-social disorder and sexual preference disorder. 43. In a typically Kafkaesque situation, mental disorder is in practice equated with the detainee’s dangerousness (“re-labelling”). Considering that mental illness is not a general requirement of preventive detention, which means that there are offenders with such a mental condition and offenders without it who are detained under § 66 of the Criminal Code, the latter cannot be subject to medical internment in a mental health institution. Yet the Constitutional Court’s broad interpretation of “mental disorder” (psychische Störung) leads to the serious risk of equating mental disorder with the detainee’s dangerousness, just for the sake of keeping him or her in detention longer. This risk of a circular reasoning – in the sense of “anyone who offends in that way has to be mentally disordered, and anyone who offends in that way and has a mental disorder must be dangerous”[132] – is aggravated by the Constitutional Court’s understanding of “mental disorder” as a legal concept based on a vague psychiatric diagnosis of antisocial disorder or deviant behaviour and the domestic authorities’ uncertain and abstract practice of categorising detainees as dangerous.[133] 44. In this context, it is plain to see that having preventive detention for convicted offenders who had been found mentally fit to stand trial and legally responsible but are mislabelled as “mentally disordered” persons only serves the purpose of prolonging their incarceration ad aeternum, and if need be, retrospectively, regardless of whether they are recoverable or not. In fact, the Constitutional Court, in its judgment of 4 May 2011, also adopted this perspective in the case of an appellant G. who had been confined in psychiatric hospitals under measures of correction and prevention (Article 63 of the Criminal Code), and whose confinement had been terminated on the grounds that the complainant was unamenable to therapy (therapieunfähig), the court having ordered the remainder of the custodial sentences to be executed, and subsequently his preventive detention.[134] (iii) Frustrating legitimate expectations (§§ 45-48) 45. The uncertainty of the domestic legal framework is compounded by the Constitutional Court’s case-law on legitimate expectations.[135] According to the Karlsruhe court, the law may be retrospective in the sense that, while its legal effects are produced only after its publication, it covers events “set in motion” (ins Werk gesetzt) before it enters into force, but still not completed at this moment.[136] This is the so-called “spurious retrospectivity” (unechte Rückwirkung), which must be differentiated from “genuine retrospectivity” (echte Rückwirkung), whereby the new law changes the legal effects of events completed before its entry into force. In respect of retrospective laws in the former sense, the principles of legal certainty and protection of legitimate expectations are not given overall priority over the intention of the legislator to change the existing legal order in response to changing circumstances. The legislator may enact such retrospective laws if the importance of the purpose of the legislation for the common good outweighs the importance of the interest in protecting legitimate expectations. 46. This is exactly what the Constitutional Court concluded in the M. case, which concerned the removal of the 10-year limit with retrospective effect. In this case, the court decided that such removal only affected those who were already under preventive detention at the time of entry into force of the law, and not those whose preventive detention measure had already come to an end at that time. Furthermore, the “common weal” (das Wohl der Allgemeinheit) prevailed over the targeted detainees’ trust that the lawful 10-year maximum would be kept.[137] 47. In addition to the artificiality of the argument according to which the new law did not affect the measure itself as a legal consequence of the offender’s conduct, but only its duration, the balancing exercise performed by the Karlsruhe court obviously comprises the danger that retrospective preventive detention might be misused, in practice, as a corrective action for flawed judgments, in a flagrant distortion of the principle of ne bis in idem. 48. In its judgment of 4 May 2011, the Constitutional Court not only did not clarify what situation it referred to as the point of departure from which retroactivity is discussed – the preventive detention (not yet completed), the conviction (completed) or the crime committed in the past (completed) –, but admitted that both in the case of retrospective extension of the time limit of preventive detention (Article 67d § 3 No. 1 of the Criminal Code in conjunction with Article 2 § 6), and in the case of retrospective application of preventive detention (Article 66b § 2 of the Criminal Code and section 7 § 2 of the Juvenile Courts Act), there was an encroachment upon the legitimate expectations of the targeted detainees, irrespective of whether it is assumed as a “genuine” or “spurious” case of retrospectivity[138], and that the violation of the distance requirement gives the legitimate expectations of the targeted person a weight approaching that of an absolute protection of legitimate expectations.[139] The court conceded that in this context the protection of legitimate expectations is closely related and structurally similar to the nulla poena sine lege principle.[140] Indeed, it is incomprehensible why an offender sentenced to a prison term benefits from the full protection provided by the principle of legality, including the prohibition of retrospective lex gravior, while serving the prison sentence, but loses that protection when in preventive detention after having served his or her prison sentence and “paid” for his or her wrongdoing. Both sanctions are severe interferences with the offender’s right to liberty and should therefore be subjected to the same test of legality and the same absolute prohibition of retrospective lex gravior, regardless of his or her mental condition. Or should one assume that the Sicherungsverwahrten,especially those with a mental disorder, are less worthy of dignity and humanity? B. Juvenile and young adult offenders (§§ 49-52) (i) No proportionality-based policy (§ 49) 49. Preventive detention applied to juveniles and young adults was no empirically tested, proportionality-based policy choice.[141] Study of the legislative procedure speaks volumes here. There was neither an evaluation of the results of such regime when applied to adults, nor any consideration of possible less intrusive alternative measures. For juveniles, a fortiori, the Human Rights Committee’s views on preventive detention of adults should have been taken into account, as follows: “To avoid arbitrariness, in these circumstances, the State Party should have demonstrated that the author’s rehabilitation could not have been achieved by means less intrusive than continued imprisonment or even detention, particularly as the State Party had a continuing obligation under Article 10 paragraph 3 of the Covenant to adopt meaningful measures for the reformation, if indeed it was needed, of the author throughout the 14 years during which he was in prison.”[142] Furthermore, the political choice of retrospective application of preventive detention to juveniles was determined by one single case, that of the applicant. In fact, during the parliamentary hearings of the experts, Mr. Konopka, the director of the Straubing detention centre, defended the indispensability of the measure on the basis of the need to keep the applicant in detention.[143] In its decision of 9 March 2010, the Supreme Court explicitly admitted the connection between the new law and the specific case of the applicant.[144] A criminal law that is approved, in practical terms, for one single person is not just a flagrant breach of the principle of proportionality: it is an attack to the rule of law itself. (ii) Failing the educational purpose (§ 50) 50. Worse still, the German legislator paid no attention to the specific situation of juvenile offenders, especially regarding the peculiarities of the age of adolescence, the shorter criminal career, the enhanced possibility of therapy and the risk of preventive detention potentially becoming a life sentence. This resulted in no specific instructions being provided for the execution of preventive detention regarding juveniles and young adults.[145] Furthermore, the preventive detention order imposed on juveniles remained focused on neutralisation, rather than resocialisation. Finally, the requirement of at least seven years of imprisonment seems arbitrary and inappropriate to juvenile law, in particular with regard to aggregate penalties. All in all, the policy choice is hardly compatible with the educational concept of juvenile law. (iii) The inequality of treatment vis-a-vis adults (§§ 51-52) 51. This conclusion is reinforced by the suppression of the requirements of a “tendency” (Hang) to commit offences and new facts (nova) indicative of the offender’s dangerousness during imprisonment in the case of juveniles, which raises a serious issue of inequality vis-à-vis adult offenders. With the stated aim of increasing the accuracy of prognosis, it was established that not only new facts which arose during the time in custody could be considered, but any kind of fact, including facts that had already been known to the trial court but had at the time been assessed differently. 52. This political choice was by no means a result of humanist thinking or serious consideration of the problems related to prognosis with young people. Instead it was an obvious opportunity to get rid of the true limiting condition that could in practice obstruct the ordering of retrospective preventive detention. With respect to the law for adults, it had been the necessity of nova which, according to the case-law of the Federal Court of Justice, often led to a dismissal of retrospective preventive detention.[146] The Federal Court of Justice made clear that any fact that was considered or could have been considered by a careful trial judge could not serve as nova justifying retrospective preventive detention.[147] The requirement of nova, as understood by the Federal Court of Justice, was at the time the only serious, effective barrier to the ordering of retrospective preventive detention for numerous prisoners. This was exactly what the legislator wanted to avoid in the case of juveniles. C. Preliminary conclusion (§§ 53-55) 53. The endless fudging and patching-up legislative exercise regarding preventive detention was made possible by jurisprudential connivance with the “makeshift”[148] solution of the distance requirement. In reality, apart from some quantitative differences (such as cell size or doubling the minimum time for visits per month) the difference between the execution of a preventive detention order and of a prison sentence is only apparent because of the lack of effective implementation of prisoner’s rights in prison facilities. If the latter were implemented according to European standards and domestic law, that difference would diminish significantly, or even vanish.[149] Worse still, empirical data show that in practice people in preventive detention either have no access to or do not accept therapeutic proposals.[150] This is usually regarded as being the detainees’ fault, but in fact it is quite revealing of the quality of the porposals.[151] 54. Even if we accept, for argument’s sake, that preventive detention was imposed in the hospital-like conditions that the Government have depicted, this should not distract us from the hard reality that Sicherungsverwahrten are detained, and may remain in detention for the rest of their lives. In the case of juveniles, this can mean life-long imprisonment. As a matter of historical accuracy, one should not forget that the distance requirement was created to guarantee these detainees a “modicum of quality of life”, which shows that the underlying assumption was that these were “hopeless” people who were not amenable to therapy and who would stay behind bars for the rest of their lives.[152] At the end of the day, the Constitutional Court recognised that the encroachment made by preventive detention upon the right to liberty, “even if the distance requirement is complied with” (selbst bei Währung des Abstandsgebotes), is “comparable” (vergleichbar) to a custodial sentence with regard to the permanent deprivation of external liberty[153] and, when explaining why Federal rather than Länder legislation was competent to introduce retrospective preventive detention, referred to it as a “penalty” (Strafe).[154] The same applied even to therapeutic placement.[155] In the light of the general principles of systematic interpretation of constitutional law, it is indeed hard to understand why the Constitutional Court considers penalties and measures of prevention and correction as two subject-matters of the same nature, namely criminal law (Strafrecht), but separates them for the purpose of the principle of legality. This selective position of the Karlsruhe judges speaks volumes about the true punitive meaning of preventive detention and therapy placement. 55. By abandoning the essential feature of the preventive detention regime, that is to say the “tendency” to commit serious offences, the legislator de-characterised the measure when applicable to juveniles.[156] Worse still, by giving up the nova requirement, he paved the way for an unlimited repressive juvenile policy, which not only treats juveniles differently, but discriminates against them, since the reasons provided for the difference of treatment do not obtain. This specific bone of contention is of particular importance in the present case, because it was raised by the applicant before the Federal Supreme Court and the Constitutional Court, which confirmed the above-mentioned policy.[157] These arguments can only be fully understood in the context of the conflicting constitutional and international law standards binding the German courts, to which I now turn. Second part – Testing preventive detention under international law (§§ 56-130) IV. The context of the dialogue between Strasbourg and Karlsruhe (§§ 56-89) A. The constitutional law context (§§ 56-74) (i) The international-law-friendliness of the Basic Law (§§ 56-59) 56. According to the Constitutional Court, the Convention ranks below the Basic Law, being assigned the rank of a Federal law[158]. In view of this hierarchical ranking, the Convention is not a direct constitutional standard of review, and a complainant therefore may not directly challenge the violation of a human right enshrined in the Convention by means of a constitutional complaint before the Constitutional Court. Nevertheless, the provisions of the Basic Law must be interpreted in an international-law-friendly manner. The Convention guarantees and the Court’s judgments serve as helpful interpretative instruments for the determination of the scope and content of fundamental rights of the Basic Law as long as they do not limit or diminish the level of fundamental rights’ protection of the Basic Law.[159] But unlike other international treaties, the Convention bestows on a court the power to deliver a “declaratory judgment” (Feststellungsurteil)[160], which has res judicata force between the parties, but no cassation force. The State involved in the case has an obligation to restore, if possible, the situation that would have prevailed without the Convention violation found, to guarantee that domestic legal order accords with the Convention and to eliminate any domestic-law obstacle to the redress of the applicant’s situation. For the States not involved, the court’s judgment provides an “incentive” (Anlass)[161] to test the national legal order and orient it in the sense of Strasbourg case-law. 57. All State organs are required to have regard to the Convention and the Court’s judgments, which means that both the failure to engage with the Court’s judgments and their “schematic execution” (schematische “Vollstreckung”)[162] or “unthinking enforcement” (unreflektierten Vollzug)[163] against prevailing domestic law may breach fundamental rights. The duty to have regard to the Convention and to the Court’s judgments means, as a minimum, that the latter should be known and included in the decision-making process of the legislature, the competent administrative bodies and the judiciary. The aspects considered by the Court in its balancing exercise must be taken on board when the matter is considered from the point of view of constitutional law, in particular in the proportionality test, and a comparison must be carried out with the results of that balancing exercise. This is an objective obligation, which does not depend on the date of entry into force of a national law. Thus the latter is subject to Convention standards set after its entry into force. 58. In case of a Court finding of a violation, which still obtain at the moment the domestic authorities are confronted with the judgment, they should take it into account and possibly provide clear reasons for the failure to follow it. There are three possible scenarios here. Where a provision of national law has been found incompatible with the Convention, it may still be interpreted in conformity with public international law when applied in practice or be changed by the legislator.[164] Where an administrative act has been found incompatible with the Convention, the competent administrative authority has the “possibility” (Möglichkeit),[165] but not the obligation, to quash it in accordance with the provisions of administrative procedural law. Where a judicial decision has been found incompatible with the Convention, the Court’s judgments do not have the effect of eliminating the res judicata of the domestic judicial decision. 59. State organs must consider the legal consequences of the Court’s judgments in the domestic legal order, bearing in mind that Strasbourg jurisprudence decides concrete individual cases argued between the applicant and the Convention party. These judgments may encounter partial national systems of law shaped by a complex system of case-law, in which conflicting human rights positions were harmonised by the construction of groups of cases and a set of ordained legal consequences.[166] Such systems include family law, aliens’ law and personality rights. It is the task of the domestic courts to integrate a decision of the Court into the relevant partial legal area of the national legal system, because the Court’s judgments cannot undertake directly any necessary adjustments within a domestic partial legal system. (ii) The caveat of multipolar human rights’ relations (§§ 60-61) 60. In the Karlsruhe judges’ opinion, the limits of international-law-friendly interpretation result from the Basic Law and the general principles of legal interpretation. Such international-law-friendly interpretation is not possible where it is not defensible in the light of “the recognised methods of legal interpretation” (methodisch vertretbaren Gesetzauslegung).[167] The judges give examples of where observing the Court’s judgment would not be a suitable interpretation, such as when it “violates statutory law established clearly to the contrary” (gegen eindeutig entgegenstehendes Gesetzesrecht ... verstößt) or German Constitutional provisions, in particular the fundamental rights of third parties.[168] 61. This latter limitation to the reception of the Convention can be relevant particularly in “multipolar fundamental rights relations” (mehrpolige Grundrechtsverhältnisse), when the plus of freedom of one fundamental rights’ subject means a minus for another fundamental rights’ subject.[169] There are three main reasons for the domestic authorities to refrain from observing the Court’s case-law in this type of relations: first, they often relate to a sensitive balancing exercise between different individual subjective legal positions whose result may change when there is a change of subjects or in the legal and factual circumstances; second, in a multipolar relation a Court decision may interfere with the subjective rights of several parties which have to be harmonised but where only one of them was able to represent him- or herself before the Court; and third, the possibility for third parties to take part in the Court proceedings is not an institutional equivalent to the rights and duties as a party to the original national proceedings or another person involved in the original national proceedings. The specificity of multipolar human rights’ relations also means that they cannot be generalised but must be examined on a case-by-case basis.[170] (iii) The Convention-unfriendly interpretation of preventive detention (§§ 62-74) 62. The international-law-friendly interpretation includes the duty to consider Convention guarantees and the Court’s judgments as having “at least a de facto effect as precedents” (zumindest faktischen Präzedenzwirkung),[171] even beyond the scope of Article 46 of the Convention. Furthermore, Court judgments which contain new aspects relevant to the interpretation of the Basic Law are “equated to legally relevant changes” (rechtserheblichen Änderung gleichstehen)[172] which may prevail over the final judgments of the Constitutional Court. That is why the Constitutional Court agreed to review the issue of the constitutionality of Article 67d § 3 of the Criminal Code in its judgment of 4 May 2011, even though it had already been decided by its judgment of 5 February 2004.[173] 63. Article 1 (2) of the Basic Law is not a gateway towards giving the Convention “direct constitutional status” (unmittelbaren Verfassungsrang), but is simply a “non-binding programmatic statement” (unverbindlicher Programmsatz) that Basic Law fundamental rights have incorporated human rights as a minimum.[174] According to the Karlsruhe court, the role of the Court’s decisions as an auxiliary instrument for interpretation of the Basic Law does not mean that the Basic Law and the Convention guarantees are automatically parallel.[175] It is sufficient to adopt the standards that are expressed in the Court’s case-law to the extent that would seem methodically acceptable and consistent with the standards set out in the German Constitution.[176] Hence, a schematic alignment of the meaning of the constitutional notion of penalty with that under the Convention is not mandatory if, in substance, the minimum standards set by the Convention are complied with.[177] 64. In its judgment of 4 May 2011, the Constitutional Court confirmed its constant case-law to the effect that the absolute ban on the retrospective application of lex gravior does not apply to preventive detention and therefore this measure of correction and prevention can be applied retrospectively to convicted offenders. The interpretation of what is considered to be a punishment in Germany could not be determined by following the case-law of the Convention, but was to be decided solely in accordance with the German Constitution.[178] This argument led inter alia to the maintenance of Article 2 § 6 of the Criminal Code,[179] which allows for the retrospective imposition of measures of correction and prevention. 65. In practice, the Constitutional Court distorted the meaning and purpose of M. v. Germany[180] insofar as M. considered the manner of execution of the preventive detention in order to reach a detainee-friendly result, namely, to enlarge the scope of application of Article 7 of the Convention and submit this measure to the fully-fledged principle of legality, including the principle of nulla poena sine lege praevia. However, the Karlsruhe court reversed the argument in order to reach a detainee-unfriendly result, namely to narrow down the scope of Article 7 and deprive the Sicherungsverwahrten of the benefit of that precise principle. This is obviously the result of the non-alignment of the Strasbourg and Karlsruhe courts on the applicability of the principle of nulla poena sine lege praevia to preventive detention. 66. At this juncture it is important to note that, one month before the Constitutional Court’s judgment of May 2011, the Court delivered an enlightening judgment in the case of Jendrowiak v. Germany,[181] which made crystal-clear that the road taken by the domestic authorities after M. v. Germany was wrong. In Jendrowiak, the Court held that the preventive detention of the applicant, who had committed numerous sexual offences and suffered from a personality disorder, “did not fall within any of the exhaustively listed permissible grounds for a deprivation of liberty under sub-paragraphs (a) to (f) of Article 5 § 1” of the Convention.[182] The language from Strasbourg could not be clearer, and yet the Constitutional Court carried on with its “result-oriented” (ergebnisorientierten)[183] interpretation of the Court’s judgments. 67. Contrary to the Constitutional Court’s assumption, its consideration of the Court’s value judgments in a “result-oriented” manner is not sufficient. There must be a Convention-oriented fundamental rights theory, which is something different and more demanding.[184] The Court’s judgments do not have a mere “de facto function of orientation and guidance for the interpretation of the Convention” (faktische Orientierungs- und Leitfunktion),[185] as the Constitutional Court claims. All the Court’s judgments have the same legal value, binding nature and interpretative authority, which value, nature and authority are the same for all Contracting Parties to the Convention.[186] The fact that the Convention leaves it to them to decide how they should comply with the duty to observe the provisions of the Convention[187] does not empower States to nullify or circumvent the effect of the Court’s judgments. The content of the Court’s judgments must not be “rethought” (umgedacht)[188] in the receiving constitutional system to such an extent that it deprives them of their meaning and purpose. 68. If the interpretation of the Basic Law fundamental rights in accordance with the Court’s judgments cannot result in the protection of the former being restricted, the Basic Law cannot be misused either to lower the level of Convention protection afforded the applicant. In their domestic systems, the Contracting Parties can go beyond the human rights protection afforded by the Court to the applicant, but they cannot, under Article 53 of the Convention, lag behind that level of protection. Such possibility would constitute a blatant distortion of Article 53 of the Convention, which in itself would cause a grave structural crisis in the Convention system. It is certainly not admissible to invoke “other constitutional interests”, such as the “safety needs of the community” (Sicherungsbedürfnis der Allgemeinheit)[189], in malam partem, in order to downgrade the level of protection afforded the applicant by a final judgment of the Court. 69. Nor can the argument of possibly neglected “multi-polar fundamental rights”[190] be invoked here as an obstacle to the full reception of M.[191] in the German constitutional order, because the interests of public safety were already thoroughly debated by the parties and duly considered by the Court’s case-law on preventive detention[192]. The Court concluded as follows: “The Court would further note that its above observations on the scope of the State authorities’ positive obligation to protect potential victims from inhuman or degrading treatment which might be caused by the applicant ... apply, a fortiori, in the context of the prohibition of retrospective penalties under Article 7 § 1, provision from which no derogation is allowed even in time of public emergency threatening the life of the nation (Article 15 §§ 1 and 2 of the Convention). The Convention thus does not oblige State authorities to protect individuals from criminal acts of the applicant by such measures which are in breach of his right under Article 7 § 1 not to have imposed upon him a heavier penalty than the one applicable at the time he committed his criminal offence.”[193] 70. In spite of the serious misrepresentation of the meaning and purpose of M.[194] and the systemic risk put by Constitutional Court’s reasoning, the majority in the present judgment follow suit, by aligning their interpretation of Article 7 notion of “penalty” with the “minimum standards” of the domestic courts. States are narrowing down the scope of the principle of legality, and the Court is playing along, outsourcing punishment to other sanctions not covered by Article 7 such as administrative confiscation in Italy and preventive detention in Germany. 71. In Italy, the Constitutional Court still views confiscation of property connected to unlawful site development as an administrative measure, which it can then apply to statute-barred offences.[195] In Germany, the Constitutional Court still views preventive detention as a “custodial measure of correction and prevention” (freiheitsentziehende Maßregel der Besserung und Sicherung) which is not limited by the nulla poena sine lege praevia principle. 72. In both cases, the constitutional courts’ acceptance of the Court’s principled critique of core features of their systems of criminal sanctions is only apparent. The Court’s principled critique of confiscation as an administrative measure in Sud Fondi[196] in 2009 and Varvara[197] in 2013 was circumvented by the Italian Constitutional Court in its judgment 49/2015, exactly in the same way as the Court’s principled critique of preventive detention in M. in 2009[198] and its jurisprudential progeny[199] was circumvented by the German Constitutional Court in its May 2011 judgment. Paragraph 151 of the Karlsruhe judgment of 5 February 2004 is still considered as good law today, in spite of its total incompatibility with M.[200] 73. Both constitutional courts adhered to their initial positions of principle on the nature of confiscation (as being an administrative sanction) and preventive detention (as not being a Strafe) and conceded nothing substantial to Strasbourg. The same happened with the Court’s principled critique of de facto irreducible whole life in Vinter[201] in 2013, which was circumvented by the Court of Appeal of England and Wales in its McLoughlin[202] judgment in 2014. In McLoughlin, the Court of Appeal did not budge an inch from its previous position regarding the issue of the compatibility of a whole life order with the Convention, which had been reproached by the Grand Chamber in Vinter. 74. In all three cases the Court resignedly swallowed the pill. Hutchinson[203] backtracked from Vinter and Others, GIEM and Others[204] backtracked recently from Varvara, and now Ilnseher backtracks from M. It is sad to see the beacon of human rights and of criminal law reform in Europe failing to uphold the basic principle of the rule of law and abandoning the most fundamental principles of modern criminal law. Illiberal times call for a strong, counter-majoritarian Court, not an illiberal Court. This is particularly so in the light of the teachings of international and comparative law, as it will be subsequently demonstrated. B. The international and comparative law context (§§ 75-85) (i) The United Nations standards (§§ 75-79) 75. The principle of legality in the field of criminal law, both in its positive (retrospectivity of lex mitior) and negative versions (prohibition on retrospectivity of lex gravior), is customary international law, binding on all States, and peremptory law with the effect that no other rule of international or national law may derogate from them.[205] This principle of ius cogens applies fully to preventive detention. 76. As a matter of principle, it has already been decided that the imposition of preventive detention on a convicted offender after the service of a prison sentence, even when it was feared that he might be a danger to the community in the future and for purposes of his rehabilitation, violates Article 9 § 1 of the International Covenant on Civil and Political Rights.[206] The retrospective application of such penalty, even when nominally characterised as “civil proceedings”, falls within the prohibition of Article 15 of the Covenant.[207] Furthermore, the United Nations has on several occasions voiced its concern about the number of persons in preventive detention in Germany and the duration of such detention, as well as the fact that conditions of detention have not been in line with human rights requirements in the past[208]. 77. In the UNHRC’s view, the State Party should take the necessary steps to use the post-conviction preventive detention as a measure of last resort and create detention conditions for detainees, which are distinct from the treatment of convicted prisoners serving their sentence and only aimed at their rehabilitation and reintegration into society. The State Party should provide all legal guarantees to protect the rights of those detained, including periodic psychological assessment of their situation which can result in their release or the shortening of their period of detention. 78. The CAT considers that the State Party should take all the requisite steps to release persons in preventive detention, to reduce its duration and to limit the cases in which it is imposed, and also to take into account the provisions of the United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules) when devising alternative measures to preventive detention.[209] 79. Most importantly, the United Nations Working Group on Arbitrary Detention concluded that: “27. If a prisoner has fully served the sentence imposed at the time of conviction, articles 9 and 15 of the International Covenant on Civil and Political Rights and customary international law prohibit a retrospective increase in sentence. States may not circumvent this prohibition by imposing a detention that is equivalent to penal imprisonment under any other label. Articles 9 and 15 of the Covenant and customary international law, as restated by the Human Rights Committee in its general comment No. 35 (2014) on article 9 (liberty and security of person) and in the practice of the Working Group, clearly prohibit the imposition of the new preventive detention regime of 1998, including the provisions which would allow the extension of detention after the completion of penalties (and other restrictions under domestic law). 28. The Working Group notes that it is still unsatisfactory that certain detention regimes and restrictions on personal liberty that, under international law, are considered punishment are not so considered under German law, and that consequently there are different guarantees against retroactivity, including less effective remedies.”[210] (ii) The Council of Europe standards (§§ 80-83) 80. The CPT has been very critical of the discrepancy between the theory and the practice of preventive detention in Germany.[211] When visiting the “Unit for Secure Placement” (Sicherungsverwahrung) in Berlin-Tegel Prison in 2005, the CPT concluded that “[i]n theory, at least, the unit offered opportunities for a positive custodial living environment.”[212] However, the delegation got the impression that “the activities were strategies to pass time, without any real purpose. As might be expected, this appeared to be related to their indefinite Sicherungsverwahrung. Several inmates interviewed expressed a clear sense that they would never get out and one stated that the only thing he could do was prepare himself to die.”[213] According to the prison administration, staff worked according to special treatment criteria, the aim being the individual’s release from placement in Sicherungsverwahrung. Yet, the delegation observed that “in practice, staff (including the social worker) were conspicuous by their absence in this unit, thereby keeping staff-inmate contacts to a minimum.[214] ... The delegation gained the distinct impression that the staff themselves were not clear as to how to approach their work with these inmates. ... Psychological care and support appeared to be seriously inadequate.”[215] 81. In a visit to the Freiburg Prison’s separate unit for preventive detention in 2010, “the delegation observed that the conditions of detention of persons in preventive detention were scarcely better than those of sentenced prisoners ... it would appear that the general obligation to differentiate between these two groups of inmates (Abstandsgebot) was not effectively implemented”.[216] 82. After visiting the new Freiburg detention unit for preventive detention in 2013, the CPT stated that “it is somewhat regrettable that the entire detention unit remained rather prison-like and that the freedom of movement of inmates within the establishment and access to the outdoor exercise yard was more restricted than at Diez Prison (in particular, at weekends).”[217] In the Hohenasperg Socio-therapeutic Institution, the delegation received many complaints from inmates about the generally cramped conditions and the lack of privacy in the establishment. In the Freiburg prison, the head of the psychology service indicated that, due to the limited staff resources, it was not possible to organise individual therapy on a weekly basis, that it was not possible to reach out to those who were lacking any motivation and were unwilling to engage themselves in therapeutic measures and that it was not possible to organise milieu therapy in an effective manner[218]. The situation appeared to be even more worrying at Diez Prison. The conclusion was telling: “the visit revealed a striking discrepancy between theory and practice. Out of 40 inmates, only 24 were receiving individual therapy and only eight were participating in group therapy. ... There can be no doubt that the existing resources for treatment measures for persons in preventive detention in Baden-Württemberg and Rhineland-Palatinate were insufficient to meet the requirements of the relevant Federal and Länder legislation, namely to have a system of programmes focused on therapeutic needs and promoting individual liberty and motivation.” At both Diez and Freiburg Prisons, the delegation observed that “a significant number of inmates were not at all motivated to engage themselves in any kind of therapeutic or recreational activity, remained idle in their rooms and refused to go into the open air for months on end.”[219] 83. Regarding the issue of what he referred to as “secured custody” (Sicherungsverwahrung)[220], the Council of Europe’s Commissioner for Human Rights called for “an extremely considerate application of secured custody. Alternative measures should also be considered before recourse to secured custody is taken.” He was concerned about the rising number of people deprived of their liberty under secured custody. Furthermore, the Commissioner was informed that persons kept under secured custody regularly experience a loss of future perspective and give up on themselves. This would appear to call for the provision of psychological or psychiatric care. (iii) The comparative law standards (§§ 84-86) 84. The majority invoke the existence and legal classification of “comparable measures in other Contracting Parties to the Convention”,[221] in an implicit reference to the States’ discretion in the determination of this issue. Yet the majority do not go so far as to argue that the respondent State had a margin of appreciation in regard to the classification of the preventive detention as a penalty. As a matter of principle, there is no margin of appreciation in this field of law (classification of criminal offences and penalties), given that no derogation is allowed from Article 7 of the Convention.[222] 85. The majority divide the States surveyed into three groups. The first group of ten States[223] permits courts to issue protective measures to detain individuals who have some degree of mental disorder, albeit not to such a degree as to exclude their criminal responsibility, have been convicted of a serious offence and are found by the authorities to pose a risk to themselves or others. Under such systems, protective measures can be imposed in addition to the penalty assigned for the committed crime. The second group comprises sixteen States[224] which, while sentencing such offenders, nevertheless impose measures that permit the sentence to be served in a specialised psychiatric institution. A third group includes five States[225] where individuals who commit a crime while suffering from a mental disorder which requires compulsory mental health treatment must be treated under the ordinary civil regime for the mentally ill. The focus of the research study is on the first group. Of the ten countries that make up the first category, six[226] require the sentencing court’s judgment to comprise either an order for the preventive measure itself or the possibility of adopting the measure by the end of the prison sentence, three[227] allow the measure to be imposed after the sentence and before the termination of the execution of the sentence, and one allows both, depending on the applicable regime.[228] 86. Apart from the fact that it lacks a detailed analysis of the legal and jurisprudential context of the specific domestic norms investigated, the obvious methodological problem with the majority’s survey is that the research question – “measures ... to protect the public from convicted offenders of unsound mind who risk committing further serious offences on their release”[229] – was too broad. As a result, the report covered many measures that seem to be comparable, but at closer look are not. In sum, in the thirty-two States surveyed only three (Belgium[230], the United Kingdom[231] and Switzerland[232]) have measures with some degree of similarity to the German one. In any event, the European consensus is certainly not in favour of retrospective preventive detention, and most certainly not in favour of such measure for juveniles.[233] A very telling fact is that in France the Constitutional Council prohibited the retrospective application of a measure of preventive detention, in view of its “liberty-restricting nature”.[234] C. Preliminary conclusion (§§ 87-89) 87. In the 21st century Karlsruhe judges still favour the classical dualist model of relationship between international and domestic law. If the model is tempered by a principle of public-international-law-friendliness (Völkerrechtsfreundlichkeit) in the domestic legal system, that friendliness has effect within the limits set by the “fundamental principles of the constitution” (tragende Grundsätze der Verfassung).[235] The Convention, like any other international treaty, will only be valid domestically when it is incorporated into the domestic legal system in the proper form and in conformity with substantive constitutional law and even infra-constitutional law. 88. Despite the fact that the conception of multipolar relations derives from the area of civil law, with this construction, the Constitutional Court has empowered itself to weigh in other delicate areas, like criminal law, the consequences of observing the Court’s judgments against the expected infringements of the fundamental rights of the public or potential victims. Hence, even in areas in which absolute rights on the part of the offender are to be respected, such as criminal law, human rights are subjected to a balancing exercise, which may result in the opposite of what the Constitutional Court originally set out to achieve – namely that the application of the Basic Law could only lead to a stronger protection of Convention rights, not to their weakening. This weakening is exactly what did happen after M. v. Germany. The Constitutional Court’s claim that it is competent to recalibrate, in the light of the Basic Law, the different rights and interests at stake after the Court delivered its final judgment deprived offenders in preventive detention of their Convention right to the observance of the principle of nulla poena sine lege praevia. The United Nations and Council of Europe expert bodies have voiced strong criticism of the German solution, even after the epistemic turn-around effected in the judgment of 4 May 2011. Two years after that constitutional judgment, which severely reproached the “shortcomings” and “considerable defects”[236] of the execution of preventive detention in Germany, the CPT still concluded that the reality had not changed much. Regardless of any changes on the ground, the imposition of preventive detention, including its primary (Article 66 of the Criminal Code), deferred (Article 66a of the Criminal Code) and retrospective (Article 66b of the Criminal Code) versions, after the service of a prison sentence violates both customary international law and treaty law. Hence, the abolition of preventive detention, including its primary, deferred and retrospective versions, is the path to be taken by the German legislator in order to be in line with international law. Two risks are usually mentioned with a view to rejecting such a path. The alleged risk that it could end up aggravating the length of prison sentences is no excuse, because it could be countered with a combination of alternative penal and social therapy measures. The alleged risk that abolition would cause an increase of serious offences is nothing but scientifically unfounded, political scaremongering. 89. In comparative-law terms, the isolation of Germany is patent. No State in Europe provides for retrospective post-sentence preventive detention for adults, let alone for juveniles, held responsible for their offences by the trial court, but considered to be of unsound mind during the execution of the prison term and therefore dangerous. The majority misunderstand this fact. But their findings of the case must also be seen against the background of the Court’s minimalist understanding of the principle of legality and the current slippery slope in which the Court has embarked regarding criminal law. V. The Strasbourg Court on a slippery slope (§§ 90-128) A. The new illiberal criminal-law standards (§§ 90-110) (i) The minimalist understanding of the principle of legality (§§ 90-94) 90. The Court’s case-law enshrines a common-law understanding of the legality principle protected only in a minimal fashion, in the sense that criminal law is not interpreted in an arbitrary fashion.[237] The case-law is still distant from the higher level of protection provided by the civil-law conception of the principle of legality, which includes the guarantees of lex scripta (Gesetzlichkeitsprinzip), lex certa (Bestimmtheitsgebot), lex stricta (Analogieverbot) and lex praevia (Rückwirkungsverbot). 91. Under the heading of lex certa, the Court deals with the clarity, foreseeability and accessibility requirements of criminal law. As can be seen for example in Kokkinakis,[238] Grigoriades [239] and Flinkkilä and Others,[240] the clarity standard is often assessed at the time of conviction, under the lawfulness test of Articles 8 to 11 of the Convention, and not at the time of commission of the offence.[241] The accessibility requirement is only examined thoroughly when there are clear signs to the contrary, accessibility being assumed when the offence is included in a criminal code.[242] Furthermore, the case-law has been rather undemanding on the review of the wording of the statutory provision for the purpose of assessing its foreseeability, often accepting vaguely worded offences, because the impugned statutory concepts are “matters of common knowledge and widely understood”.[243] The Court’s limited standard of protection is further loosened by the consideration of sufficiently consistent interpretative case-law at the time of the offence, which can satisfy the foreseeability requirement in case of vaguely worded offences[244] or even of common-law offences, which breach the lex scripta requirement.[245] The same philosophy had been applied to the increase of penalties consistent with a certain line of case-law on the effects of recidivism.[246] In sum, the acceptance of multiple sources of law and case-law for the purposes of the lex certa requirement leads to legal uncertainty. 92. Under the heading of lex stricta, the Court merely rules out unreasonable interpretations. Normally, two requirements are put forward in this regard: the interpretation must be aligned with the essence of the offence and must be reasonably foreseeable.[247] Ultimately, the two requirements overlap insofar that they end up testing the reasonableness of the domestic courts’ interpretation.[248] Hence, there is no added value in distinguishing between the two requirements. The severity of the offence is also invoked as an element of foreseeability, considering the criminalisation of certain serious offences as “obvious”.[249] At the end of the day, the level of protection is case-dependent and individually assessed, depending on possible legal advice and the defendant’s professional status and technical capacity.[250] In other words, the lex stricta and the lex certa requirements conflate in the same kind of subjective foreseeability test. Worse still, this standard lends itself to theoretical and practical dogmatic confusion, since it mingles issues of different nature, namely the principle of legality and the principle of guilt (ignorantia legis non excusat, mistake of law, Verbotsirrtum). This confusion is aggravated in the case of a blanket legal norm, which makes the punishability of the criminal offence dependent on non-criminal laws and regulations.[251] 93. With regard to the jurisprudential development of criminal law, the Court uses the same twofold test (the essence of the offence test and the foreseeability test), but normally does not allow for an overly extensive interpretation.[252] Yet in some other instances,[253] the Court has proposed a much stricter criterion, namely the strict interpretation of criminal law.[254] Between the two criteria, the Court has accepted gradual interpretative expansion of the offence[255] and of the penalty.[256] The same inconsistency can be found with regard to the Court’s standard of assessment of facts and national law in the field of criminal law. If Kononov[257] shows a higher power of review that seems to arise because no derogation is allowed to the provision at issue, in some other instances, like Khodorkovskiy,[258] a much weaker standard for the Court’s assessment is assumed. 94. The core of the Court’s protection of the principle of legality is the nullum crimen sine lege praevia. As long as the conviction and the penalty are formally based on the rules applicable at the material time, no violation of Article 7 of the Convention will be found. This also applies to continuous offences.[259] With regard to the nulla poena sine lege praevia, Maktouf and Damjanovic[260] ensured an enhanced protective approach, since the mere possibility of any heavier penalty suffices to prohibit the retrospective applicability of the law, on the basis of a concrete and global determination of the lex gravior.[261] The public interest in the protection of victims and society does not justify the retrospective application of the lex gravior.[262] (ii) The “erasure” of the autonomous meaning of “penalty” (§§ 95-107) 95. The applicant claims that his retrospectively ordered preventive detention, executed on the basis of the Regensburg Regional Court’s judgment of 3 August 2012 from 20 June 2013 onwards in the Straubing Prison preventive detention centre, breached and still breaches his right not to have a heavier penalty imposed than the one applicable at the time of his offence in June 1997. 96. In line with the Government, the majority set themselves the difficult task of arguing that jailing a person in a preventive detention centre after the commission of a criminal offence is nevertheless not a “penalty” for the purposes of Article 7 of the Convention. The majority do not differentiate between “nature” and “purpose” of the measure, nor they provide any methodological hint on how to differentiate the two, but they acknowledge three “purposes” pursued by the applicant’s preventive detention: a “punitive” one[263], a “preventive” one[264] and a “therapeutic” one[265]. However, their focus on the conditions of detention reveals the implicit premise that the “nature” or “purpose” of the measure is determined by how the measure is implemented. In fact, they invoke the material and living conditions provided to those interned in the Straubing detention centre, how they can choose their own clothes, have larger cells, specialised treatment, and so on. According to the majority, the “preventive” and “therapeutic” purposes “erase” the “punitive element” of the measure to such an extent that it is no longer a penalty. [266] However, this reasoning omits some crucial legal considerations. 97. Firstly, a “preventive” purpose is not foreign to penalties, but closely linked to them. Prevention is at the core of many theories of punishment: punishment is usually said to prevent the convicted person from committing more offences while he or she is locked up (through incapacitation or negative special prevention) and afterwards (through resocialisation or positive special prevention). Similarly, punishment is said to prevent crime generally, through deterrence of would-be offenders (negative general prevention) and the signalling of norm enforcement (general positive prevention).[267] Therefore, the “preventive” purpose of a measure by no means rules out its punitive character. As the Court long ago put it in Welch, “the aims of prevention and reparation are consistent with a punitive purpose and may be seen as constituent elements of the very notion of punishment”[268]. 98. Secondly, the “nature” and the “purpose” of preventive detention are not to be predicated on the detention conditions, but on the legal act that provided for that detention. In this regard, the majority’s understanding of preventive detention ignores the fact that in the German system, as demonstrated above, preventive detention was, in essence, a measure to incapacitate the “bad” and not a measure to treat the “mad”, and therefore lacked any specific therapeutic purpose, as Article 66b of the Criminal Code today still shows. 99. It cannot be maintained that the “nature” or “purpose” of a penalty can be changed retrospectively when the material conditions of detention improve. The misleading nature of this construction becomes very apparent if one asks about the exact time when the detention changed “nature” or “purpose”: under the majority’s reasoning, after the addition of exactly how many square meters does preventive detention cease to be punishment, according to M. v. Germany,[269] to become an acceptable therapy placement? Of course, this rhetorical question could be further complicated: how many kitchen units, how many separate bathrooms, how many TV sets or body-building machines, how many doctors and nurses, how many visiting hours or phone calls should there be for a preventive detention unit to change nature and for detention therein to change its “purpose”? Since the detention conditions vary greatly from one preventive detention centre to another[270], how can the preventive detention order change nature according to the part of the country and the specific centre where is it going to be implemented? Can the same preventive detention order change nature multiple times when the detained person changes from a “friendlier” centre to another less “friendly” centre and back again to the first one? 100. As regards the procedures leading to the measure, the majority acknowledge that the preventive detention was imposed by courts belonging to the “criminal justice system”.[271] However, the majority play down the importance of this very telling circumstance, having regard to “the Government’s argument that the courts belonging to the criminal justice system were particularly experienced in assessing the necessity of confining mental-health patients who have committed criminal acts” and observing that “the criteria for the imposition of preventive detention would have been the same” irrespective of whether the measure was imposed by a civil or criminal court.[272] As the majority note, the fact that criminal courts are responsible for applying preventive detention is a strong indicator of its criminal character. However, I would just point out that I fail to see how the Government’s argument concerning the expertise of criminal courts would do anything in their favour. Precisely, criminal courts have experience of assessing accused persons’ mental capacity for the purpose of adjudicating criminal responsibility, and not for the purpose of providing treatment. If anything, criminal courts’ expertise should add to the qualification of preventive detention as a criminal penalty rather than the contrary. 101. The final criterion which the majority use to assess the criminal character of the measure is its severity. From the outset the majority note that there is no maximum length of preventive detention, but they water down its punitive character by stressing that it has no minimum duration either, is subject to judicial review at relatively short intervals and depends to some extent on the applicant’s “cooperation in necessary therapeutic measures”.[273] 102. It is telling that the majority consider the fact that the measure is subject to periodic judicial review as some sort of “alleviating”[274] circumstance. If preventive detention were a therapeutic measure primarily aimed at the rehabilitation of inmates, judicial review would not be a graceful concession to them, but a part of the very functionality of the detention. The fact that they recognise this feature of the detention as part of the effort to reduce its severity shows to what extent even the majority cannot overlook its obvious punitive character. In addition, even assuming that the degree of adhesion of the convicted persons to a measure determines its rate of success, this rate has nothing to do with its nature, purpose or severity, for the simple reason that there may be multiple, contingently determined reasons why the individuals in question do not adhere to the measure. 103. In practice, courts regularly conclude that the institution has offered adequate treatment but the detained person has not accepted the offer. The detained person in total institutions[275] is not on an equal footing in terms of proving whether it was due to the institution and not him or her that therapy had been insufficient. According to empirical evidence from the time before the introduction of Article 66c of the Criminal Code, the institutions regularly shifted responsibility towards the prisoners. Since no safeguard exists with regard to the burden of proof, it cannot be ruled out that this is still often the case today. In any event, the lack of credible statistical evidence cannot be used against the prisoners.[276] 104. In sum, the majority abandon the autonomous meaning of the word “penalty” in Article 7 of the Convention, indeed they abandon the principle of autonomous interpretation of the Convention, which was crafted to avoid the Court being trapped in the intricacies of domestic law and allow it to go behind appearances. Interestingly, the majority do not recall the considerations to that respect that the Court made in M. v. Germany.[277] There, the Court said that, even though the “preventive detention” was considered a security measure in German law, the concept of “penalty” in Article 7 is autonomous in scope and it is thus for the Court to determine whether a particular measure should be qualified as a penalty, without being bound by the qualification of the measure under domestic law. 105. It is the exact opposite that has prevailed in the present case. Following the spirit, and even the letter, of the Constitutional Court’s May 2011 judgment the majority do not classify as a “penalty” preventive detention applicable to convicted offenders, ordered by criminal courts, aimed at prolonging the detention after the service of the prison sentence, in the same prison, on the basis of evidence obtained prior to the end of the prison term, and whose subsequent implementation was to be determined by the courts responsible for the execution of sentences, as happened in the applicant’s case. 106. As in Bergmann,[278] the majority are “transubstantiating” preventive detention by erasing the autonomous meaning of the “penalty” concept. As in Bergmann, the majority are accepting a trade-off between the underrogable principle of legality of penalties and the quality of prison conditions and thus downgrading the level of protection of Article 7 to a mere bargaining exercise on the conditions of execution.[279] 107. The measure of confusion of the majority’s reasoning can be perceived in the way they mix law and facts and equate sentencing and enforcement of penalties, in the pivotal paragraph 207 of the judgment. It is true that the interpretation of Article 7 § 1 of the Convention proposed in the most unfortunate paragraph 207 of the judgment is limited to the “some rare cases” mentioned in the previous paragraph. There is only one, very unsatisfactory justification for the “rarity argument” to be used here by the majority: they know that they are entering uncharted, dangerous territory in paragraph 207 and want as far as possible to limit the scope of the proposed interpretation and the ensuing collateral damage caused to the basic foundational principles of modern criminal law and the principle of legality as we have known it since Anselm von Feuerbach coined in § 24 of his Lehrbuch des gemeinen in Deutschland geltenden peinlichen Rechts of 1801 the Latin expression nulla poena sine lege. The limited scope of applicability of the interpretation proposed in paragraph 207 does not detract from the fact that it constitutes a heresy in criminal law. (iii) The catch-all construction of “person of unsound mind” (§§ 108-110) 108. The Court’s case-law is not consistent on the scope of the concept of “person of unsound mind” under Article 5 § 1 (e) of the Convention. It is telling that the draft Therapy Placement Act explicitly refers to the case-law of the Court and the Commission, such as X. v. Germany,[280] in order to argue that the concept of person of unsound mind includes people with abnormal personality features not equated to a mental illness[281]. The draft law also referred to Hutchison Reid v. the United Kingdom[282] and Morsink v. the Netherlands [283] to make the point that the criminal liability of an offender does not exclude the possibility of confinement under Article 5 § 1 (e) of the Convention, which would allow for systematic and unlimited confinement of offenders independent from the question of their criminal liability and, even more, regardless of the impossibility of clinical treatment.[284] 109. Taking advantage of this impossibility, the domestic courts decided that “mental disorder” did not have to be so serious as to exclude criminal liability (Article 20 of the Criminal Code) or diminish it (Article 21 of the same Code).[285] The applicant argues that the domestic courts’ concept of “mental disorder” is wider than the notion of “unsound mind” enshrined in Article 5 § 1 (e) of the Convention. The majority in the present judgment are undecided: on the one hand, they say that the notion of “unsound mind” “might be more restrictive” than that of “mental disorder”,[286] but on the other hand they say that the notion of “unsound mind” does not warrant a mental condition that excludes or even diminishes criminal responsibility.[287] With this convenient ambiguity, the door is wide open to establish “a disorder which can be said to amount to a true mental disorder”[288] and “treat” dangerous offenders as “mentally ill” or “mentally disordered” persons and keep them detained for the rest of their lives, even on the basis of a detention regime that did not exist at the time of the commission of the offence. 110. In sum, although the list of grounds of detention in Article 5 § 1 must be interpreted narrowly, the majority do just the opposite: they embark on an expansive interpretation of its sub-paragraph (e), which becomes a convenient catch-all. The way to keep the “bad” behind bars until they die is to mislabel them as “mad”. This is the price to be paid to get rid of the Article 7 protection. B. The overly repressive approach to the present case (§§ 111-126) (i) The biased determination of the applicant’s “mental illness” (§§ 111-115) 111. The trial court decided that the applicant had had full criminal responsibility at the time of commission of the offence, in spite of the fact that there were certain elements indicating the beginning of a sexual deviation.[289] The Regensburg Regional Court found that the applicant at the relevant time was still suffering from a sexual preference disorder, namely sexual sadism, as defined by the ICD‑10. The applicant’s condition amounted to a mental disorder for the purposes of Article 1 § 1 of the Therapy Detention Act. 112. The applicant argues that he did not suffer from a mental disorder.[290] The majority state that the domestic courts have “certain discretion in particular on the merits of clinical diagnosis”.[291] But there are limits to this hands-off approach.[292] In the present case, more than half of the experts are of the view that it was not established that the defendant suffers from a mental illness: experts S (20 April 1999), Z (6 October 1999), R (8 October 2003), F (24 November 2011)[293] and MK (27 September 2016) concluded this way, while experts O (16 January 2006), M (6 January 2006), B (15 January 2009) and K (12 December 2011)[294] concluded the opposite. Furthermore, the fact that contacts with psychologist MK were discontinued by the centre in May 2017, because MK saw no sign of any “hidden sadistic undercurrent” (larvierte sadistische Grundströmung)[295] in the applicant, raises serious doubts as to how independent the domestic authorities’ diagnosis is. These doubts are compounded by the fact that none of the experts heard was properly qualified for the specific case of a young adult offender. Neither expert K nor expert F nor any other expert was qualified to examine young people, as required by domestic law[296] and constitutional case-law.[297] 113. As regards the scientific quality of the diagnosis itself, it should be noted that the soundness of such diagnosis was manifestly hindered by the fact that the alleged mental illness (sexual sadism) was established fifteen years after the criminal facts took place. In fact, the criminal division of the regional court delivered its decision on 2 August 2012[298] while the facts occurred in 1997.[299] To complicate things even further, the applicant was a first offender. This fact is simply ignored by the majority, who wrongly assume that the applicant had a “history of offences”.[300] 114. The clinical finding by persons lacking the requisite specific expertise of a mental illness in a 19-year-old first offender fifteen years after the commission of the offence is a purely divinatory exercise of personality second-guessing. But the present case goes beyond this. The case of Mr. Ilnseher is not only a masterpiece of scientific mumbo-jumbo, it is a case of biased State exercise of punitive power. A wrong is unredressed when retribution overtakes the redresser. That is what happened with judge P. 115. The finding of the regional court that the applicant had “hidden”[301] the sadistic motives for his offence at his trial in 1999 and only admitted to them in “2005/2006” adds an even more worrying note to this case. The regional court did not consider the possibility that, in view of the diverging motives the applicant had given for his conduct, the alleged sadistic motives, which had not been established at the time of the conviction, might have been a rhetoric developed his time in prison, in view of the negative effects of the environment where the applicant had been kept and the avowedly inadequate care he had endured during his ten-year prison term (up until July 2008) and beyond that term. Instead the regional court not only assumed that the applicant had fooled the two medical experts who had examined him at that time, but also presupposed that the applicant had a duty to cooperate with the prosecution. In other words, the domestic judges ignored the sacrosanct principle nemo tenetur se ipsum accusare (“no one is bound to incriminate himself”) and drew negative inferences from his supposedly uncooperative behaviour. In this scenario, which is already hostile to the defendant, the mounting serious doubts about the independence of the first instance court become a certainty if one considers the unfortunate, unprofessional misconduct of Judge P. The biased position of Judge P. not only weakened an already scientifically shaky case against the applicant, but it definitively tainted the lawfulness of the applicant’s detention order. The subsequent considerations will elaborate further on this issue. (ii) The unlawfulness of the applicant’s detention order (§§ 116-121) 116. The Government accept that the preventive detention order was unlawful with regard to the period until 20 June 2013, but argue that that same order is lawful with regard to the subsequent detention. The Government defend that a measure can lose its previously punitive character during the execution of the measure on the basis of the same court order, because it would be “overly formalistic” to require a new judicial decision.[302] Criminal law is about strict formality, but the Government invite the Court to forget this axiomatic truth. Regrettably, that is exactly what the majority choose to do. 117. In spite of the fact that the Regional Court did not order, in its judgment of 3 August 2012, the execution of the applicant’s preventive detention in a particular facility, he was moved on 20 June 2013 to another prison facility. The majority are faced with an awkward question: on the one hand they have to detach the preventive detention order from the applicant’s criminal conviction for the commission of an offence with full criminal responsibility in order to justify its alleged non-punitive nature, but on the other they have to attach that same detention order to the offence, because the conviction for an offence was a precondition for the preventive detention, according to domestic law (Article 7 § 2 of the Juvenile Courts Act). Like the domestic authorities, the majority square the circle, by achieving the miracle of “transubstantiating” the nature of the preventive detention order. The preventive detention order against the applicant is described, for the purposes of Article 5 of the Convention, as “linked to the conviction – and thus “following” the latter as it was a precondition for the preventive detention order under that provision.”[303] For the purposes of Article 7 of the Convention, the link between the preventive detention order and the offence is “not completely severed”.[304] Yet at the same time the majority conclude that the “punitive element of preventive detention and its connection with the criminal offence committed by the applicant was erased to such an extent in these circumstances that the measure was no longer a penalty.”[305] 118. The one-thousand-dollar question is this one: how can a “link” (or a “connection”) be “erased”, but “not completely severed”? The linguistically awkward way in which the majority express themselves is the best evidence of the fallacious nature of this line of reasoning. In Bergmann, the talk was about the “eclipse”[306] of the punitive element, now it is about the “erasure”[307] of that element. Surprisingly, the majority even acknowledge that the “improved material conditions and care” do not change the nature of “ordinary” preventive detention, since they do not “erase the factors indicative of a penalty”.[308] The choice of this language is an enigma for me. I am puzzled with this language which finds support neither in present day German criminal law, nor in any other domestic criminal law nor in international criminal law, but in the worst Nazi prototype of Täterstrafrecht, the draft of a Gemeinschaftsfremdengesetz,[309] which was supposed to eclipse the connection between the criminal offence and punishment for the protection of the community, since “the means of criminal law were not sufficient, because penalties and measures of correction and prevention, including preventive detention, are always connected to concrete criminal offences.”[310] The linguistic scrabbling does not end here. The majority make an effort to get rid of the well-established term “retrospective” for the translation of the German term nachträglich, in order to give the impression that the prospective element of the preventive detention order prevails over the retrospective one.[311] The choice of the expression “subsequent prevention detention” to translate the expression nachträgliche Sicherungsverwahrung is particularly problematic because the former expression evidently overlaps with the other modality of the Sicherungsverwahrung, namely the vorbehaltene Sicherungsverwahrung (deferred preventive detention), which is also applied on the basis of a subsequent assessment of the preventive needs of the detainee. The majority do not care to distinguish and contrast the two concepts.[312] One thing is certain, however. Whatever the babble, it cannot obscure the fact that nachträgliche Sicherungsverwahrung is a post festum attack on the foundations of criminal law as it has been known and practiced for the last two hundred years, at least in democratic regimes. 119. In spite of the apparent terminological change, the majority cannot turn a blind eye to the fact that the assessment of the applicant’s dangerousness and preventive needs is “retrospective”.[313] Preventive detention cannot be judged in isolation from the legal provision which was the basis of the court decision. According to German law, a deprivation of liberty may only be ordered on the basis of a written law and only by a judge (Article 104 of the Basic Law). Thus the reasons given in the deprivation of liberty order are paramount. Furthermore, the lawfulness of the imposed measure may not be judged in isolation from the time previously spent in custody. As set out in Article 66c § 2 of the Criminal Code, there is no strict separation between the services of a prison term and of preventive detention, and hence any prior periods of detention of a convicted person are an inseparable part of the subsequent measure. The Court itself, in M., found a link between the 10-year long detention and the conviction.[314] 120. The commission of an offence for which the applicant was found guilty is the legal basis for his punishment and for the retrospective assessment of his dangerousness, and to that extent the preventive detention order is a punitive measure, the exact same legal measure that the Government considered unlawful. I think the majority are understating the importance of this single finding. Had there not been a criminal conviction in this case, the Court would most likely have declared the application inadmissible concerning Article 7 and the analysis would have been confined to Article 5. The retrospective preventive detention at issue in this case is only applicable to persons who have committed a criminal offence and who were found to be criminally responsible for it – a “precondition”, in the majority’s own terminology. But a State coercive measure that has the commission of a criminal offence as a “precondition” can only be a penalty. Not only is preventive detention subject to the requirement of a criminal conviction, but also the criminal offence or offences committed must be of a certain kind and gravity. According to the Juvenile Courts Act, these orders can only be directed against people sentenced to at least seven years’ imprisonment for crimes against life, physical integrity or sexual self-determination, or some other specific offences[315]. Indeed, it is telling that the majority did find Article 7 applicable to this case, and therefore the application admissible. If the applicant’s preventive detention were not a penalty under Article 7, its retroactivity would not be an Article 7 issue and the application would have been found inadmissible in this regard. Had they been consistent, the majority would have had to find the Article 7 complaint inadmissible. Once the Court acknowledges that the applicant’s preventive detention is a penalty, the retroactivity becomes simply too obvious and impossible to ignore. The majority’s reasoning is an awkward middle way: they find the Article 7 complaint admissible, but nevertheless conclude that the applicant’s preventive detention is not a penalty. More than denouncing this patent logical mistake which could arguably have impacted on the assessment of the Article 7 complaint’s admissibility, I would like to state the obvious: in a case like this, a finding of a violation of Article 7 of the Convention inexorably follows a finding of admissibility. 121. The preventive detention order is further tainted by the continuing unlawfulness resulting from the lack of independence of Judge P. No question of a lack of judicial impartiality arises when a judge has already delivered purely formal and procedural decisions in other stages of the proceedings.[316] However, serious problems with impartiality may emerge if in other phases of the proceedings a judge has already expressed an opinion on the defendant’s conduct, guilt or dangerousness[317]. In the present case, the minimum that Judge P. should have done in 2012 was to withdraw from the bench, in view of the fact that he had expressed himself both as member of the Regional Court and, to make things worse, in an unfortunate aside to the applicant’s lawyers on 22 June 2009 after delivery of the preventive detention order and before it became final. The content of this remark was not neutral: it referred to the applicant’s personality and dangerousness. To my mind, it is simply unconceivable that the same judge who had made such an inappropriate, unprofessional, biased remark on the applicant’s personality and future conduct could have become a member of the bench ordering the applicant’s retrospective detention anew on 3 August 2012. This conduct taints the lawfulness of the detention order and therefore of the entire preventive detention. (iii) The “special sacrifice” of the applicant’s preventive detention (§§ 122-126) 122. The applicant was sentenced to a 10-year prison term on 29 October 1999, and he finished serving his penalty on 17 July 2008.[318] After being remanded in provisional preventive detention on that day, he was given a retrospective preventive detention order under Article 7 § 2 (1) of the Juvenile Courts Act on 22 June 2009. On 6 May 2011 he was again placed in provisional preventive detention, following the quashing of the previous retrospective preventive order. On 3 August 2012, a retrospective preventive detention order was imposed on him, which is still in force today.[319] 123. The applicant complains not only about the quality of the treatment provided in the new detention centre, the availability of therapeutic staff, the separation in terms of organisation between the Straubing prison and its preventive detention centre, but also about the fact that this latter facility was occupied by a majority of people not suffering from a mental disorder.[320] Without any consideration of the CPT’s critical assessments of similar detention centres mentioned above and any impartial evaluation of the Straubing preventive detention centre, the majority piously believe the Government. They side with them in the assessment of the situation on the ground. In other words, the Court dilutes the autonomous meaning of the Article 7 concept of “penalty” on the basis of untested governmental information on the functioning of the national system of preventive detention and the particular centre where the applicant is confined.[321] This choice is all the more unacceptable in the light of the international and European consensus contrary to retrospective preventive detention, as shown above. 124. The facts of this particular case are telling in this regard, because during the first period of his preventive detention the applicant received no therapeutic care whatsoever.[322] Indeed, the majority recognise that “the Regional Court... had only generally ordered his preventive detention” (my emphasis) and therefore the same detention order covered the applicant’s preventive detention in the Straubing prison first and in the Straubing detention centre later.[323] This “generality” should have appalled the majority rather than moved them to show indulgence towards the Regional Court. That the Regional Court ordered the preventive detention in general terms shows that the therapeutic purpose of such detention was ultimately irrelevant: as long as the applicant was indeed locked up, therapeutic measures were ornamental. In this regard, there is a huge difference between the present case and Bergmann. In the latter, the applicant was a recidivist who had been diagnosed by the trial court with a mental illness already at the time of the offence and had already been transferred into the newly-built institutions appropriate for offenders with a mental-health condition when the continuation of preventive detention was ordered under the conditions laid down in the second sentence of section 316f (2) of the Introductory Act to the Criminal Code.[324] In contrast, in the present case, the applicant was a first offender, acted with full responsibility at the time of the offence, was detained at the time of delivery of judgment by the Regional Court (3 August 2012) in conditions not complying with the Convention and was only transferred to the new centre for preventive detention two years later. 125. To prove the transubstantiation of Sicherungsverwahrung in the applicant’s case into something other than a “penalty”, the majority invoke the existence of individualised medical and therapeutic treatment in accordance with an individual treatment plan, even if he did not accept this offer.[325] The majority’s core argument is that treatment is now “at the heart of that form of detention”[326]. To be crystal-clear: this argument cannot be used to distinguish preventive detention orders from prison sentences for the simple and prosaic reason, already mentioned above, that the latter should also aim at treatment on the basis of an individualised treatment plan, according to the European Prison Rules[327] and the international prison standards[328] which have already been incorporated into the Court’s case-law on Article 3 of the Convention.[329] 126. Ultimately, the majority disregard the severity of the imposed measure as being decisive in itself,[330] contradicting their facts-oriented evaluation of the detention conditions. It is notable that in a judgment that is intended to defend the “therapeutic” nature of a coercive measure there is no mention of the concrete benefits that the applicant has received and is receiving in the Straubing detention centre. If the majority truly believe that the preventive detention in the present case is indeed primarily a therapeutic measure, one would expect them to comment, at least to some extent, on how its benefits compensate its drawbacks. For the majority, the fact that a 19-year-old first offender is still imprisoned today, having completed the service of his penalty on 17 July 2008, seems not much of a sacrifice. Nor are they much impressed by the circumstance that the applicant was 35 years old at the time of the preventive detention order and that therefore this potentially life-long imprisonment could be longer than for other offenders under the same kind of detention. But this is nothing new: the Constitutional Court itself confessed, in the applicant’s own constitutional appeal, that preventive detention was an “extremely serious” (äußerst schwerwiegend) encroachment upon the fundamental right to liberty which imposed on those targeted a “special sacrifice” (Sonderopfer)[331] in the interests of the community. Indeed, the applicant has been under retrospective preventive detention (and previously under provisional preventive detention) for ten years now as a “scapegoat” to quench the punitive needs of the community. C. Preliminary conclusion (§§ 127-128) 127. The Court’s understanding of the principle of legality has been minimalist, based on a test of subjective foreseeability. Lex certa and lex stricta requirements under Article 7 of the Convention have provided limited protection to accused persons. The deferential approach towards domestic criminal courts leaves extensive leeway for repressive, case-dependent application of the principle of legality. The only effective realm of protection was until now the requirement of lex praevia. This no longer seems to be the case. The retrospective conversion of a time-limited punitive security measure into a potentially life-long pseudo-medical confinement measure imposed on convicted offenders with ex nunc established “mental disorders” is an historically and dogmatically unreasonable, let us say it, abusive interpretation that not only goes beyond the nature and purpose of the measure of preventive detention, but circumvents the prohibition of nulla poena sine lege praevia guaranteed in a State governed by the rule of law. By putting its uncontested moral authority behind the political choice made by the legislator in the “Act on Therapy and Detention of Mentally Disturbed Violent Offenders”,[332] the Constitutional Court acted as a facilitator of the political majority,[333] not as a guarantor of the fundamental rights of the Basic Law read in a public-international-law-friendly manner.[334] By acquiescing to a strategy of apparent compliance with the Convention guarantees, while in substance departing from the core message of the Court that Sicherungsverwahrte have a Convention guarantee to nulla poena sine lege praevia, the Karlsruhe court chose to align itself schematically with Berlin, and not with Strasbourg. 128. The Constitutional Court decided to adapt domestic law to some extent to Article 5 § 1 (e) of the Convention, by means of a construction of detention of convicted offenders with alleged “mental disorders”. But this construction was applied only to historic cases of preventive detention, resulting for those cases in the intended result of keeping the targeted detainees in custody. The Karlsruhe judges did not apply this construction to future preventive detention cases. For the latter, the Constitutional Court only imposed the requirement of a distinction to be respected, but did not draw any connection with the necessity of a mental disorder. This is the reason why, as the applicant claimed, only a minority of the persons in preventive detention in the new Straubing centre were detained as mental health patients. Since the criteria for categorising these institutions as being institutions for mental health patients follow legal categories, and not medical ones, it is more than comprehensible to ask whether these institutions are in fact also psychiatric. The same institution cannot simultaneously be a psychiatric institution for some detainees and not for others. If for the majority of those detained in such an institution it is not reasonable to operate it as institution for mental-health patients, it would have to be ascertained whether it can be and actually is a psychiatric institution for the minority. On the contrary, if such an institution were a psychiatric institution, there would be a pressing need to justify the confinement of non-mental-health-patients (the “regular” Sicherungsverwahrten) in this environment, because it is inappropriate to treat such detainees as if they were mental health patients. The Government failed to meet this need in the present case. VI. Final conclusion (§§ 129-130) 129. The present case brought to my memory one afternoon of August 1995 in Freiburg-im-Breisgau. While talking with Hans-Heinrich Jescheck on the renaissance of the Feindstrafrecht,[335] he confessed that what he feared most in Europe was the misuse of criminal law by unthinking political majorities without objection by complicit courts. He regretted that Europe had not learned from History. 130. It is unsurprising that politicians play at the very edge of respect for the Convention, or even beyond this limit, and resist the Convention values and the Court’s judgments in polemic, if not plainly demagogic, moves to gain political support from this or that constituency. If human rights have a basic purpose, it is precisely to be “trump cards” that protect individuals’ fundamental rights against the oppressive actions of ill-advised majorities. This is particularly true in the case of easily disposable minorities, such as prisoners or migrants. Politicians that emerge from these majorities should comply with international human rights in general and with the Convention in particular, since every State official is bound by human rights law and the Convention contributes to promoting a “joint European development of fundamental rights” (gemeineuropäische Grundrechtsentwicklung).[336] This includes, of course, the members of Parliament who enacted the provisions that allow for retrospective preventive detention and approved a shameful intuitu persona law to keep Mr Ilnseher detained forever. What is truly disheartening is that constitutional and supreme courts all over Europe are also resisting the application of the Convention values and the Court’s judgments, shifting their role from guarantors of the rule of law to facilitators of the exercise of power by politicians.[337]We have seen this happening in other countries of Europe, where docile judges make jurisprudence amenable to political majorities. Sadly, now it is the turn of the German Federal Constitutional Court and its unapologetically faithless reading of M. and its progeny in the sense of the inapplicability of the principle nulla poena sine lege praevia to preventive detention. By rubber-stamping the Karlsruhe court’s stance, against the crystal-clear and longstanding standards of customary international and treaty law and the consensus reigning in comparative law, the Court is taking one step more towards the legal periphery in Europe. While finding that the imposed preventive detention was a retrospective “penalty” in breach of Articles 7 and 5 § 1 of the Convention, I plead for the central role of the Court in the defence of modern criminal law principles and the safeguard of human rights in Europe. [1] The International Statistical Classification of Diseases and Related Health Problems (10th Revision), the ICD-10, is issued by the World Health Organisation. The ICD is the international standard tool for classifying diseases and health conditions. It defines diseases, disorders, injuries and other related health conditions, listed in a comprehensive, hierarchical fashion. [2] Offenders from 18 to 21 years of age at the time of the commission of the offence. [3] Offenders from 14 to 18 years of age at the time of the commission of the offence. [4] For reasons that I will explain below, I use the word “retrospective” with reference to nachträgliche Sicherungsverwahrung. [5] The issue of the lawfulness of the applicant’s detention as a person “of unsound mind” under Article 5 § 1 (e) of the Convention arises because that period of preventive detention was not considered as a “penalty” for the purposes of Article 7. If that period of preventive detention were considered as a “penalty” for the purposes of Article 7, the detention would be tested under Article 5 § 1 (a) of the Convention. [6]. Habitual Offenders’ and Security Measures Act (Gesetz gegen gefährliche Gewohnheitsverbrecher und über Maßregeln der Sicherung und Besserung), of 24 November 1933. On this law see Michael Wagner-Kern, Präventive Sicherheitsordnung. Zur Historisierung der Sicherungsverwahrung, Berlin: Berliner Wissenschaftsverlag, 2016; Christian Müller, Das Gewohnheitsverbrechergesetz vom 24. November 1933, Kriminalpolitik als Rassenpolitik, Baden-Baden: Nomos, 1997; Jörg Kinzig, Die Sicherungsverwahrung auf dem Prüfstand: Ergebnisse einer theoretischen und empirischen Bestandsaufnahme des Zustandes einer Maßregel, Freiburg: iuscrim, 1996; and Joachim Hellmer, Der Gewohnheitsverbrecher und die Sicherungsverwahrung 1934-1945, Berlin: Duncker &Humblot, 1961. [7] Articles 42 e, 42 f Criminal Code of the German Empire. [8] SA stands for Sturmabteilung, which was a paramilitary force of the National Socialist Party during the Weimar Republic. After the taking of power by the Nazi Party, it became a Hilfspolizei under Göring. In 1945 the Allied Control Council prohibited and dissolved this organisation. [9] SS stands for Schutzstaffel, which was the military force responsible for the management of the concentration and extermination camps. Although it was initially a Nazi organisation, it was merged with the regular police under Himmler. In 1945 the Allied Control Council prohibited and dissolved this organization. [10] Gestapo stands for Geheime Staatspolizei, which was the secret political police of Hitler. In 1945 the Allied Control Council prohibited and dissolved this organization. [11] Article 5 § 1 of the Criminal Code of the German Empire. [12] Article 5 § 2 of the Criminal Code of the German Empire: “... so kann das Gericht die Sicherungsverwahrung des Verurteilten nachträglich anordnen, wenn die öffentliche Sicherheit es erfordert. ….” [13] Joachim Hellmer, Der Gewohnheitsverbrecher..., cited above, p. 16. [14] Tobias Mushoff, Strafe-Maßregel-Sicherungsverwahrung: eine kritische Untersuchung über das Verhältnis von Schuld und Prävention, Frankfurt: Lang, 2008, p.25, footnote 118. [15] The Richterbriefe were political guidelines directed to the judges for the performance of judicial work. If they all make for grim reading, Richterbrief Nr. 4 is particularly striking: “Stellungnahme des Reichsministers der Justiz Thierack zur „Bekämpfung Asozialer“: „Der rücksichtslose Kampf gegen das Berufs- und Gewohnheitsverbrechertum steht seit der Machtergreifung durch den Nationalsozialismus im Vordergrund der gesamten Verbrechensbekämpfung. …Bereits im Jahr der Machtübernahme wurde dem gefährlichen Gewohnheitsverbrecher durch das Gesetz vom 24. November 1933 mit der Erhöhung der Strafen (§ 20 a RStGB) und Einführung der Sicherungsverwahrung ein unerbittlicher Kampf angesagt. … Der gefährliche Gewohnheitsverbrecher, der sich stets von neuem an der Volksgemeinschaft vergreift, war schon im Frieden ein Parasit am Volkskörper; im Kriege ist er ein Schädling und Saboteur der inneren Front erster Ordnung.…Der Gesetzgeber hat daraus die erforderlichen Folgerungen gezogen und dem Richter die Mittel an die Hand gegeben, mit denen dieser den Kampf gegen den unverbesserlichen Gewohnheitsverbrecher nunmehr bis zur Vernichtung dieser Fremdkörper der Gemeinschaft fortführen kann…”, http://www.wienerlibrary.co.uk/Search-document-collection?item=551 [16]. Annemarie Dax, Die Neuregelung des Vollzugs der Sicherungsverwahrung: Bestandsaufnahme sowie kritische Betrachtung der bundes- und landesrechtlichen Umsetzung des Abstandsgebots, Berlin: Duncker & Humblot, 2017, p. 38, and Tobias Mushoff, Strafe-Maßregel-Sicherungsverwahrung..., cited above, p. 25. [17] Ibid. [18] Christian Müller, Das Gewohnheitsverbrechergesetz..., cited above, p. 22. [19]. The Council had initially recommended the suppression of the preventive detention regime, considering it as typical Nazi denial of the right to liberty, but the Cold War and the related tensions between the allied forces led to the failure of the reform. See Michael Wagner-Kern, Präventive Sicherheitsordnung…, cited above, p. 60; Jan-David Jansing, Nachträgliche Sicherungsverwahrung, Entwicklungslinien in der Dogmatik der Sicherungsverwahrung, Münster: LIT Verlag, 2004, p. 49; and Matthias Etzel, Die Aufhebung von nationalsozialistischen Gesetzen durch den Alliierten Kontrollrat (1945-1948), Tübingen: Mohr Siebeck, 1992, p. 169. [20] This was already how Kohlrausch criticised the draft laws on preventive detention during the Weimar Republic (Michael Wagner-Kern, Präventive Sicherheitsordnung…, cited above, p. 41). See for a renewal of this critique, Axel Dessecker, “Etikettenschwindel oder Behandlungsvollzug? Kritik der Sicherungsverwahrung und neues Recht” (2012) 33 Zeitschrift für Rechtssoziologie 265-282. [21] J. Kinzig, Die Sicherungsverwahrung..., cited above, p. 23. [22] BVerfGE 2, 119. [23] Section 7 of the Juvenile Court Act. [24] Section 105 (1) of the Juvenile Court Act. [25] Section 106 (2) of the Juvenile Court Act. [26] As explained by the Constitutional Court, the introduction of that time-limit was needed to respond to the judges’ reluctance to use unlimited preventive detention, which they saw as equivalent, in practice, to a life sentence. The insufficiency of the prognosis methodology was also considered as grounds for limiting detention (BVerfGE 109, 133, § 14). [27] BverfGE 2 BvR 41/71. Its main finding was that executing a custodial sentence breached the constitution if interferences with fundamental rights, in addition to the deprivation of liberty, lacked an explicit statutory basis. [28] Zweiter Schriftlicher Bericht des Sonderausschusses für die Strafrechtsreform BT-Drs. 5/4095, p. 31. [29]. Pollähne, in Kindhäuser, Neumann and Paeffgen (eds.), Strafgesetzbuch Nomos Kommentar, volume 1, 4. edition, Baden-Baden: Nomos, 2013, annotation 4 to § 61. [30] The Combat of Sexual Offences and Other Dangerous Offences Act (Gesetz zur Bekämpfung von Sexualdelikten und anderen gefährlichen Straftaten) of 26 January 1998, entered into force on 31 January 1998. [31] As the Constitutional Court explained in BVerfGE, 109, 133, § 42. [32] Baden Württemberg (2001), Bavaria (2001), Saxony-Anhalt (2002), Thuringia (2003), Lower Saxony (2003). See also Jörg Kinzig, Die Legalbewährung gefährlicher Rückfalltäter – Zugleich ein Beitrag zur Entwicklung des Rechts der Sicherungsverwahrung, Berlin: Duncker & Humblot, 2010, p. 17-28. [33] Bild am Sonntag, 8 July 2001. [34]. The Deferred Preventive Detention Act (Gesetz zur Einführung der vorbehaltenen Sicherungsverwahrung), of 21 August 2002, entered into force on 28 August 2002. [35] Section 106 of the Juvenile Courts Act in the version of the Reform of the Provisions on Offences against Sexual Self-determination and of Other Provisions Act (Gesetz zur Änderung der Vorschriften über die Straftaten gegen die sexuelle Selbstbestimmung und zur Änderung anderer Vorschriften), of 27 December 2003, coming into force on 1 April 2004. [36] BVerfGE 109, 133. [37] Ibid., § 70. [38] Ibid., § 94. [39] Ibid., § 127. [40] Ibid., §§ 133, 136 and 144. [41] Ibid., § 151. [42] Ibid., § 137. [43] Ibid., § 126. [44] Ibid. [45] BVerfGE 109, 190. [46]. Bavarian Act on the Committal of Highly Dangerous Offenders particularly prone to recidivism (Bayerisches Gesetz zur Unterbringung von besonders rückfallgefährdeten hochgefährlichen Straftätern), of 24 December 2001. [47]. Act of the Land Saxony-Anhalt on the Committal of Persons particularly prone to recidivism in order to avert serious dangers to public safety and order (Gesetz des Landes Sachsen-Anhalt über die Unterbringung besonders rückfallgefährdeter Personen zur Abwehr erheblicher Gefahren für die öffentliche Sicherheit und Ordnung), of 6 March 2002. [48] BVerfGE 109, 190, § 168. Three judges joined a dissenting opinion, arguing that the impugned provisions were null and void and the persons detained under these provisions should be released immediately, since there were other less intrusive measures that could be adopted to prevent recidivism. [49] Ibid., § 166. [50] Ibid., § 167. [51] The Retrospective Preventive Detention Act (Gesetz zur Einführung der nachträglichen Sicherungsverwahrung) of 23 July 2004, which entered into force on 29 July 2004, inserted Article 66b §§ 1 and 2 into the Criminal Code. [52] BVerfGE, 2 BvR 226/06. [53] BVerfG, 2 BvR 748/08. [54] BVerfG, 2 BvR 2098/08. [55] Section 7 (2) of the Juvenile Courts Act in the version of the Act on the introduction of retrospective preventive detention for convictions under the criminal law relating to young offenders (Gesetz zur Einführung der nachträglichen Sicherungsverwahrung bei Verurteilungen nach Jugendstrafrecht) of 8 July 2008, which came into force on 12 July 2008. On this law see Hauke Brettel, “Nachträgliche Sicherungsverwahrung bei jugendlichen Sexualstraftätern”, in B. Bannenberg und J.-M. Jehle (eds), Gewaltdelinquenz, Lange Freiheitsentziehung, Delinquenzverläufe, Mönchengladbach: Forum Verlag, 2011, 309-316; Heribert Ostendorf and Sandra Petersen, “Nachträgliche Sicherungsverwahrung im Jugendstrafrecht” (2010) Zeitschrift für Rechtspolitik 245-249; Christine Graebsch, “Sicherungsverwahrung im Jugendstrafrecht” (2008) Zeitschrift für Jugendkriminalrecht und Jugendhilfe 284-287; Jörg Kinzig, “Die Einführung der nachträglichen Sicherungsverwahrung für Jugendliche” (2008) Zeitschrift für Jugendkriminalrecht und Jugendhilfe 245-250; and “Entwicklung, Stand und Perspektiven einer Sicherungsverwahrung für Jugendliche und Heranwachsende” (2007) Recht der Jugend und des Bildungswesens 155-166. [56]. Section 7 (3) of the Juvenile Courts Act in the version of the 2008 Act mentioned previously. [57] This change was intentional, since reasons are given for it in the draft law. The draft law explains the harsher conditions in juvenile’s law as opposed to adult’s law by referring to difficulties with prognosis with respect to people of young age: “Diese Verlagerung des Entscheidungszeitpunkts an das Ende des Vollzugs ist bei jungen Menschen im Regelfall zur Erhöhung der Prognosesicherheit geboten. Allerdings ist der neue § 7 Abs. 2 JGG, wie sein Wortlaut verdeutlicht (‘sind nach einer Verurteilung … Tatsachen erkennbar’ und nicht ‘werden nach einer Verurteilung … Tatsachen erkennbar’), auch dann anwendbar, wenn die wesentlichen die Gefährlichkeit begründenden Tatsachen bereits zum Zeitpunkt des Urteils erkennbar waren und im Jugendstrafvollzug keine erheblichen ‘neuen’ Tatsachen hervorgetreten sind.” (BT-Drs. 16/6562, p. 7). [58] BT-Drs 16/6562. [59] Intervention of Professor Jörg Kinzig, BT-Dr 16/6562, p. 2. [60]. N. Nestler and C. Wolf, “Sicherungsverwahrung gem. § 7 Abs. 2 JGG und der Präventionsgedanke im Strafrecht - kritische Betrachtung eines legislativen Kunstgriffs” (2008) Neue Kriminalpolitik 153-159. [61] T. Ullenbruch, “Das "Gesetz zur Einführung der nachträglichen Sicherungsverwahrung bei Verurteilungen nach Jugendstrafrecht" - ein Unding?” (2008) Neue Juristische Wochenschrift 2609-2615. [62] M. v. Germany, no. 19359/04, 17 December 2009. On the impact of this judgment, see Jörg Kinzig, “The ECHR and the German System of Preventive Detention: An Overview of the Current Legal Situation in Germany”, in M. Caianiello and M. Corrado (eds), Preventing danger: new paradigms in criminal justice, Durham, NC: Carolina Acad. Press., 2013, 71-95; E. Janus et al, “M. v. Germany: The European Court of Human Rights Takes a Critical Look at Preventive Detention” (2013) 29 Arizona Journal of International and Comparative Law 605-622; S. Schlickewei, “Preventive Detention Revisited Before the ECtHR: O.H. v. Germany” (2012) German Yearbook of International Law 659-669; T. Bartsch, “Aspekte der Sicherungsverwahrung im Straf- und Maßregelvollzug”, in B. Bannenberg und J.-M. Jehle (eds), Gewaltdelinquenz, Lange Freiheitsentziehung, Delinquenzverläufe, Mönchengladbach: Forum Verlag, 2011, 291-308; G. Merkel, “Incompatible Contrasts - Preventive Detention in Germany and the European Convention on Human Rights” (2010) German Law Journal 1046-1066; H. Müller, “Die Sicherungsverwahrung, das Grundgesetz und die Europäische Menschenrechtskonvention” (2010) Strafverteidiger 207-212; M. Möllers, “Die ‘Einkesselung’ des EGMR durch BVerfG und BGH bei der nachträglichen Anordnung der Sicherungsverwahrung” (2010) Zeitschrift für Rechtspolitik 153-156; and M. Grosse-Brömer and O. Klein, “Sicherungsverwahrung als Verfassungsauftrag” (2010) Zeitschrift für Rechtspolitik 172-175. [63] In M., cited above, § 128, the Court made first a principled argument (the one that, pursuant to Article 66 of the Criminal Code, “preventive detention orders may be made only against persons who have repeatedly been found guilty of criminal offences of a certain gravity”) and only mentioned the situation on the ground as an additional specifying argument (“it observes, in particular, that there appear to be no special measures, instruments or institutions in place, other than those available to ordinary long-term prisoners.”) [64] After M. v. Germany, cited above, the Court was confronted with the question of the compatibility with the Convention of retrospective preventive detention in Kallweit v. Germany, no. 17792/07, 13 January 2011, and of the 2002 Bavarian Therapy Placement Act in Haidn v. Germany, no. 6587/04, 13 January 2011, and in both cases declared it incompatible. [65] M. v. Germany, cited above, § 102. [66] M. v. Germany, cited above, § 103. [67] Reform of Preventive Detention Act (Gesetz zur Neuordnung des Rechts der Sicherungsverwahrung) of 22 December 2010, which entered into force on 1 January 2011. On this law see Arthur Kreuzer, “Beabsichtigte bundesgesetzliche Neuordnung des Rechts der Sicherungsverwahrung” (2011) Zeitschrift für Rechtspolitik 7-11; “Strafrecht als präventiver Opferschutz? — Plädoyer für eine einheitliche vorbehaltene Sicherungsverwahrung anstelle des dringend reformbedürftigen dreigeteilten Systems” (2010) 22 (3) Neue Kriminalpolitik 89-95; and Jörg Kinzig, “Die Neuordnung des Rechts der Sicherungsverwahrung” (2011) Neue juristische Wochenschrift 177-182. [68] The Act on Therapy and Detention of Mentally Disturbed Violent Offenders (Gesetz zur Therapierung und Unterbringung psychisch gestörter Gewalttäter) entered into force on 1 January 2011. On this law see Katrin Höffler and Cornelius Stadtland, “Mad or bad? Der Begriff ‘psychische Störung’ des ThUG im Lichte der Rechtsprechung des BVerfG und des EGMR” (2012) Strafverteidiger 239-246; Volker Dittmann, “‘Psychische Störung’ im Therapieunterbringungsgesetz (ThUG) und im Urteil des Bundesverfassungsgerichts zur Sicherungsverwahrung vom 4. Mai 2011 – Versuch einer Klärung”, in J.L. Müller et al. (eds.), Sicherungsverwahrung – wissenschaftliche Basis und Positionsbestimmung, Berlin, 2012, 27-42; and C. Morgenstern, “Krank - gestört - gefährlich: Wer fällt unter § 1 Therapieunterbringungsgesetz und Art. 5 Abs. 1 lit. e EMRK?” (2011) Zeitschrift für internationale Strafrechtsdogmatik 974-981. [69] M. v. Germany, cited above. [70] The draft law summarises with respect to the meaning of “psychische Störung” in Article 1 of Therapy Placement Act: “Letztlich deckt der Begriff der „psychischen Störung“ ein breites Spektrum von Erscheinungsformen ab, von denen nur ein Teil in der psychiatrisch-forensischen Begutachtungspraxis als psychische Erkrankung gewertet wird.” (BT-Drs. 17/3403, p. 54). During the parliamentary hearings the expert Norbert Leygraf resumed from a psychiatrist’s perspective: “Da eine als gefährlich eingeschätzte Gruppe bislang als psychisch gesund geltender ‘Hangtäter’ mit Mitteln des Strafrechtes nicht weiter gesichert werden kann, wird eine psychiatrisch verbrämte neue Form der Unterbringung geschaffen, um den weiteren Freiheitsentzug dieser Menschen sicherzustellen. Hierzu wird auf psychiatrische Klassifikationssysteme zurückgegriffen (ICD 10 bzw. DSM IV), obschon die genannten Diagnosemanuale gerade ausdrücklich hervorheben, dass sie als Grundlage einer gerichtlichen Entscheidung nicht hinreichend sind.” (http://webarchiv.bundestag.de/archive/2013/1212/bundestag/ausschuesse17/a06/anhoerungen/archiv/02_Sicherungsverwahrung/04_Stellungnahmen/Stellungnahme_Leygraf.pdf, p. 5). [71] This is in fact stated in the explanations to section 9 (2) of the Therapy Placement Act: Die Sachverständigen sollen zugleich auch Behandlungsvorschläge unterbreiten. Sollte eine Therapie des Betroffenen ausgeschlossen werden, sind in den Gutachten zumindest Vorschläge für eine Behandlung, z. B. mit Medikamenten, der psychischen Störung des Betroffenen zu unterbreiten.“ (BT-Drs. 17/3403, p. 57). Norbert Leygraf also pointed to the fact that the legislation explicitly demands from a medical expert to propose at least medical treatment even if treatment for the respective person is in principle considered to be impossible: Bei den von den Gutachtern vorzuschlagenden Behandlungen werden explizit medikamentöse Behandlungsformen genannt, die vom Gutachter sogar auch dann noch vorgeschlagen werden sollen, wenn eine Therapie des Betroffen eigentlich ausgeschlossen ist (Erläuterungen zu § 8 Abs. 2 ThUG GE). (source cited in the previous note). [72] For a similar problem in Kuttner v. Austria, no. 7997/08, 16 July 2015, my opinion, § 9. [73]. Katrin Höffler and Johannes Kaspar, “Warum das Abstandsgebot die Probleme der Sicherungsverwahrung nicht lösen kann Zugleich ein Beitrag zu den Aporien der Zweispurigkeit des strafrechtlichen Sanktionssystems” (2012) 124 (1) Zeitschrift für die gesamte Strafrechtswissenschaft 87, 88. [74] On the judicial response to M. see J. Kaspar, “Die Zukunft der Zweispurigkeit nach den Urteilen von Bundesverfassungsgericht und EGMR” (2015) Zeitschrift für die gesamte Strafrechtswissenschaft 654-690; C. Michaelsen, “From Strasbourg, with Love' - Preventive Detention before the German Federal Constitutional Court and the European Court of Human Rights” (2012) Human Rights Law Review 148-167; M. Payandeh and H. Sauer, “Menschenrechtskonforme Auslegung als Verfassungsmehrwert: Konvergenzen von Grundgesetz und EMRK im Urteil des Bundesverfassungsgerichts zur Sicherungsverwahrung” (2012) Juristische Ausbildung 289-298; B. Sonnen, “Verfassungswidrige Sicherungsverwahrung” (2011) Zeitschrift für Jugendkriminalrecht und Jugendhilfe 321-324; M. Pösl, “Die Sicherungsverwahrung im Fokus von BVerfG, EGMR und BGH” (2011) Zeitschrift für das juristische Studium 132-146; A. Kreuzer and T. Bartsch, “Urteilsanmerkung zum BVerfG-Urteil” (2011) Strafverteidiger 472-480; U. Eisenberg, “Urteilsanmerkung zum BVerfG-Urteil” (2011) Strafverteidiger 480-482; Karl Nußstein, “(Kein) Anwendungsbereich des Therapieunterbringungsgesetzes nach dem Sicherungsverwahrungs-Urteil des BVerfG?” (2011) Strafverteidiger 633-635; F. Streng, “Die Zukunft der Sicherungsverwahrung nach der Entscheidung des Bundesverfassungsgerichts” (2011) Juristenzeitung 827-835; and U. Volkmann, “Fremdbestimmung - Selbstbehauptung – Befreiung” (2011) Juristenzeitung 835-842. [75] BVerfGE 128, 326. [76] Ibid., §§ 95 and 119. But Article 66 of the Criminal Code in its version in force since 27 December 2003 was not declared void with retrospective effect, but remained applicable and thus a valid legal basis under domestic law, in particular, for the time preceding the Constitutional Court’s 2011 judgment. Therefore, the lawfulness of preventive detention ordered and executed in accordance with a previous version of Article 66 for the purposes of Article 5 § 1 (a) of the Convention was not called into question (Ostermunchner v. Germany, no. 36035/04, § 84, 22 March 2012). [77] Ibid., § 101 [78] Ibid. [79] Ibid., § 121. [80] Ibid., §§ 171 and 110. [81] Ibid., § 167. It is important to note that the court rejected the possibility of interpreting the existing provisions on preventive detention in the light of Article 5 § 1 (e) of the Convention, because the normative content of these provisions could not be changed in this way (ibid., § 160). [82] Ibid., §§ 120, 130 and 173. [83] Ibid., §§ 132, 143 and 151. [84] Cases in which the offence or at least one of the offences for the commission of which preventive detention is to be imposed or deferred was committed before 1 January 2011. [85] Ibid., §§ 96, 97, 120, 132, 133 and 172. [86] Ibid., §§ 130 and 173. [87] Ibid., § 141. [88] Ibid., § 113. [89] Ibid., § 142. [90] Ibid., §§ 91 and 141. [91] Ibid., § 142. [92] The Preventive Detention (Distinction) Act (Gesetz zur bundesrechtlichen Umsetzung des Abstandsgebotes im Recht der Sicherungsverwahrung), of 5 December 2012, entered into force on 1 June 2013. [93] Paragraph 79 of the present judgment. [94]. Paragraph 77 of the present judgment. For an evaluation of this legislation see Annemarie Dax, Die Neuregelung des Vollzugs..., cited above. [95] Article 7 (2) of the Juvenile Courts Act in the version of the Law of 5 December 2012. [96] Article 7 (4) of the Juvenile Courts Act in the version of the Law of 5 December 2012. [97] The draft law which later had been passed gives the following reasoning: “Damit wird ... diese rechtlich und tatsächlich problematische Anordnungsform noch so lange fortgeführt, bis der Schutz der Bevölkerung durch den Ausbau insbesondere der vorbehaltenen Sicherungsverwahrung übernommen werden kann.” (BT-Drs. 17/9874, p. 12) [98] Decision of the Federal Constitutional Court of 11 July 2013, BVerfGE 2 BvR 2302/11 and 2 BvR 1279/12. [99] Ibid., § 83. [100] Ibid., § 66. [101] Ibid., § 80. [102] Ibid., §§ 97-117. [103] Report to the German Government on the visit to Germany by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 25 November to 2 December 2013, CPT/Inf (2014) 23, § 9. [104] Schwabe and M. G. v. Germany, nos. 8080/08 and 8577/08, 1 December 2011. [105] Ostendorf v. Germany, no. 15598/08, 7 March 2013. [106]. Ibid, § 93. In their separate opinion joined to Ostendorf, Judges Lemmens and Jäderblom considered that purely preventive detention could be justified under Article 5 § 1 (c) of the Convention. This position as now been confirmed by the Grand Chamber in S., V. and A. v. Denmark, nos. 35553/12 and others, 22 October 2018. [107] Bergmann v. Germany, no. 23279/14, 7 January 2016. [108] Jörg Kinzig, “Die Ausweitung der Sicherungsverwahrung und die daraus resultierenden Probleme für eine zuverlässige Kriminalprognose”, in B. Bannenberg und J.-M. Jehle (eds.), Gewaltdelinquenz, Lange Freiheitsentziehung, Delinquenzverläufe, Mönchengladbach: Forum Verlag, 2011, 355-366. [109] In the concept of von Liszt, preventive detention was not supposed to be a measure of correction and prevention, but a punishment for reasons of security, because there was no prospect of success for treatment perceived. Von Liszt compared the habitual offender to a sick limb influencing the health of the whole body, to a cancerous ulcer poisoning society (von Liszt, ‘Der Zweckgedanke im Strafrecht’ (1883) 3 Zeitschrift für die gesamte Strafrechtswissenschaft 36), in this respect anticipating National Socialist thinking and its eliminative practice (Johannes Kaspar, Die v. Liszt-Schule und der Umgang mit gefährlichen Gewohnheitsverbrechern, in Arnd Koch and Martin Löhnig (eds.), Die Schule Franz von Liszts, Tübingen: Mohr Siebeck, 2016, p. 124). [110] In the Criminal Code there is no provision similar to that of Article 5 § 3 of the Juvenile Courts Act. [111]. In the Constitutional Court’s own words: “Dieser besondere Charakter der Sicherungsverwahrung tritt bei dauerhafter Unterbringung besonders augenfällig zutage, weil hier der Besserungszweck der Maßregel hinter ihren Sicherungszweck zurücktritt.” (BVerfGE 109, 133, § 124). [112] Referring to Article 7 of the Juvenile Courts Act see BVerfGE 128, 326, §§ 99 and 156. [113] The Constitutional Court expanded extensively on the “similarities” (Ähnlichkeiten), “functional overlaps” (Funktionsüberschneidungen) and “parallels” (Parallelen) between these two prison regimes (BVerfGE 109, 2133, §§ 157-162). [114] This was already at the centre of the Constitutional Court’s reasoning in BVerfGE 128, 326, §§ 108 and 109. [115] Vinter and Others v. the United Kingdom [GC], nos. 66060/09, 130/190 and 3896/10, ECHR 2013 (extracts). [116] See the commentary to Rule 103 of the 2006 European Prison Rules. [117] On this provision see the critical remarks of Norbert Nedopil, “Sicherungsverwahrung und ‘psychische Störung’ aus psychiatrischer Sicht” in Johannes Kaspar (ed.), Sicherungsverwahrung 2.0, Baden-Baden: Nomos, 2017, 57-68. [118] The Constitutional Court itself admits that these provisions are “rudimentary”, relating to “marginal areas” (BverfGE 128, 326, § 121). [119] Ibid., § 108. [120] Ibid., § 105. [121] Ibid. [122] Ibid., § 108. [123] It is important to recall that the Constitutional Court grounded its demand for a distinction in the 2004 decision in human dignity (Article 1 § 1 of Basic Law). [124] BverfG 35, 202. [125] For example, BVerfGE 39, 46; and 72, 114. [126]. Maurach, Strafrecht, Allgemeiner Teil, Karlsruhe: Müller Verlag, 1971, p. 77. For reasons of economy of space, I cannot delve here into the German dogmatic debate on the purposes of punishment, but I refer to my text “Ein unausrottbares Missverständnis, Bemerkungen zum strafrechtlichen Schuldbegriff von Jakobs“ (1998) 110 Zeitschrift für die Gesamte Strafrechtswissenschaft 640-657. [127] BVerfGE 128, 326, § 104. [128] As reflected in the Constitutional Court’s decision on life imprisonment of 21 June 1977 (1 BvL 14/76). [129] BVerfGE 128, 326, § 130. [130] On these reasons see, among many others, Katrin Höffler, “Die Kriminalprognose und das Risiko” and Hauke Brettel, “‘Ist gestört, wer ständig stört?’ Zum Verhältnis von psychischer Störung und Straffälligkeit”, in Johannes Kaspar (ed.), Sicherungsverwahrung 2.0, Baden-Baden, Nomos, 2017, respectively, 35-56, and 245-252; Michael Alex, Nachträgliche Sicherungsverwahrung – ein rechtsstaatliches und kriminologisches Debakel, Holzkirchen: Felix-Verlag, Holzkirchen, 2013; K. Drenkhahn and C. Morgenstern, “Dabei soll es uns auf den Namen nicht ankommen - Der Streit um die Sicherungsverwahrung” (2012) Zeitschrift für die gesamte Strafrechtswissenschaft 132-203; A. Kreuzer, “Kriminalpolitische und rechtliche Aspekte der Reform des Sicherungsverwahrungsrechts”, in B. Bannenberg und J.-M. Jehle (eds), Gewaltdelinquenz, Lange Freiheitsentziehung, Delinquenzverläufe, Mönchengladbach: Forum Verlag, 2011, 291-308; V. Schöneburg, “Rechtsstaat und Sicherheit: Die Sicherungsverwahrung auf dem Prüfstand” (2010) Menschenrechtsmagazin 83-90; H. Ostendorf, “Jugendstrafrecht - Reform statt Abkehr” (2008) Strafverteidiger 148-153; Michael Alex, “Nachträgliche Sicherungsverwahrung - eine empirische Bilanz” (2008) Neue Kriminalpolitik 150-153; U. Eisenberg, “Nachträgliche Sicherungsverwahrung bei zur Tatzeit Jugendlichen bzw. Heranwachsenden?” (2007) Juristenzeitung 143-144. [131] See my opinion in Kuttner, cited above. [132] See my opinion in Kuttner, cited above. [133] Karl Nußstein, “Das Therapieunterbringungsgesetz - Erste Erfahrungen aus der Praxis” (2011) Neue juristische Wochenschrift 1194-1197. [134] BVerfGE 128, 326, § 64. [135]. For a summary of the discussion, Monika Werndl, “Altfallproblematik und rechtsstaalicher Vertrauensschutz in Sachen Sicherungsverwahrung” in Johannes Kaspar (ed.), Sicherungsverwahrung 2.0, Baden-Baden: Nomos, 2017, 71-102; Karl Nußstein, “Das Therapieunterbringungsgesetz...”, cited above, p. 1194; Jörg Kinzig, “Die Neuordnung ...”, cited above, p. 177; and Arthur Kreuzer, “Beabsichtige ...”, cited above, p.10. [136] BVerfGE 109, 133, §§ 173 and 174. [137] Ibid., §§ 177 and 187. This justification was later extended by the Constitutional Court’s decision of 23 August 2006 on Article 66 § 2 of the Criminal Code (BVerfGE 2 BvR 226/06, §§ 14-16), by its decision of 22 October 2008 on Article 66b § 1, sentence 2, of the Criminal Code (BVerfGE 2 BvR 226/06, §§ 26-37) and by its decision of 5 August 2009 on Article 66b § 3 of the Criminal Code (BVerfGE 2 BvR 2098 and 2 BvR 2633/08, §§ 22-33). This latter case is particularly interesting because in it the court admitted that “genuine” retrospective preventive detention could be compatible with the Basic Law. This position has been reviewed in the decision of 6 February 2013 (BVerfGE 2 BvR 2122/11, 2 BvR 2705/11). [138] BVerfGE 128, 326, § 134. [139] Ibid., § 138. [140] Ibid., § 141. [141] On this discussion see Bernd-Dieter Meyer, ‘Sicherungsverwahrung bei Jugendlichen und Heranwachsenden“, in Johannes Kaspar (ed.), Sicherungsverwahrung 2.0, Baden-Baden: Nomos, 2017, 217-238; Christian Laue, “Die Sicherungsverwahrung im Jugendstrafrecht”, in vorgänge (2015) 205 Zeitschrift für Bürgerrechte und Gesellschaftspolitik 43-50; Katharina Karmrodt, Sicherungsverwahrung bei Verurteilungen nach Jugendstrafrecht, Berlin, LIT Verlag, 2012; Tillmann Bartsch, “Eine verpasste Chance! Zur Reform der Vorschriften über die Sicherungsverwahrung im JGG” (2013) Zeitschrift für Jugendkriminalrecht und Jugendhilfe 182-189; Stefanie Kemme, “Sicherungsverwahrung nach Jugendstrafrecht” (2011) Praxis der Rechtspsychologie 93-114. [142]. United Nations Human Rights Committee, Fardon v. Australia, (CCPR/C/98/D/1629/2007 10 May 2010) § 7.4. [143] Mr. Konopka mentioned the case of the applicant as the first of three cases in which preventive detention would be necessary. See P r o t o k o l l der 103. Sitzung am 28. Mai 2008, Stellungnahme für den BT-Rechtsausschuss, BT-Drucksache 16/6562 http://webarchiv.bundestag.de/archive/2010/0304/bundestag/ausschuesse/a06/anhoerungen/Archiv/37_Jugendstrafrecht-Sichver/04_Stellungnahmen/Stellungnahrne_Konopka.pdf. [144]. BGH 1 StR 554/09: "Vorliegend ist zudem die zeitliche Nähe des Erlasses diesesGesetzes zum Ende des Strafvollzugs des Verurteilten in dieserSache zu berücksichtigen. Der Verurteilte verbüßte die Strafe ausder Anlassverurteilung bis 17. 7. 2008. Das Gesetz zur Einführungder nachträglichen Sicherungsverwahrung bei Verurteilungennach Jugendstrafrecht (BGBl I 1212) vom 8. 7. 2008 tratunmittelbar vorher am 12. 7. 2008 in Kraft. Diese zeitliche Nähelässt den Schluss zu, dass der Gesetzgeber Fallgestaltungen dervorliegenden Art bei Erlass des Gesetzes im Blick gehabt hat undauch diese erfassen wollte." [145] Hauke Brettel, “Der Vollzug der Sicherungsverwahrung nach § 7 Abs. 2 JGG” (2009) Zeitschrift für Jugendkriminalrecht und Jugendhilfe 331-335. [146] In the 2010 law that almost abolished retrospective preventive detention for adults, the Government referred to its ineffectiveness owing to the precondition of nova as requested by the Federal Court of Justice (Bundestags-Drucksache 17/3403, p. 13). [147] BGH NJW 2006, 384. [148]. Arthur Kreuzer and Tillmann Bartsch, “Gesetzgeberische Flickschusterei und Vollzugsprobleme bei der Sicherungsverwahrung“ (2008) Forum Strafvollzug 30-33. [149] Johnannes Kaspar, “Die Zukunft... ”, cited above; Franz Streng, “Die Zukunft... ”, cited above; and Hauke Brettel, “Nachträgliche Sicherungsverwahrung …”, cited above. [150] T. Bartsch, “Aspekte der Sicherungsverwahrung im Straf- und Maßregelvollzug”, in B. Bannenberg und J.-M. Jehle (eds.), Gewaltdelinquenz, Lange Freiheitsentziehung, Delinquenzverläufe, Mönchengladbach: Forum Verlag, 2011, 291-308. [151] As the Constitutional Court has admitted (BverfGE 128, 326, § 123). [152] BVerfGE 109, 133, § 126. [153] Ibid., § 136 [154] BVerfGE 109, 190. [155] BVerfGE 2 BvR 2302/11, 2 BvR 1279/12 (Zweiter Senat), § 59. [156] BVerfGE 109, 133, § 152. [157] As mentioned explicitly in BVerfGE 128, 326, § 56. [158] BVerfGE 111, 307, § 31. On the relationship betwenn the Convention and the Basic law, Luis López Guerra, “Dialogues between the Strasbourg Court and national courts”, in Amrei Müller (ed.), Judicial dialogue and human rights, Cambridge, Cambridge University Press, 2017, p. 401-409; Andreas Paulus, “Engaging in judicial dialogue: the practice of the German Federal Constitutional Court”, in Amrei Müller (ed.), Judicial dialogue and human rights, Cambridge, Cambridge University Press, 2017, p. 258-266; Amrei Müller, “The ECtHR's engagement with German and Russian courts' decisions: encouraging effective cooperation to secure ECHR rights”, in Amrei Müller (ed.), Judicial dialogue and human rights, Cambridge, Cambridge University Press, 2017, p. 287-338; Julia Rackow, “From conflict to cooperation : the relationship between Karlsruhe and Strasbourg”, in Katja S. Ziegler et al (eds.), The UK and European human rights : a strained relationship?, Oxford, Hart, 2015, p. 379-399; Thomas Giegerich, “The Struggle by the German Courts and Legislature to Transpose the Strasbourg Case Law on Preventive Detention into German Law”, in Anja Seibert-Fohr and Mark E. Villiger (eds.), Judgments of the European Court of Human Rights : effects and implementation, Baden-Baden, Nomos, 2014, p. 207-236; Markus Ludwigs, “Kooperativer Grundrechtsschutz zwischen EuGH, BVerfG und EGMR” (2014) 41 Europäische Grundrechte Zeitschrift 273-285; Andreas Paulus, “From implementation to translation : applying the ECtHR judgments in the domestic legal orders”, in Anja Seibert-Fohr and Mark E. Villiger (eds.), Judgments of the European Court of Human Rights : effects and implementation, Baden-Baden, Nomos, 2014, p. 267-283; Andreas Vosskuhle, “Pyramid or mobile? Human rights protection by the European constitutional courts” (2014) 34 Human Rights Law Journal 1-3; Christoph Grabenwarter, “Deutschland und die Menschenrechtskonvention : eine Aussensicht“, in Sabine Leutheusser-Schnarrenberger (ed.), Vom Recht auf Menschenwürde : 60 Jahre Europäische Menschenrechtskonvention, Tübingen, Mohr Siebeck, 2013, p. 109-121; Renate Jaeger and Christiane Schmaltz, “Die deutsche Rechtsprechung und der EGMR : Kooperation oder Konfrontation?“ in Sabine Leutheusser-Schnarrenberger (ed.), Vom Recht auf Menschenwürde : 60 Jahre Europäische Menschenrechtskonvention, Tübingen, Mohr Siebeck, 2013, p.97-108; Juliane Kokott, “Zusammenwirken der Gerichte in Europa”, in von Hanno Kube (ed.), Leitgedanken des Rechts : Festschrift für Paul Kirchhof, volume 1, Heidelberg, Müller, 2013, p. 1097-1106; Hans-Jürgen Papier, “Das Bundesverfassungsgericht im Kräftefeld zwischen Karlsruhe, Luxemburg und Straßburg”, in Holger P. Hestermeyer (ed.), Coexistence, cooperation and solidarity, volume 2, 2012, p. 2041-2056; Christian Tomuschat, “The effects of the judgments of the European Court of Human Rights according to the German Constitutional Court” (2010) 11 German Law Journal 513-526; Andreas Vosskuhle, “Multilevel cooperation of the European constitutional courts: der Europäische Verfassungsgerichtsverbund” (2010) 6 European Constitutional Law Review 175-198; Oliver Klein, “Strassburger Wolken am Karlsruher Himmel: zum geänderten Verhältnis zwischen Bundesverfassungsgericht und Europäischem Gerichtshof für Menschenrechte seit 1998” (2010) 29 Neue Zeitschrift für Verwaltungsrecht 221-225; Gertrude Lübbe-Wolf, “Der Grundrechtsschutz nach der Europäischen Menschenrechtskonvention bei konfligierenden Individualrechten : Plädoyer für eine Korridor-Lösung” in Martin Hochhuth (ed.), Nachdenken über Staat und Recht : Kolloquium zum 60. Geburtstag von Dietrich Murswiek, Berlin, Duncker & Humblot, 2010, p. 193-209. [159] Ibid., § 32. [160] Ibid., § 40. [161] Ibid., § 39. [162] Ibid., § 48. [163] Ibid., § 68. [164] Ibid., § 51. [165] Ibid. [166] Ibid., § 58. [167] Ibid., § 47. [168] Ibid., § 62. [169] Ibid., § 50, and BVerfGE 128, 326, § 93. [170] BVerfGE 120, 180, § 82. [171] BVerfGE 128, 326, § 89. In the same decision, however, the Court denied that the Convention provisions had an effect of “strong precedent, extending beyond the individual case” (über den Einzellfall hinausgehende, strenge Präjudizienbindung). [172] Ibid., § 82. [173]. Meanwhile Strasbourg had delivered the M. v. Germany judgment. On the constitutional law discussion triggered by this case, Christoph Grabenwarter, “Die deutsche Sicherungsverwahrung als Treffpunkt grundrechtlicher Parallelwelten” (2012) 39 Europäische Grundrechte Zeitschrift 507-514, and “Wirkungen eines Urteils des Europäischen Gerichtshofs für Menschenrechte - am Beispiel des Falls M gegen Deutschland” (2010) 65 Juristenzeitung 857-912; Mehrdad Payandeh and Heiko Sauer, “Menschenrechtskonforme Auslegung als Verfassungsmehrwert: Konvergenzen von Grundgesetz und EMRK im Urteil des Bundesverfassungsgerichts zur Sicherungsverwahrung” (2012) Jura 289-298; Birgit Peters, “Germany's dialogue with Strasbourg: extrapolating the Bundesverfassungsgericht's relationship with the European Court of Human Rights in the preventive detention decision” (2012) 13 German Law Journal 757-772; Bertram Schmitt, “Der Einfluss der strafrechtlichen Rechtsprechung des EGMR auf den BGH und das BVerfG : Kommentar” in Nack Jahn (ed.), Gegenwartsfragen des europäischen und deutschen Strafrechts : Referate und Diskussionen auf dem 3. Karlsruher Strafrechtsdialog am 27.Mai 2011, Köln, Carl Heymann, 2012, p. 47-51. [174] Ibid., § 90. [175] Ibid., § 86. [176] BVerfGE 111, 307, § 32. [177] BVerfGE 128, 326, § 91. [178] “Für die gewachsene Verfassungsordnung des Grundgesetzes ist dagegen an dem Begriff der Strafe in Art. 103 GG, wie er in der Entscheidung vom 5. Februar 2004 (BVerfGE 109, 133 <167 ff.>) zum Ausdruck gekommen ist, festzuhalten.” (BVerfGE 128, 326, § 142). [179] BVerfGE 109, 133, § 15. [180] M. v. Germany, cited above. [181] Jendrowiak v. Germany, no. 30060/04, 14 April 2011. [182] Ibid., §§ 36-38 and 48. [183] BVerfGE 128, 326, § 91. [184]. See my separate opinion in G.I.E.M. S.r.l. and Others v. Italy (GC), nos. 1828/06 and 2 others, 28 July 2018, § 85. [185] BVerfGE 128, 326, § 89. [186] G.I.E.M. and Others, cited above, § 252, and my separate opinion, paras. 72-86. [187] BVerfGE 128, 326, § 91. [188] Ibid., § 92. [189]. Other than public safety, the Constitutional Court refers, very discreetly, to “constitutional identity” as an “absolute limit” (BVerfGE 128, 326, § 93), but does not use this argument in the specific case of preventive detention. It seems that preventive detention in itself does not belong to the “constitutional identity” of the Basic Law. [190] Ibid., § 93. [191] M., cited above. [192] For example, in M., cited above, § 82, the applicant argued precisely that “His right to lawful detention could not be balanced against public safety concerns.” and the Government rebutted the argument, by invoking the “prevention of dangers to the public” and the “preventive aim of the protection of society” (M., cited above, §§ 113 and 116). See also Jendrowiak, cited above, §§ 36-38; S. v. Germany, no. 3300/10, § 103, 28 June 2012; G. v. Germany, no. 65210/09, §79, 7 June 2012; B. v. Germany, no. 61272/09, § 88, 19 April 2012; Kronfeldner v. Germany, no. 21906/09, §§ 86 and 87, 19 January 2012; and O.H. v. Germany, no. 4646/08, §§ 93-94, 24 November 2011. [193] Jendrowiack, cited above, § 48. [194] M., cited above. [195] G.I.E.M. and Others, cited above. [196] Sud Fondi S.r.l. and Others v. Italy, no. 75909/01, 20 January 2009. [197] Varvara v. Italy, no. 17475/09, 29 October 2013. [198]. M. v. Germany, cited above, was about the retrospective prolongation of preventive detention beyond the 10 year limit (Article 67 d § 3 StGB). [199]. Haidn v. Germany, no. 6587/04, 13 January 2011, B. v. Germany, no. 61272/09, 19 April 2012, and S. v. Germany, no. 3300/10, 28 June 2012. This group of cases concerned retrospective preventive detention (Nachträgliche Sicherungsverwahrung) (Article 66b of the Criminal Code), where the sentencing court’s judgment was in fact subsequently corrected by a retrospective preventive detention order. [200]. “Für die gewachsene Verfassungsordnung des Grundgesetzes ist dagegen an dem Begriff der Strafe in Art. 103 GG, wie er in der Entscheidung vom 5. Februar 2004 (BVerfGE 109, 133 <167 ff.>) zum Ausdruck gekommen ist, festzuhalten.” (BVerfGE 128, 326, § 142). [201] Vinter and Others v. the United Kingdom (GC), nos. 66069/09, 130/10 and 3896/10, ECHR 2013 (extracts). [202] R v. McLoughlin, R v. Newell, Court of Appeal, Criminal Division, 18 February 2014 [2014] EWCA Crim 188. [203]. Hutchinson v. the United Kingdom (GC), no. 57592/08, 17 January 2017. See my separate opinion joined to this judgment. [204]. G.I.E.M. S.r.l. and Others, cited above. See my separate opinion joined to this judgment, particularly in paras. 61-63, on the Court’s current efficiency-interests-oriented approach to criminal law. [205] See my separate opinion in Maktouf and Damjanovic v. Bosnia and Herzegovina (GC), nos. 2312/08 and 34179/08, 18 July 2013, §§ 2-9. [206]. United Nations Human Rights Committee, Fardon v. Australia (CCPR/C/98/D/1629/2007 10 May 2010). [207]. Ibid. [208]. United Nations Human Rights Committee concluding observations on the sixth periodic report of Germany, CCPR/C/DEU/CO/6, 2 November 2012. [209]. United Nations Committee against Torture concluding observations, CAT/C/DEU/CO/5, 12 December 2011. [210] Report of the Working Group on Arbitrary Detention, Addendum, Follow-up mission to Germany, A/HRC/30/36/Add.1, 10 July 2015. [211] It is particularly regrettable that the majority do not give the CPT reports the same weight they were accorded in M., cited above, § 129. [212] Report to the German Government on its visit to Germany from 20 November to 2 December 2005 (CPT/Inf (2007) 18 of 18 April 2007, § 96). [213] Ibid. [214] Ibid. [215] Ibid., § 99. [216] Report to the German Government on the visit to Germany carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 25 November to 7 December 2010 (CPT/Inf (2012) 6), § 107. [217] Report to the German Government on the visit to Germany carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 25 November to 2 December 2013, CPT/Inf (2014) 23, § 15. [218] Ibid., § 17. [219] Ibid., § 19. [220] Mr Thomas Hammarberg’s report on his visit to Germany from 9 to 11 and from 15 to 20 October 2006 (CommDH(2007)14 of 11 July 2007) [221] Paragraph 210 of the judgment. [222] I have made this point in other separate opinions, such as the one joined to Khamtokhu and Aksenchik v. Russia, nos. 60367/08 and 961/11, 24 January 2017, § 31 of my opinion. [223]. Belgium, France, the Former Yugoslav Republic of Macedonia, the Netherlands, Norway, Poland, Serbia, Slovakia, Switzerland, and the United Kingdom. [224]. Albania, Austria, Azerbaijan, Bulgaria, Croatia, Finland, Hungary, Latvia, Liechtenstein, Luxembourg, Montenegro, Portugal, Russia, San Marino, Slovenia, and Turkey. [225]. Armenia, Estonia, Greece, Moldova, and Sweden. [226]. See Article 93 of the Polish Criminal Code, Article 706-53-13 of the French Code on Criminal Procedure, Article 81 of the Serbian Criminal Code, Article 43 of the Norwegian Criminal Code, Article 37 of the Dutch Criminal Code, and Articles 63-65 of the Macedonian Criminal Code. [227]. The three countries that permit the imposition of protective measures even when the sentencing court’s judgment did not provide for that possibility are also those in which the protective regime does not change according to whether the offender’s mental condition was known at the time of sentencing or only discovered thereafter (Belgium, the United Kingdom, and Switzerland). [228]. Section 73 and 81 § 3 of the Slovak Criminal Code. [229] Paragraph 98 of the judgment. [230] Act of 5 May 2014. In Belgium, the measure may be imposed after the sentence through a special procedure that requires a two-month observation period before passing to the stage at which a court may order detention (Art. 6 of the Act of 5 May 2014). According to the Belgian Constitutional Court, such detention may take place after the completion of the sentence, provided three conditions are met: the existence of a real and permanent mental disorder must be demonstrated, the disorder must be of such a nature as to justify detention, and detention must last only as long as the disorder persists, so that the detained person has the possibility of release as soon as they are healthy (Decision no. 22/2016, B.3 and B.68.3, 18 February 2016). [231] The “hybrid order” introduced by the Crime (Sentences) Act of 1997. [232] Articles 59 and 64 of the Swiss Penal Code. [233] Christian Bochmann, “Freiheitsentzug bei jugendlichen Straftätern in Europa” (2008) Zeitschrift für Jugendkriminalrecht und Jugendhilfe 324-329; Heribert Ostendorf and Christian Bochmann, “Nachträgliche Sicherungsverwahrung bei jungen Menschen auf dem internationalen und verfassungsrechtlichen Prüfstand” (2007) Zeitschrift für Rechtspolitik 146-149. [234] French Constitutional Court, Decision No. 2008-562 DC, 21 February 2008, §§ 9-10; and United Nations Human Rights Committee Concluding Observations on the report submitted by France (CCPR/C/FRA/CO/4), of 31 July 2008, § 16. [235] BVerfG 2 BvR 1481/04, § 35. [236] BVerfGE 128, 326, §§ 122-128: “The persons affected are as it were subjected to an unconstitutional deprivation of liberty in full awareness of the situation” (Die Betroffenen werden gleichsam “sehenden Auges” einer verfassungswidrigen Freiheitsentziehung unterworfen.) [237] Mikhel Timmerman, Legality in Europe. On the principle “nullum crimen, nulla poena sine lege” in EU law and under the ECHR, 2018; Susana Sanz-Caballero, “The principle nulla poena sine lege revisited: the retrospective application of criminal law” (2017) 28 European Journal of International Law 787; C. Peristeridou, The Principle of Legality in European Criminal Law, Cambridge: Intersentia, 2015; and K. Gallant, The Principle of Legality in International and Comparative Criminal Law, Cambridge: Cambridge University Press, 2009. [238] Kokkinakis v. Greece, no. 14307/88, 25 May 1993. [239] Grigoriades v. Greece, no. 24348/94, 25 November 1997. [240] Flinkkilä and Others v. Finland, no. 25576/04, 6 April 2010. [241] Baskaya and Okçuoglu v. Turkey, nos. 23536/94 and 24408/94, § 50, 8 July 1999. [242] Korbely v. Hungary, no. 9174/02, §§ 60, 63 and 75, 19 September 2008. [243] See already the separate opinion of Judge Martens in Kokkinakis, cited above, see also Ashlarba v. Georgia, no. 45554/08, §§ 37 and 40, 15 July 2014; Kuolelis, Bartosevicius and Burokevicius v. Lithuania, no. 74357/01 and others, § 121, 19 February 2008; and Grigoriades, cited above, §§ 37 and 38. [244] Kokkinakis, cited above, § 40; and Cantoni v. France, no. 17862/91, § 35, 11 November 1996. [245] Dallas v. the United Kingdom, no. 38395/12, 11 February 2016. [246] Achour v. France, no. 67335/01, §52, 29 March 2006. [247] For example, C.R. v. the United Kingdom, no. 20190/92, § 41, 22 November 1995; S. W. v. the United Kingdom, no. 20166/92, 22 November 1995; and Radio France and Others v. France, no. 53984/00, § 20, 30 March 2004. [248] Ibid. [249] Ibid. Sometimes the Court refers to offences which lack social stigma (see my separate opinion in A and B v. Norway, nos. 24130/11 and 29758/11, 15 November 2016, § 29). [250] Cantoni, cited above, § 35. [251] Flinkkilä and Others, cited above, § 67. See my opinion in Matytsina v. Russia, no. 58428/10, 27 March 2014. [252] Kononov v. Latvia, no. 36376/04, § 185, 17 May 2010, and Baskaya and Okçuoglu, cited above, §§ 42-43. [253] Dragotoniu and Militaru-Pidhorni v. Romania, nos.77193/01 and 77196/01, § 40, 24 May 2007. [254] Koprivnikar v. Slovenia, no. 67503/13, § 56, 24 January 2017. [255] C.R., cited above, S.W., cited above, and Soros v. France, no. 50425/06, § 58, 6 October 2011, and the separate opinion of Judges Villiger, Yudkivska and Nussberger. [256] Del Rio Prada v. Spain (GC), no. 2750/09, § 112 and 117, 21 October 2013. [257] Kononov, cited above, § 198. [258] Khodokorsky and Lebedev v. Russia, nos. 11082/06 and 13772/05, § 781, 25 July 2013. [259] Veeber v. Estonia (no. 2), no. 45771/99, ECHR 2003‑I, and Rohlena v. the Czech Republic (GC), no. 59552/08, 27 January 2015. [260] Maktouf and Damjanovic, cited above. [261] Ibid., my separate opinion, § 8. See also Rohlena, cited above, § 56. [262] Jendrowiak, cited above, § 48. [263] In paragraph 236 of the judgment, the majority’s recognition of some degree of erasure of the punitive element of the detention undoubtedly reveals the persistence, in their view, of at least some punitive purpose. [264] Paragraph 226 of the judgment: “For persons detained as medical health patients, the preventive purpose pursued by the amended preventive detention regime carries decisive weight”. [265]. Paragraph 222 of the judgment: “However, having regard to the setting in which preventive detention orders are executed under the new regime, the Court is satisfied that the focus of the measure now lies on the medical and therapeutic treatment of the person concerned …”. [266]. Paragraph 236 of the judgment. [267]. See my opinion with Judge Turkovic in Khoroshenko v. Russia (GC), no. 41418/04, 30 June 2015, § 3. [268]. Welch, cited above, § 30. [269]4 M. v. Germany, cited above. [270] BVerfGE 109, 133, § 34. [271] Paragraph 229 of the judgment. [272] Paragraph 231 of the judgment. [273] Paragraphs 234 and 235 of the judgment. [274] The word used at the end of paragraph 235 of the judgment is “alleviated”. [275]. I have referred already to this concept in my opinion in Lopes de Souza Fernandes v. Portugal (GC), no. 56080/13, judgment of 19 December 2017. [276] BVerfGE 109, 133, § 93. [277] M. v. Germany, cited above. [278] Bergmann, cited above. [279] Corrado perceives the distance requirement as a “terrible way out of the dilemma, making the difference .. depend upon a gradation of conditions: a little more money, a bit longer visiting hours and it will be acceptable regulation under German law; a bit less and it will be unacceptable punishment.” (Corrado, cited above, p. 68). [280] X. v. Germany, 12 July 1976, Nr. 7493/76, D.R. Volume 6, 182. [281] For example, Kallweit v. Germany, no. 17792/07, 13 January 2011, and Hutchison Reid v. the United Kingdom, no. 50272/99, 20 February 2003. [282] Hutchinson Reid v. the United Kingdom, no. 50272/ 99, 20 February 2003. [283] Morsink v. the Netherlands, no. 48865/99, 11 Mai 2004. [284] The relevant text of the draft law is: “Schon die Menschenrechtskommission hatte unter diesen Begriff auch abnorme Persönlichkeitszüge gefasst, die nicht einer Geisteskrankheit gleichkommen (X./. Bundesrepublik Deutschland, Entscheidung der Europäischen Menschenrechtskommission vom 12. Juli 1976, Nr. 7493/76, D.R. Band 6, Seite 182). In einem Urteil aus dem Jahre 2003 stellte der EGMR klar, dass auch ein weiterhin abnorm aggressives und ernsthaft unverantwortliches Verhalten eines verurteilten Straftäters ausreichen kann und betonte, dass eine fehlende Behandelbarkeit im klinischen Sinne nicht zu einer Freilassung zwinge, wenn eine Gefahr für die Allgemeinheit bestehe (Hutchinson Reid ./. UK, Urteil des EGMR vom 20. Februar 2003, Nr. 50272/ 99). 2004 gelangte der EGMR zu der Feststellung, dass die strafrechtliche Verantwortlichkeit eines Straftäters eine (auch) auf Artikel 5 Absatz 1 Satz 2 Buchstabe e EMRK gestützte Unterbringung nicht ausschließe (Morsink ./. NL, Urteil des EGMR vom 11. Mai 2004, Nr. 48865/99).” (Draft law of 26 October 2010 by the parliamentary groups of the governing parties Bundestags-Drucksache 17/3403, p. 53 f.). This same case law was cited in BVerfGE 128, 326, § 152. [285] Paragraphs 34 and 88 of the judgment. [286] Paragraph 150 of the judgment , as in Glien v. Germany, no. 7345/12, § 87. [287] Paragraph 149 of the judgment. [288] Paragraph 150 of the judgment. [289]. BVerfGE 128, 326, § 51. [290]. Paragraph 143 of the judgment. [291]. Paragraph 155 of the judgment. [292]. The Constitutional Court itself states that the benefit of the doubt should, however, be given to the detainee when there is no clear evidence of his or her dangerousness (BVerfGE 109, 133, § 111). [293]. In page 77 to 79 of the expert report he affirmed that it was doubtful whether the applicant still suffers from sexual sadism. In page 79, the expert concluded that the applicant posed a medium risk of future offences. [294] This report was solely based on the file, because the applicant refused to be examined by the expert. [295] Enclosures 10 and 11 joined to the applicant’s observations of 10 August 2017. [296]. See Article 43 § 2 of the Juvenile Courts Act, in conjunction with Article 109 § 1 of the same Act. [297]. The Constitutional Court itself has demanded a “specially experienced expert” for this kind of long preventive detention (BVerfGE 109, 133, § 114). See also BVerfGE 128, 326, § 99, again stressing the need for a “specially qualified medical report” precisely in the applicant’s constitutional appeal case. [298]. Paragraph 34 of the judgment. [299]. Paragraph 155 of the judgment. [300]. Paragraph 157 of the judgment. Insisting on the applicant’s “criminal history” see paragraph 236. This is sufficient reason to consider the present judgment null and void for being based on false factual representations with a decisive influence on the findings. Rule 80 of the Rules of Court is designed precisely for these types of serious errors. [301] Paragraph 157 of the judgment. [302] Paragraph 190 of the judgment. [303] Paragraph 215 of the judgment. [304] Paragraph 227 of the judgment. [305]. Paragraph 236 of the judgment, which copies the statement of the Government, see paragraph 195. [306] Bergmann, cited above, §§ 175, 181 and 182. See also the Ilnseher chamber judgment, § 81. [307] Paragraph 236 of the judgment. [308] Paragraph 228 of the judgment. [309] The draft law, which distinguished five groups of “Gemeinschaftfremden”, namely the “Versager”, the “Tunichtgute und Schmarotzer”, the “Taugenichtse”, the “Störenfriede” and the “gemeinschaftfeindliche Verbrecher und Neigungsverbrecher”, never came into effect. The Hang- und Neigungsverbrecher were precisely those that were already targeted by preventive detention. [310]. See “Begründung des Entwurfs eines Gemeinschaftsfremdengesetzes”, in Schumann and Wapler, Erziehen und Strafen, Bessern und Bewahren, Entwicklungen und Diskussionen im Jugendrecht im 20. Jahrhundert, 2017, p. 113, footnote 164. [311] Paragraph 157 of the judgment. [312] Müller v. Germany (dec.), no. 264/13, §§ 20, 40, 60 and 61, 10 February 2015, where the Court differentiates between retrospective and subsequent preventive detention. By using the same word, “subsequent”, for the nachträgliche preventive detention, the majority put an end to that linguistic distinction. [313] Paragraph 105 of the judgment. [314] M. v. Germany, cited above, § 100. [315] Article 7(2) of the Juvenile Courts Act (Judgment, §§ 54-60). [316]. The mere fact that a trial judge has made previous decisions concerning the same offence cannot be held as in itself justifying fears as to his or her impartiality (for example, Romero Martin v. Spain (dec.), no. 32045/03, 12 June 2006 concerning pre-trial decisions; Ringeisen v. Austria, judgment of 16 July 1971, Series A no. 13, p. 40, § 97, concerning the situation of judges to whom a case was remitted after a decision had been set aside or quashed by a higher court; Thomann v. Switzerland, judgment of 10 June 1996, Reports 1996‑III, pp. 815-816, §§ 35-36 concerning the retrial of an accused convicted in absentia; and Craxi III v. Italy (dec.), no. 63226/00, 14 June 2001, concerning the situation of judges having participated in proceedings against co-offenders). [317] Mutatis mutandis, Gómez de Liaño y Botella v. Spain, no. 21369/04, §§ 67-72, 22 July 2008. [318] Paragraph 13 of the judgment. [319] Paragraphs 32 and 42 of the judgment. [320] Paragraphs 166 and 181 of the judgment. [321] It would have been useful to consider the remarkable empirical work done by Axel Dessecker, “Empirische Erkentnisse zur Entwicklung der Sicherungsverwahrung: Bestandaufnahme und neue Daten”, in Johannes Kaspar (ed.), Sicherungsverwahrung 2.0, Baden-Baden: Nomos, 2017, 11-34; Nicole Ansorge, Bericht über die 5. Erhebung zur länderübergreifenden Bestandsaufnahme der Situation des Vollzugs der Sicherungsverwahrung, Hannover, Niedersächsisches Justizministerium, 2014; Jutta Elz, Rückwirkungsverbot und Sicherungsverwahrung. Rechtliche und praktische Konsequenzen aus dem Kammerurteil des Europäischen Gerichtshofs für Menschenrechte im Fall M./.Deutschland, Wiesbaden, 2014; Tillmann Bartsch, Sicherungsverwahrung: Recht, Vollzug, aktuelle Probleme, Baden-Baden, 2010. [322] Paragraphs 44 and 45 of the judgment. [323] Paragraph 216 of the judgment. [324] Bergmann, cited above, §§ 14 and 34. [325] Paragraphs 47, 81 and 221 of the judgment. [326] Paragraph 223 of the judgment. [327] Vinter and Others v. the United Kingdom, nos. 66069/09, 130/10 and 3896/10, § 77, 9 July 2013, referring to “sentence plans” in Rule 103 of the European Prison Rules. [328] Ibid., § 79, referring to Rules 24 and 62 of the United Nations Standard Minimum Rules for the Treatment of Prisoners (1957) on treating any physical or mental defects which might hamper rehabilitation. [329] Murray v. the Netherlands (GC), no. 10511/10, 26 April 2016. See also my separate opinion joined in this case, as well as the one in Tautkus v. Lithuania, no. 29474/09, 27 November 2011, and my joint opinion with Judge Turkovic, in Khoroshenko v. Russia (GC), no. 41418/04, 30 June 2015. [330] Paragraph 234 of the judgment. [331] BVerfGE 128, 326, § 101. [332] BverfGE 128, 326, §§ 130 and 173. Going admittedly beyond the petita of this case, the Constitutional Court gave its “green light” to the political choice made by the legislator in the 2011 Therapy Placement Act. Later on, this anticipated approval of the said Act was confirmed by decision of 11 July 2013 (BVerfG 2 BvR 2302/11, 2 BvR 1279/12 (Zweiter Senat)). [333] The image comes from Michael Bock and Sebastian Sobota, “Sicherungsverwahrung: Das Bundesverfassungsgericht als Erfüllungsgehilfe eines gehetzten Gesetzgebers?” (2012) Neue Kriminalpolitik 106. [334] BVerfGE 111, 307, § 33. [335] See my text “Ein unausrottbares Missverständnis...“, cited above. [336] BVerfG 111, 307, § 62. [337] Michael Bock and Sebastian Sobota, “Sicherungsverwahrung: Das Bundesverfassungsgericht als Erfüllungsgehilfe eines gehetzten Gesetzgebers?”, cited above.

SECOND SECTION CASE OF ŠNEERSONE AND KAMPANELLA v. ITALY (Application no. 14737/09) JUDGMENT STRASBOURG 12 July 2011 FINAL 12/10/2011 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Šneersone and Kampanella v. Italy, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,David Thór Björgvinsson,Dragoljub Popović,Giorgio Malinverni,András Sajó,Guido Raimondi,Paulo Pinto de Albuquerque, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 21 June 2011, Delivers the following judgment: PROCEDURE 1. The case originated in an application (no. 14737/09) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Latvian nationals, Ms Jeļizaveta Šneersone and her son Marko Kampanella (“the applicants”), on 9 March 2009. 2. The applicants were represented by Ms A. Rektiņa, a lawyer practising in Rīga. The Italian Government (“the Government”) were represented by their Agent, Mrs E. Spatafora, the Agent of the Government. 3. The applicants alleged, in particular, that the Italian Government had violated their right to respect for their family guaranteed by Article 8 of the Convention. They furthermore pointed out that the first applicant’s absence from the hearing of the Rome Youth Court had rendered the decision-making process in the Italian courts unfair. 4. On 26 November 2009 the President of the Chamber to which the case had been allocated decided to give notice to the Italian Government of the part of the application concerning the procedural fairness of the proceedings in Italy, as well as the alleged interference with the right to respect for the applicants’ family life. 5. The parties replied in writing to each other’s observations. In addition, third-party comments were received from the Latvian Government, which had exercised its right to intervene (Article 36 § 1 of the Convention and Rule 44 § 1 (b)). The parties replied to those comments (Rule 44 § 6). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicants were born in 1973 and 2002 respectively and live in Rīga. A. Events prior to the applicants’ departure from Italy 7. In 2002 Marko was born to the first applicant in Italy. His father was an Italian national, who was never married to the first applicant but who has never disputed his paternity of Marko. In 2003 Marko’s parents separated and the applicants moved to a separate residence in Cerveteri, Italy. The applicants allege that ever since Marko’s birth he has in practice been in the exclusive care of his mother, and his father’s participation in his upbringing has been minimal. 8. At the request of the first applicant, on 20 September 2004 the Rome Youth Court (Tribunale per i minorenni di Roma) granted custody of Marko to his mother because the ongoing conflict between the parents made joint custody unfeasible. However, the court held that the father had a right to have his son stay at his home on specified days of the week and also whenever the first applicant was travelling outside Rome for a length of time exceeding one week or outside Italy for any length of time. The decision came into force on the day it was adopted. 9. Marko’s father appealed against that decision, requesting that joint custody be granted or that he be granted sole custody and that the first applicant be forbidden to take the child abroad or to change her place of residence without the father’s prior approval. The Youth Section of the Rome Court of Appeal (Corte d’appello di Roma. Sezione per i minorenni) rejected his request in a decision of 1 March 2005, noting, inter alia, that the child was developing well and that it was impossible to ensure his development by granting sole custody to the father. Furthermore, it was noted that the father’s concern that the first applicant might move to Latvia and take their son with her was unfounded because a judge in a guardianship hearing (giudice tutelare, “the guardianship judge”) had previously refused to issue a passport to Marko and also because his mother had strictly adhered to the ruling of the first-instance court and had left the child in his father’s care when travelling to Latvia. 10. On 24 June 2005 the guardianship judge granted an authorisation to issue a passport to Marko. On 11 July 2005 Marko’s father appealed against that decision. On 14 November 2005 the Rome Youth Court rejected Marko’s father’s appeal, because there was no evidence that the first applicant was planning to leave Italy with the child. 11. On 3 February 2006 the Court (Tribunale) of Civitavecchia ruled that Marko’s father had to make child support payments. The decision noted, inter alia, that the father had previously avoided financially supporting his son. Marko’s father failed to make the ordered payments and on 8 April 2006 the first applicant lodged a complaint about this with the Italian police. B. The applicants’ departure and the subsequent proceedings in Italy 12. It appears that because of Marko’s father’s failure to financially support the applicants their only income was money which the first applicant’s mother was sending from Latvia. However, in December of 2005 the first applicant’s mother informed her that she was no longer able to provide financial support. According to the applicants it was for that reason that they had no other choice but to return to Latvia in April of 2006. The applicants indicate that they subsequently continued to return to Italy for brief periods of time. According to the Italian Government, they have never been back. 13. On 7 February 2006 Marko was granted Latvian citizenship, since it was established that his mother’s permanent residence at the time of his birth had been in Latvia. Subsequently, the first applicant registered Marko’s permanent residence in an apartment in Rīga belonging to her. 14. On an unspecified date Marko’s father requested the Rome Youth Court to grant him interim sole custody of Marko and to order his return to Italy. 15. On 5 June 2006 that court issued a decision in which it upheld the father’s request. The decision noted that the first applicant’s actions had been harmful to the child. The court further held that it did not have jurisdiction to order the child’s return to Italy but indicated that Marko had to reside with his father. The decision finally provided that a hearing would be held on 25 October 2006 and that Marko’s father had an obligation to inform the first applicant of the court’s decision before 20 September 2006. 16. The applicants submit that the first applicant was not informed of the hearing that had been scheduled, nor did she receive a summons to it. The applicants further submit that Marko’s father had never requested full custody, but instead had asked the court to re-establish his rights of contact with the child and to order his return to Italy. The first applicant alleges that she only learned about the adopted decision in March of 2007. C. The Hague Convention proceedings in Latvia 17. On 16 January 2007 (by what appears to be a clerical error the document is dated 16 January 2006) the Italian Ministry of Justice, in its capacity as the Central Authority under Article 6 of the Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”), issued a request for Marko to be returned to Italy. 18. After receiving the request, the Latvian Ministry of Child and Family Matters (Bērnu un ģimenes lietu ministrija), which is the Latvian Central Authority within the meaning of the Hague Convention, initiated civil proceedings against the first applicant in accordance with Article 7 of the Hague Convention. The Rīga City Vidzeme District Court, which had been allocated the case, requested the Rīga City Orphans’ Court (Rīgas bāriņtiesa) to evaluate the applicants’ residence and to issue an opinion concerning the possibility of returning Marko to his father in Italy. After visiting the applicants’ residence, by a decision of 20 March 2007 the Orphans’ Court established that the child’s living conditions were beneficial for his growth and development. It further noted that Marko had adjusted to living in his mother’s residence and that she was ensuring his full physical and intellectual development. Accordingly, the Orphans’ Court concluded that the child’s return to Italy would not be compatible with his best interests. 19. That conclusion was also supported by the findings of a psychologist, whose opinion had been requested by the applicants’ lawyer. In a report dated 30 March 2007 the psychologist concluded that severance of contact between Marko and his mother was not to be allowed, in that it could negatively affect the child’s development and could even create neurotic problems and illnesses. 20. By a letter of 6 April 2007, the Italian Central Authority attested to the Latvian Central Authority that if any of the circumstances mentioned in Article 13 (b) of the Hague Convention arose Italy would be able to activate a wide-ranging child protection network which could ensure that Marko and his father received psychological help. 21. On 11 April 2007 the Rīga City Vidzeme District Court issued a decision by which it refused the father’s request to return Marko to Italy. That court based its decision on the Hague Convention and Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility (“the Regulation”). The court held that the removal of Marko had been wrongful within the meaning of the Hague Convention and the Regulation, since it had been carried out without his father’s permission. It was further noted that it was not expedient to hear Marko’s own opinion, since he was four years old at the time and was unable to form an opinion about which of his parents he should live with. 22. The court considered it necessary to assess whether the circumstances provided for in Article 13 (b) of the Hague Convention existed. Its conclusion was that those circumstances existed. It noted the ties between Marko and his mother and the fact that he had settled well in Latvia and considered that his continued residence in Latvia was essential for his development. The Vidzeme District Court found that the provisions of Article 11 (4) of the Regulation had not been fulfilled, because it was financially impossible for the first applicant to follow Marko to Italy if he were returned there. Furthermore, the guarantees provided for by Italy could not ensure that the child would not suffer psychologically and that his mental health would not be prejudiced. Accordingly the court applied Article 13 (b) of the Hague Convention and refused the father’s request. 23. On 24 May 2007 the Rīga Regional Court adopted a final decision, by which it rejected the father’s appeal against the decision of the Vidzeme District Court. In substance the Regional Court agreed with the conclusions of the first-instance court, adding that the guarantees offered by the Italian Central Authority concerning the protection available to Marko after his potential return to Italy were too vague and non-specific. It was also mentioned that Marko’s father had made no effort to establish contact with his son ever since the applicants’ departure from Italy. 24. On 4 June 2007 the first applicant requested the Rīga City Vidzeme District Court to grant her sole custody of Marko. On 8 January 2008 the Rīga Custody Court issued an opinion in which it concluded that granting sole custody of Marko to his mother was in his best interests. The Custody Court indicated among other considerations the fact that Marko’s father had not seen his son since 2006. D. Proceedings based on the Regulation 25. On 7 August 2007 Marko’s father lodged a request with the Rome Youth Court, which was based on Article 11 (4), (7) and (8) of the Regulation, to issue an immediately executable decision ordering Marko’s return to Italy. 26. On 11 December 2007 the first applicant submitted her observations to that court, in which she acknowledged that she had left Italy because of an ongoing conflict with Marko’s father and because of her difficult financial situation. She noted that Marko’s father had never travelled to see his son in Latvia; however, she stated that the applicants were always available to come to Italy to meet Marko’s father during school holidays. In conclusion, she requested that the court order child support payments in the amount of 700 euros (EUR) per month. 27. In the context of separate proceedings, on 11 January 2008 the Civitavecchia Court made a judgment concerning the first applicant’s request for child support payments and ordered Marko’s father to pay the first applicant EUR 4,800 plus interest, starting from 14 October 2004. 28. By a decision of 21 April 2008 the Rome Youth Court upheld the father’s request. It considered that the only role left to it by Article 11 (4) of the Regulation was to verify whether adequate arrangements had been made to secure the protection of the child from any identified risks within the meaning of Article 13 (b) of the Hague Convention after his or her return. After considering the first applicant’s submissions, the court noted that the father had proposed that Marko would stay with him, while the first applicant would be authorised to use a house in Aranova for periods of fifteen to thirty consecutive days during the first year and subsequently for one summer month every other year (the first applicant would have to cover her own travel expenses and one half of the rent of the house in Aranova), during which time Marko would be staying with his mother, while the father would retain the right to visit him on a daily basis. Marko would be enrolled in a kindergarten which he had attended before his removal from Italy. He would also attend a swimming pool he had used before his departure from Italy. The father furthermore undertook to ensure that the child would receive adequate psychological help and would attend Russian-language classes for Russian children. The court considered such an arrangement adequate to fulfil the requirements of the Regulation and ordered an immediate execution of its decision to return Marko to Italy and to have him reside with his father. The court also pointed out that it would be preferable if the first applicant accompanied Marko on his way to Italy but, should that prove to be impossible, his return would be arranged by the Italian embassy in Latvia. Due to the urgent nature of the case, the decision was pronounced to be immediately executable. 29. On 18 June 2008 (in what appears to be a clerical error, the date indicated in the document is 18 June 2009) the first applicant lodged a request with the Youth Court to suspend the execution of its decision. She argued that Marko had not been heard by the tribunal and that the Youth Court had not taken into consideration the arguments which the Latvian courts had used in their decisions when applying Article 13 of the Hague Convention. 30. On 20 June 2008 the first applicant lodged an appeal against the decision of the Rome Youth Court of 21 April 2008. In her appeal she requested that the execution of that decision be suspended; that the appeal court hear Marko; that there be an order that she retain sole custody of Marko; and that Marko’s father be ordered to pay EUR 700 per month in child support payments. 31. On 22 July 2008 the Rome Youth Court adopted a decision in which it rejected the first applicant’s request to suspend the execution of the decision of 21 April. That court considered that it was not appropriate to question the child, taking into account his young age and the level of maturity. Furthermore, it considered that Article 42 of the Regulation did not oblige it to hear the parties in person. It remarked that all of the decisions taken by the Latvian courts had been duly taken into consideration. Finally, the court upheld the father’s request to issue a return certificate in accordance with Articles 40, 42 and 47 of the Regulation. The certificate was issued on 29 July 2008. 32. On 14 August 2008 the Italian Central Authority sent a letter to the Latvian Central Authority, forwarding the Youth Court’s decision of 22 July 2008 and inviting it to advise the Italian side on “the initiatives that will be taken in order to enforce the return order made by the Youth Court in Rome”. 33. On 27 August 2008 a psychologist issued another report on Marko’s psychological state. The report concluded that the child had developed certain psychological problems in connection with his father’s request to return him to Italy. It further reiterated the conclusion from the earlier report, that Marko had strong emotional ties with his mother, the severance of which was impermissible. 34. On 10 September 2008 the first applicant received information from the Latvian Central Authority about the request made by the Italian Central Authority. The first applicant was informed that Latvia had an obligation to enforce the 21 April 2008 decision of the Rome Youth Court. 35. On 13 February 2009 the first applicant submitted a request to the Rīga City Vidzeme District Court, requesting it to indicate interim measures and not to allow Marko’s return to Italy “until he himself agrees to return to his father in Italy”. Further, she requested the court to require the Rome Court of Appeal and the Rome Youth Court to surrender their competence to the Vidzeme District Court, since that court had already, on 4 June 2007, been allocated a still pending case concerning the granting of sole custody of Marko to his mother, and also because the child’s permanent residence was in Latvia. 36. On 18 February 2009 the Vidzeme District Court adopted a decision in which it decided not to proceed with the first applicant’s request concerning the question of Marko’s custody, since it considered that the first applicant’s appeal against the Rome Youth Court’s decision of 21 April 2008, which was pending at the time before the Rome Court of Appeal, concerned the same subject matter, with the same parties involved. 37. On 21 April 2009 the Rome Court of Appeal adopted a decision concerning the first applicant’s appeal against the Rome Youth Court’s decision of 21 April 2008. The appeal court first of all observed that pursuant to Article 11 (8) of the Regulation (see below, paragraph 45) it had jurisdiction to decide the question of the child’s return to Italy. It then went on to observe that the first-instance court had correctly implemented the procedure set out in Article 11 (7) of the Regulation (see below, paragraph 45), as attested by the reasoned opinion of the European Commission (see below, paragraphs 39-45). The court continued by observing that the decision to grant Marko’s father sole custody had been motivated by the first applicant’s behaviour when she had chosen to take the child to Latvia and by the father’s undertaking to take care of the child in Italy. The Court of Appeal therefore upheld the decision of the Rome Youth Court and ordered that after the child’s return to Italy he be enrolled in a primary school. 38. On 10 July 2009 the bailiff of the Rīga Regional Court charged with the execution of the Rome Youth Court decision of 21 April 2008 invited Marko’s father to provide assistance in the execution of that decision by re‑establishing contact with his son. It appears that Marko’s father has not responded to that request in any way. E. Proceedings in the European Commission 39. On 15 October 2008 the Republic of Latvia brought an action against Italy before the European Commission in application of Article 227 of the Treaty Establishing the European Community. Latvia alleged, in particular, that the above-described proceedings in Italy (the decision adopted on 21 April 2008 and the issuing of the return certificate in July 2008) did not conform to the Regulation, in that neither of the applicants had been heard by the Rome Youth Court on 21 April 2008, and also that the Rome Youth Court had ignored the decisions of 11 April 2007 of the Rīga City Vidzeme District Court and of 24 May 2007 of the Rīga Regional Court. 40. On 15 January 2009 the Commission issued a reasoned opinion. It held that Italy had violated neither the Regulation nor the “general principles of the Community law”. In so far as is relevant to the case before the Court, the Commission held as follows. 41. At the outset it reiterated that, given the particular circumstances of the case, where Latvia was disputing the legality of the actions of an Italian authority with a judicial function, the scope of the Commission’s review was very limited. The Commission could only review matters of procedure, not substance, and it had to respect the decisions made by the Italian courts in the exercise of their discretionary powers. 42. Concerning the argument of the Republic of Latvia that the decision of 21 April 2008 had been adopted without attempting to obtain Marko’s opinion, the Commission stressed that it followed from the Regulation, the United Nations Convention on the Rights of the Child (“the UN Convention”), the Hague Convention and the Charter of Fundamental Rights of the European Union that hearing a child’s opinion with regard to questions concerning that child was a fundamental principle. However, that principle was not absolute. What had to be taken into account was the level of the child’s development. That level was not and could not be defined in any international instruments, therefore the national authorities retained wide discretion in such questions. The Commission held that the Italian Central Authority had used that discretion and indicated in the certificate of return that it had not been necessary for the Italian courts to hear Marko. Therefore, none of the international instruments that had been invoked by Latvia had been breached. 43. Latvia further criticised the fact that the decision of 21 April 2008 had been adopted without duly taking into account the position of the first applicant, and that the decision had been adopted without hearing either of the parties, including the first applicant, who was neither informed of the time of the forthcoming hearing nor invited to take part in it. The Commission noted that the decision of 21 April 2008 had been adopted in written proceedings, without hearing oral submissions of either of the parties, which was fully in conformity with the applicable Italian procedural legislation. The Commission interpreted Article 42 (2) (b) of the Regulation (see below, paragraph 51) in the light of the Court’s case-law (referring in particular to Dombo Beheer B.V. v. the Netherlands, 27 October 1993, § 32, Series A no. 274), and considered that the use of written proceedings was permissible as long as the principle of equality of arms was observed. The Commission observed that the first applicant had been given an opportunity to submit written observations on equal grounds with Marko’s father and thus neither the Regulation nor the UN Convention had been violated. 44. Lastly, Latvia criticised the decision of 21 April 2008 and the related return certificate for ignoring the Latvian authorities’ reasons for refusing to order Marko’s return to Italy. The Commission indicated that its role was not to analyse the substance of the Italian authorities’ decisions – it was limited to appraising the compliance with the procedure which led to the adoption of those decisions with the procedural requirements of the Regulation. Nothing in the Regulation forbade the Italian authorities to come to a conclusion that was opposite to the one reached by the Latvian authorities. Quite to the contrary, the Commission considered that the Regulation gave the country of the child’s residence prior to the abduction “the final say” in ordering the return, even if his or her new country of residence had declined to order the return. In this regard the Commission noted that the Rīga Regional Court, when adopting the decision of 24 May 2007 (see above, paragraph 23), had referred to the Law of Civil Procedure, section 64419 (6) (2) of which permits refusal to return a child if the child is well settled in Latvia and his or her return is not in his or her interests. The Commission questioned the Latvian court’s alleged failure to invoke the “much more binding” Article 13 of the Hague Convention, which in their opinion demonstrated that the Latvian courts had devoted attention to Marko’s situation in Latvia instead of the potential consequences of his return to Italy. In short, the Commission had “not discovered any indications” that life in Italy together with his father would expose Marko to physical or psychological harm or otherwise place him in an intolerable situation. What is more, the Commission considered that the Rome Youth Court in its decision of 21 April 2008 had directly addressed the Rīga Regional Court’s concerns that the measures envisaged for Marko’s protection upon his return to Italy were too vague – the Italian court had set out specific obligations on the father which would allow for balanced development of the child and for him to have contact with both parents. 45. In conclusion the Commission conceded that the decision of 21 April 2008 did not contain a detailed analysis of either the arguments of the first applicant or of those of Marko’s father. However, it considered that the Regulation did not require such an analysis. Therefore, the exact procedure to be followed in that respect was left to the national courts’ discretion. Taking that into account, it was found that neither Latvia nor the Commission could dispute the particular formulation of the Italian court’s decision. II. RELEVANT INTERNATIONAL LAW 46. The Hague Convention, which has been ratified by Latvia and Italy, provides, in so far as relevant, as follows. Article 3 “The removal or the retention of a child is to be considered wrongful where – a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.” Article 4 “The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.” Article 6 “A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities. [..]” Article 7 “Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective State to secure the prompt return of children and to achieve the other objects of this Convention. In particular, either directly or through any intermediary, they shall take all appropriate measures – [..] f) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access; [..]” Article 11 “The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be.” Article 12 “Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.” Article 13 “Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that – a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.” Article 20 “The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.” 47. Paragraph 17 of the preamble of the Regulation explains its scope, in so far as it is relevant to this case, as follows: “In cases of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this end the Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulation, in particular Article 11. The courts of the Member State to or in which the child has been wrongfully removed or retained should be able to oppose his or her return in specific, duly justified cases. However, such a decision could be replaced by a subsequent decision by the court of the Member State of habitual residence of the child prior to the wrongful removal or retention. Should that judgment entail the return of the child, the return should take place without any special procedure being required for recognition and enforcement of that judgment in the Member State to or in which the child has been removed or retained.” 48. With regard to jurisdiction in cases of child abduction, the Regulation, in Article 10, provides, in so far as is relevant, as follows: “In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and: ... (b) the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met: (i) within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained; ... (iv) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention.” 49. Article 11, which is specifically singled out in the preamble, provides as follows: “1. Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the Hague Convention [..], in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 shall apply. 2. When applying Articles 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity. 3. A court to which an application for return of a child is made as mentioned in paragraph 1 shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law. Without prejudice to the first subparagraph, the court shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged. 4. A court cannot refuse to return a child on the basis of Article 13 (b) of the [..] Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return. 5. A court cannot refuse to return a child unless the person who requested the return of the child has been given an opportunity to be heard. [..] 7. Unless the courts in the Member State where the child was habitually resident immediately before the wrongful removal or retention have already been seized by one of the parties, the court or central authority that receives [a copy of an order on non-return pursuant to Article 13 of the Hague Convention and of the documents relevant to that order] must notify it to the parties and invite them to make submissions to the court, in accordance with national law, within three months of the date of notification so that the court can examine the question of custody of the child. [..] 8. Notwithstanding a judgment of non-return pursuant to Article 13 of the [..] Hague Convention, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under this Regulation shall be enforceable in accordance with Section 4 of Chapter III below in order to secure the return of the child.” 50. Pursuant to Article 40 (1) (b) of the Regulation, its Section 4 applies to “the return of a child entailed by a judgment given pursuant to Article 11 (8)” 51. Article 42 in Section 4 provides the following: “1. The return of a child referred to in Article 40 (1) (b) entailed by an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with paragraph 2. Even if national law does not provide for enforceability by operation of law, notwithstanding any appeal, of a judgment requiring the return of the child mentioned in Article 11 (b) (8), the court of origin may declare the judgment enforceable. 2. The judge of origin who delivered the judgment referred to in Article 40 (1) (b) shall issue the certificate referred to in paragraph 1 only if: (a) the child was given an opportunity to be heard, unless a hearing was considered inappropriate having regard to his or her age or degree of maturity; (b) the parties were given an opportunity to be heard; and (c) the court has taken into account in issuing its judgment the reasons for and evidence underlying the order issued pursuant to Article 13 of the 1980 Hague Convention. [..]” 52. As concerns the enforcement of judgments requiring the return of a child, Article 47 of the Regulation provides the following: “1. The enforcement procedure is governed by the law of the Member State of enforcement. 2. Any judgment delivered by a court of another Member Stat and [..] certified in accordance with [..] Article 42 (1) shall be enforced in the Member State of enforcement in the same conditions as if it had been delivered in that Member State. In particular, a judgment which has been certified according to [..] Article 42 (1) cannot be enforced if it is irreconcilable with a subsequent enforceable judgment.” 53. Lastly, Articles 60 and 62 of the Regulation provide that the Regulation “shall take precedence” over the Hague Convention “in so far as [it concerns] matters governed by this Regulation” and that the Hague Convention continues “to produce effects between the Member States which are party thereto”. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 54. The applicants complain under Article 8 of the Convention that the Italian courts’ decisions ordering Marko’s return to Italy were contrary to his best interests as well as in violation of international and Latvian law. 55. The applicants also complain under Article 6 of the Convention about the procedural fairness of decision-making in Italian courts. In particular, they are critical of the fact that the first applicant was not present at the hearing of the Rome Youth Court. 56. The applicants’ complaints concerning the procedure followed by the Italian courts were communicated to the Government under Article 8 of the Convention, which, whilst it contains no explicit procedural requirements, requires that the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by that Article (see, inter alia, Iosub Caras v. Romania, no. 7198/04, § 41, 27 July 2006, and Moretti and Benedetti v. Italy, no. 16318/07, § 27, ECHR 2010‑... (extracts)). 57. In so far as is relevant, Article 8 of the Convention provides as follows: “1. Everyone has the right to respect for his ... family life... . 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 1. Compatibility ratione personae 58. The Italian Government argued that the application, in so far as it related to the second applicant, was incompatible ratione personae with the Convention within the meaning of Article 35 §§ 3 (a) and 4 of the Convention. In that regard the Italian Government argued that the present case essentially concerned a conflict between the second applicant’s two parents, and since both parents in principle have a right to respect for family life together with their son, allowing only one of the parents (in this case the mother) to represent the child’s interests before the Court would disrupt this parental equality. The Government furthermore referred to Moretti and Benedetti, (cited above, § 32), and S.D., D.P. and A.T. v. the United Kingdom (no. 23715/94, Commission decision of 20 May 1996, unreported) and indicated the possibility that a conflict of interests might exist, in particular considering that on 5 June 2006 the Rome Youth Court had granted interim sole custody to Marko’s father (see paragraph 15 above). 59. The applicants argued that what was at stake were the interests of the child, the second applicant, as opposed to the interests of his father. Given the paramount importance of the interests of the child, there was no other choice than to have him as a party to the case before the Court. 60. The Latvian Government disagreed with the objection of the Italian Government. They referred to the Court’s statement in Iosub Caras, (cited above, § 21) that “minors can apply to the Court even, or indeed especially, if they are represented by a parent who is in conflict with the authorities and criticises their decisions and conduct as not being consistent with the rights guaranteed by the Convention. In such cases, the standing as the natural parent suffices to afford him or her the necessary power to apply to the Court on the child’s behalf, too, in order to protect the child’s interests.” They furthermore indicated that, since the proceedings in Italy had concerned an order to separate the first and second applicants, it was clear that what was being criticised were decisions inconsistent with Article 8 of the Convention (a reference was made to Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 90, ECHR 2010‑..., and Iosub Caras, cited above, § 29). 61. The Court observes in the first place that both of the cases referred to by the Italian Government referred to the representation of a child not by their natural parent but instead by individuals not related to the children in question. However, even in such circumstances the Commission and the Court were careful to point out that a restrictive or technical approach in the area of representation of children before the Court was to be avoided. The Court cannot but agree with the Latvian Government that the facts in the present case are more reminiscent of those of the above-cited Iosub Caras and Neulinger and Shuruk. The Court does not see any reason to depart from the line of reasoning used in those cases. Therefore, the Italian Government’s argument concerning the incompatibility ratione personae must be rejected. 2. Exhaustion of domestic remedies 62. The Italian Government noted that when the applicants first applied to the Court the first applicant’s appeal against the decision of the Rome Youth Court of 21 April 2008 were still pending. It was only adjudicated upon on 28 September 2009. Therefore, the application had to be declared inadmissible for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention. 63. The applicants stated that they had a right to submit an application to the Court without waiting for the final adjudication in the Italian courts from the moment when the first applicant learned that Italy had officially requested the Latvian authorities to ensure Marko’s return to Italy, since such a request was of a self-executing nature and was not subject to any additional review by the Latvian authorities. 64. The Latvian Government agreed with the applicants that, once the non-appealable certificate of return had been issued pursuant to Article 42 (1) of the Regulation, the applicants did not have an obligation to wait for the completion of adjudication in the Italian courts before petitioning the Court. 65. In response to the applicants and the Latvian Government the Italian Government emphasised that the concepts of “an enforceable judgment” within the meaning of Article 42 of the Regulation, and of a “final decision” within the meaning of Article 35 § 1 of the Convention, were not to be confused. The Italian Government pointed out in particular that the Regulation specifically stated that a certificate of return may be issued on the basis of a judgment which has not yet become final. 66. The Court observes that it is not in dispute between the parties that the adjudication in the Italian courts has now been completed. In other words, the Italian State has been afforded the opportunity of preventing or redressing the violation alleged against them (see Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999‑V). The Court has previously held that in principle applicants are obliged to make a diligent effort to exhaust the domestic remedies before submitting an application to the Court. However, it has been deemed acceptable if the final stage of the exhaustion of the domestic remedies takes place after the application has been submitted but before the Court decides on its admissibility (see, for example, Yakup Köse v. Turkey (dec.), no. 50177/99, 2 May 2006). The Court thus dismisses the respondent Government’s objection of non-exhaustion of domestic remedies. 3. Compliance with the six-month rule 67. In the alternative, the respondent Government pointed out that if the Court were to consider the Rome Youth Court decision of 21 April 2008 to be the final one, the application would be inadmissible according to Article 35 §§ 1 and 4 of the Convention for failure to comply with the six‑month rule. 68. The applicants pointed out that it was only on 10 September 2008 that the first applicant had learned that a return certificate had been issued (see above, paragraph 34), which was therefore the date to be taken into account for calculating the six-month period within the meaning of Article 35 § 1 of the Convention. 69. In response to the applicants’ argument, the respondent Government submitted that the applicants could not allege that they only became aware of the decision of 21 April 2008 after the return certificate had been communicated to them, since their lawyer in Italy had actively contested the decision of 21 April 2008. Since the applicant’s representative in Italy had lodged an appeal against the above-mentioned decision on 20 June 2008, that date was the latest one from which to start counting the six-month period for complaining to the Court. 70. The Latvian Government pointed out that the measure that directly interfered with the applicants’ family life was the return certificate, which the applicants received on 10 September 2008. Therefore, the time-limit for lodging an application with the Court started to run on that date. In the alternative, the Latvian Government argued that since the applicants were complaining about “a consistent policy adopted by the Italian authorities in dealing with their case”, their complaints in effect concerned a continuing situation. 71. The Court notes that the respondent Government correctly observed that at the time the applicants lodged their application with the Court (on 9 March 2009), the proceedings were still pending before the Italian courts and were completed only on 21 April 2009 (see above, paragraph 37). Against that background, the Court dismisses the Italian Government’s argument concerning the alleged non-compliance with the six-month rule. 4. Conclusion 72. The Court dismisses the respondent Government’s arguments concerning alleged incompatibility ratione personae, failure to exhaust the domestic remedies and failure to comply with the six-month rule. The Court furthermore considers, in the light of the parties’ submissions, that the applicants’ complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring these complaints inadmissible has been established. The applicants’ complaints of interference by the Italian authorities in their family life and of the procedural unfairness of the decision-making process in the Italian courts must therefore be declared admissible. B. Merits 1. Submissions by the parties (a) The applicants 73. The applicants emphasised that there existed very close emotional links between them. Marko’s father had not developed any emotional link with the child because they had seen each other very rarely, even when the applicants still resided in Italy. Furthermore, Marko and his father did not have a common language. According to the applicants, the first applicant has issued repeated invitations to Marko’s father to visit his son in Rīga. He has not responded to those invitations, which is just one of the many facts that had not been taken into account by the Italian courts. Against that background the applicants pointed out that if Marko were to be separated from his mother it would threaten his development and mental health. In this regard the applicants submitted that Marko was receiving systematic assistance from a psychologist in order to overcome the stress, anxiety and fear caused by the prospects of his separation from his mother and his being sent to Italy. 74. The applicants further submitted that when the Italian courts adopted decisions diametrically opposite to those adopted by the Latvian courts, they did not observe the principle of mutual trust between courts. The allegedly inadequately reasoned decisions adopted by the Italian courts furthermore did not take into account the available information concerning Marko’s living arrangements in Latvia. 75. According to the applicants, the arrangements for the first applicant’s visits with her son envisaged by the Italian courts were utterly inadequate, in particular taking into account the fact that she did not have the financial means to reside in Italy, where she was virtually unemployable since she did not speak any Italian. Furthermore, the “safety measures” suggested by the Italian authorities and accepted by the Italian courts did not guarantee the child’s physical and psychological safety and were in direct contradiction with the psychologist’s conclusions relied on by the Latvian courts. The applicants further pointed out that the Italian courts had failed to examine or to have examined the proposed residence of the child in Italy. According to the information available to the applicants, the building located at the address mentioned by the Italian courts contained offices. Lastly, the applicants criticised the Italian courts’ failure to request and to take into account any information concerning Marko’s father’s income and property in order to assess whether he was capable of raising the child. (b) The respondent Government 76. The Italian Government submitted that there had been no interference with the first applicant’s rights under Article 8, since she herself was the one who had interfered with Marko’s father’s right to family life (in this respect a reference was made to Gnahoré v. France, no. 40031/98, § 59, ECHR 2000‑IX), and therefore could not argue that an interference arose as a result of the Italian authorities’ legitimate but as yet unsuccessful attempt to re-establish the previously existing situation, which had been in full conformity with the law. In other words, the parent whose actions had been contrary to the law (the respondent Government observed that there was no dispute between the parties that Marko’s removal from Italy had been wrongful) was not to be allowed to benefit from those actions. In any case, the Italian authorities had envisioned the possibility for the applicants’ meetings after Marko’s return to Italy. The respondent Government furthermore submitted that even if any interference with the applicants’ rights had taken place, it had been in accordance with the law, namely, Article 11 of the Regulation, and it had also been necessary to eliminate the consequences of Marko’s unlawful removal from Italy. In other words, the aim of the interference had been the protection of the rights and freedoms of the child. 77. As concerns the question of whether ordering Marko’s return was “necessary in a democratic society”, the respondent Government submitted that the Italian authorities had duly taken into account and weighed the best interests of the child. The Italian Government considered that the applicants’ argument that Marko and his father could not communicate because of a language barrier was not appropriate as regards an eight-year-old child who has spent a large portion of his life in Italy, where he should not encounter any particular difficulties, in particular considering that both Latvia and Italy were member states of the European Union. To substantiate the argument that the alleged interference with the applicants’ family life had been “necessary”, the respondent Government once again referred to the guarantees offered by the Italian authorities (see above, paragraph 28). Lastly, they considered that the specific arrangements to be made in respect of Marko fell within Italy’s margin of appreciation. 78. The respondent Government furthermore referred to the object and purpose of the Hague Convention within the meaning of Article 31 (1) of the Vienna Convention on the Law of Treaties, which, according to the Court’s judgment Maumousseau and Washington v. France (no. 39388/05, § 69, ECHR 2007‑XIII), was the deterrence of the proliferation of international child abductions. That goal could be achieved by avoiding the consolidation of de facto situations brought about by wrongful removals of children. For that purpose the status quo ante had to be restored as quickly as possible. As to the applicability in the present case of the exception to the general obligation to return a wrongfully removed child that is contained in Article 13 (b) of the Hague Convention, the respondent Government analysed three possible justifications for non-return: firstly, the argument that Marko had settled in Latvia and adapted to life there and that his best interests required his continued residence with his mother; secondly, the allegation that the father had not had any contact with the child; and, thirdly, that because of the length of the Italian procedures the return of Marko to Italy and the restoration of the status quo ante was no longer possible. 79. Regarding the question of Marko’s continued residence with his mother, the respondent Government underlined the first applicant’s refusal to act in accordance with the decisions of the Italian courts. As to Marko’s father’s willingness to care for his son, the respondent Government pointed out that apart from short-lived disputes concerning child support payments, the father had always showed willingness to enjoy a stable family life with his son in Italy. The Government also underlined that the father was not an alcoholic, a drug addict or otherwise unfit to raise a child. Lastly, concerning the effect of the length of proceedings, the respondent Government emphasised that the Italian courts had dealt with the case in only ten months; therefore, the Italian authorities could not be held responsible for the length of time that Marko had spent away from his father. 80. In so far as the procedural fairness of the decision-making in the Italian courts was concerned, the respondent Government fully endorsed the findings of the European Commission (see above, paragraphs 39-45). More specifically, they pointed out that the proceedings in the Italian courts had been fair and both parties had been given an opportunity to make submissions to those courts, irrespective of the fact that the submissions had been made in writing. Furthermore, the first applicant had been represented by counsel. 81. The respondent Government sought to differentiate the facts forming the background to the recent Grand Chamber judgment Neulinger and Shuruk v. Switzerland (cited above, § 139) from the facts of the present case in that the former concerned the motivation for a refusal to return a child to the country of origin, while the present case concerned proceedings in the country of origin, and its purpose was not to justify the actions of the Latvian authorities. (c) The third-party Government 82. The Latvian Government relied on Neulinger and Shuruk and criticised the Italian authorities’ failure to conduct an in-depth examination of the entire family situation of the applicants and Marko’s father. It was alleged that the Italian courts had failed to take into account the fact that the first applicant was and always had been Marko’s primary caregiver. Marko’s father had had only random contact with his son even while the applicants were still residing in Italy. Furthermore, Marko’s father had not made any attempt to contact his son during the more than four years that the applicants had been living in Latvia. In addition, it was pointed out that Marko had lived in Latvia much longer than he had resided in Italy. Lastly, the Italian courts had not assessed Marko’s father’s capacity to raise a child on his own and had not considered alternative solutions for ensuring their mutual contact (in this regard the Latvian Government referred to Deak v. Romania and the United Kingdom, no. 19055/05, § 69, 3 June 2008). 83. Concerning the procedural fairness of the decision-making in the Italian courts, the Latvian Government submitted that it was incorrect to rely on Articles 23 (b) and 42 (2) (a) of the Regulation in isolation, since those provisions had to be interpreted in harmony with the relevant rules of international law, namely the UN Convention and Article 8 of the Convention. This contextual interpretation clearly led to the conclusion that the applicants’ procedural rights had been disregarded by the Italian courts. 2. Assessment of the Court 84. The Court will deal separately with the applicant’s complaint about the order for Marko’s return, and the complaint that the first applicant was not present at the hearing of the Rome Youth Court on 21 April 2008. (a) General principles 85. In Neulinger and Shuruk (cited above, §§ 131-140, with further references) the Court articulated and crystallised a number of principles which have emerged from its case-law on the issue of the international abduction of children, as follows. (i) The Convention cannot be interpreted in a vacuum, but, in accordance with Article 31 § 3 (c) of the Vienna Convention on the Law of Treaties (1969), account is to be taken of any relevant rules of international law applicable to the Contracting Parties (see Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 90, ECHR 2001‑II). (ii) The positive obligations that Article 8 of the Convention imposes on States with respect to reuniting parents with their children must therefore be interpreted in the light of the UN Convention and the Hague Convention (see Maire v. Portugal, no. 48206/99, § 72, ECHR 2003‑VII, and Ignaccolo-Zenide v. Romania, no. 31679/96, § 95, ECHR 2000‑I). (iii) The Court is competent to review the procedure followed by the domestic courts, in particular to ascertain whether those courts, in applying and interpreting the provisions of the Hague Convention, have secured the guarantees of the Convention and especially those of Article 8 (see, to that effect, Bianchi v. Switzerland, no. 7548/04, § 92, 22 June 2006, and Carlson v. Switzerland, no. 49492/06, § 73, 6 November 2008). (iv) In this area the decisive issue is whether a fair balance between the competing interests at stake – those of the child, of the two parents, and of public order – has been struck, within the margin of appreciation afforded to States in such matters (see Maumousseau and Washington, cited above, § 62), bearing in mind, however, that the child’s best interests must be the primary consideration (see, to that effect, Gnahoré, cited above, § 59). (v) “The child’s interests” are primarily considered to be the following two: to have his or her ties with his or her family maintained, unless it is proved that such ties are undesirable, and to be allowed to develop in a sound environment (see, among many other authorities, Elsholz v. Germany [GC], no. 25735/94, § 50, ECHR 2000‑VIII, and Maršálek v. the Czech Republic, no. 8153/04, § 71, 4 April 2006). The child’s best interests, from a personal development perspective, will depend on a variety of individual circumstances, in particular his age and level of maturity, the presence or absence of his parents and his environment and experiences. (vi) A child’s return cannot be ordered automatically or mechanically when the Hague Convention is applicable, as is indicated by the recognition in that instrument of a number of exceptions to the obligation to return the child (see, in particular, Articles 12, 13 and 20), based on considerations concerning the actual person of the child and his environment, thus showing that it is for the court hearing the case to adopt an in concreto approach to it (see Maumousseau and Washington, cited above, § 72). (vii) The task to assess those best interests in each individual case is thus primarily one for the domestic authorities, which often have the benefit of direct contact with the persons concerned. To that end they enjoy a certain margin of appreciation, which remains subject, however, to European supervision whereby the Court reviews under the Convention the decisions that those authorities have taken in the exercise of that power (see, for example, Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299‑A, and Kutzner v. Germany, no. 46544/99, §§ 65-66, ECHR 2002‑I; see also Tiemann v. France and Germany (dec.), nos. 47457/99 and 47458/99, ECHR 2000‑IV; Bianchi, cited above, § 92; and Carlson, cited above, § 69). (vii) In addition, the Court must ensure that the decision-making process leading to the adoption of the impugned measures by the domestic court was fair and allowed those concerned to present their case fully (see Tiemann, cited above, and Eskinazi and Chelouche v. Turkey (dec.), no. 14600/05, ECHR 2005‑XIII (extracts)). To that end the Court must ascertain whether the domestic courts conducted an in-depth examination of the entire family situation and of a whole series of factors, in particular of a factual, emotional, psychological, material and medical nature, and made a balanced and reasonable assessment of the respective interests of each person, with constant concern for determining what the best solution would be for the abducted child in the context of an application for his return to his country of origin (see Maumousseau and Washington, cited above, § 74). 86. The Court will now apply those principles to the specific complaints raised by the applicants. (b) The order for the second applicant to be returned to Italy 87. The Court reiterates that the second applicant’s return to his father in Italy was ordered by the Rome Youth Court decision of 21 April 2008 (see above, paragraph 28), which was upheld on appeal by the decision of the Rome Court of Appeal adopted on 21 April 2009 (see above, paragraph 37). The return was ordered on the basis of sub-paragraphs (4), (7) and (8) of Article 11 of the Regulation. Article 11 refers to the procedure for the return of a wrongfully removed child. That procedure is set out in Articles 12 and 13 of the Hague Convention. 88. The respondent Government have argued that there has been no interference with the applicants’ family life (see above, paragraph 76). The Court has previously found that an interference occurs where domestic measures hinder the mutual enjoyment by a parent and a child of each other’s company (see, for example, Raban v. Romania, no. 25437/08, § 31, 26 October 2010). In the present case a psychologist, whose report was solicited by the applicants’ representative, has confirmed that Marko is suffering psychological stress and anxiety in connection with his potential return to Italy (see above, paragraph 33). That cannot but have a significant impact on the applicants’ enjoyment of their family life. Furthermore, the Court has more than once found that an order for return, even if it has not been enforced, in itself constitutes an interference with the right to respect for family life (see, for example, Neulinger and Shuruk, cited above, §§ 90-91, and Lipkowsky and McCormack v. Germany (dec.), no. 26755/10, 18 January 2011). In the present case there are no reasons requiring a departure from that approach. Accordingly, the Rome Youth Court’s order to return Marko to Italy constituted an interference with the applicants’ right to respect for family life. 89. Turning to the question of whether the interference complained of was “in accordance with the law” within the meaning of Article 8 § 2 of the Convention, the Court observes that in the present case the parties have not disputed that the first applicant’s removal of Marko from Italy was wrongful within the meaning of Article 3 of the Hague Convention (compare with Neulinger and Shuruk, cited above, §§ 99-105). Article 12 of the Hague Convention requires the return of wrongfully removed children, subject to exceptions set out in Article 13 of that Convention. In such circumstances the Court does not doubt that the interference was ordered in accordance with the law, namely Article 11 of the Regulation in combination with Article 12 of the Hague Convention. 90. As to the question of whether the order to return Marko to Italy pursued one of the legitimate aims exhaustively listed in Article 8 § 2 of the Convention, the respondent Government advanced two theories: that the interference was necessary to protect Marko’s father’s right to respect for family life, or to safeguard the best interests of the child. There is no real dispute between the parties that the decision of the Italian courts to return Marko to Italy pursued the legitimate aim of protecting the rights and freedoms of the child and his father. Consequently, the Court accepts that it was the case (see also Neulinger and Shuruk, § 106). 91. The Court must therefore determine whether the interference in question was “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention, interpreted in the light of the above-mentioned international instruments, the decisive issue being whether a fair and proportionate balance between the competing interests at stake – those of the child, of the two parents, and of public order – was struck, within the margin of appreciation afforded to States in such matters (see paragraph 85 above, (iv)). 92. In that regard the Court emphasises that it is not its task to take the place of the competent authorities in examining whether there would be a grave risk that Marko would be exposed to psychological or physical harm, within the meaning of Article 13 of the Hague Convention, if he returned to Italy. However, the Court is competent to ascertain whether the Italian courts, in applying and interpreting the provisions of that Convention and of the Regulation, secured the guarantees set forth in Article 8 of the Convention, particularly taking into account the child’s best interests (see Neulinger and Shuruk, cited above, § 141). It is essential also to keep in mind that the Hague Convention is essentially an instrument of a procedural nature and not a human rights treaty protecting individuals on an objective basis (see Neulinger and Shuruk, cited above, § 145). 93. The Court cannot but observe that the reasoning contained in the Italian courts’ decisions of 21 April 2008 (see above, paragraph 28) and 21 April 2009 (see above, paragraph 37) was rather scant (see also the opinion of the European Commission, above, paragraph 45). Even if the Court accepted the Italian courts’ theory that their role was limited by Article 11 (4) of the Regulation to assessing whether adequate arrangements had been made to secure Marko’s protection after his return to Italy from any identified risks within the meaning of Article 13 (b) of the Hague Convention, it cannot fail to observe that the Italian courts in their decisions failed to address any risks that had been identified by the Latvian authorities. Thus, for example, the conclusions contained in the Rīga Custody Court’s report (see above, paragraph 18), the expert psychologist’s report (see above, paragraph 19) and the Rīga City Vidzeme District Court’s decision of 11 April 2007 (see above, paragraph 22) were not explicitly mentioned in either of the two decisions. It is therefore necessary to verify whether the arrangements for Marko’s protection listed in the Italian courts’ decisions can be in any case considered to have reasonably been taken into account his best interests. 94. The measures proposed by Marko’s father and subsequently accepted as adequate by two levels of Italian courts are summarised in paragraph 28 above. The considerations identified by the Latvian authorities were that the child was well adjusted to living with his mother in Rīga (paragraph 18), that his separation from his mother would adversely affect his development and might create neurotic problems, illnesses or both (paragraph 19), and that strong ties had formed between Marko and his mother (paragraph 22). In addition, in their observations before this Court the applicants indicated that the first applicant was unable to accompany the child to Italy, since she did not have sufficient financial means to reside there and was essentially unemployable, since she did not know any Italian, and that the child and his father had no language in common, had never lived together without the mother, and had not seen each other for more than three years at the time when the Rome Court of Appeal dismissed the first applicant’s appeal against the decision of 21 April 2008 (see also Neulinger and Shuruk, cited above, § 150). The Latvian judicial authorities in their decisions also found that it was financially unfeasible for the first applicant to return to Italy (the Rīga City Vidzeme District Court decision of 11 April 2007, see above, paragraph 22), confirmed that Marko’s father had not seen his son since 2006 (the Custody Court’s opinion of 8 January 2008, see above, paragraph 24) and had made no effort to establish contact with Marko in the meantime (the Rīga Regional Court decision of 24 May 2007, see above, paragraph 23). 95. The Italian courts did not refer to the two psychologists’ reports that had been drawn up in Latvia pursuant to requests from the applicants’ representative and then relied upon by the Latvian courts. Neither did the Italian courts refer to the potential dangers to Marko’s psychological health that had been identified in those reports. Had those courts considered the reports unreliable, they certainly had the opportunity to request a report from a psychologist of their own choosing. However, that was not done either. As to the residence that Marko’s father proposed as his accommodation after his return to Italy, no effort was made by any Italian authorities to establish whether it was suitable as a home for a young child. The house was not inspected, either by the courts or by another person of their choosing. Those conditions, taken cumulatively, leave the Court unpersuaded that the Italian courts sufficiently appreciated the seriousness of the difficulties which Marko was likely to encounter in Italy (see Neulinger and Shuruk, cited above, § 146, with further references). 96. As to the adequacy of the “safeguards” of Marko’s well-being proposed by his father and accepted by the Italian courts as adequate, the Court considers that allowing the first applicant to stay with the child for fifteen to thirty days during the first year and then for one summer month every other year after that is a manifestly inappropriate response to the psychological trauma that would inevitably follow a sudden and irreversible severance of the close ties between mother and child. In the opinion of the Court, the order to drastically immerse a child in a linguistically and culturally foreign environment cannot in any way be compensated by attending a kindergarten, a swimming pool and Russian-language classes. While the father’s undertaking to ensure that Marko receives adequate psychological support is indeed laudable, the Court cannot agree that such an external support could ever be considered as an equivalent alternative to psychological support that is intrinsic to strong, stable and undisturbed ties between a child and his mother. 97. Lastly, the Court observes, with the third-party Government, that the Italian courts had not considered any alternative solutions for ensuring contact between Marko and his father. 98. For these reasons the Court concludes that the interference with the applicants’ right to respect for their family life was not “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention. There has accordingly been a violation of Article 8 of the Convention on the account of the Italian courts’ order for Marko’s return to Italy. (c) The procedural fairness of the decision-making in the Rome Youth Court 99. So far as the fairness of the Italian decision-making process is concerned the applicants considered that the first applicant’s absence from the hearing of the Rome Youth Court rendered it unfair and did not afford due respect to the interests safeguarded by Article 8 (see, inter alia, Iosub Caras v. Romania, cited above, § 41). 100. The Court finds that the procedural equality between the parties to the case was observed so far as the observance of the applicants’ interests under Article 8 was concerned. The decisive procedural issue in the present case is whether the authorities charged with decision-making were placed in a position to duly respect and give force to the parties’ rights under Article 8. Taking into account that both Marko’s father and the first applicant submitted, with the aid of counsel, detailed written statements to two levels of Italian courts, the Court is satisfied that the procedural fairness requirement of Article 8 has been observed (see also the conclusions of the European Commission, above, paragraph 43). So far as the adequacy of those courts’ reaction to the arguments submitted by the applicants is concerned, the Court refers to its conclusions above. 101. Accordingly there has been no violation of Article 8 on account of the first applicant’s absence from the hearing of the Rome Youth Court. II. OTHER COMPLAINTS 102. The applicants also complained under Article 6 § 1 of the Convention about the length and unfairness of the first set of proceedings in the Italian courts and about the fact that Marko was not heard in person by any Italian courts. 103. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 104. 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 105. The applicants claimed EUR 10,000 in respect of non-pecuniary damage, approximately EUR 10 for each day of anxiety since the applicants first learned of Marko’s father’s request for Marko to be returned to Italy. 106. The respondent Government argued that the applicant had not submitted itemised particulars of that claim, as required by Rule 60 § 2 of the Rules of the Court. 107. The Court notes that the applicants have adequately explained the method used for arriving at the amount claimed in respect of non-pecuniary damage. In the light of the fact that the applicants must have demonstrated a clear link between the violation of Article 8 found by the Court and the non‑pecuniary damage caused by the return order, the Court awards the applicants jointly EUR 10,000 in respect of non-pecuniary damage. B. Costs and expenses 108. In respect of costs and expenses, the applicants claimed a total amount of EUR 13,610.69, calculated as follows: EUR 171 for the two psychological examinations of the second applicant, EUR 643 for translations of the documents sent by the Court, EUR 10,500 in legal fees for the first applicant’s representation in the Italian courts, EUR 1,815 for the applicants’ representation before the Court, EUR 371 for family psychotherapy for the applicants and EUR 110.69 for postal expenses. 109. The respondent Government argued that the applicant had not submitted itemised particulars of that claim, as required by Rule 60 § 2 of the Rules of the Court. Furthermore, the applicants had not specified which documents from the Court had needed to be translated. 110. 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 considers it reasonable to award to the applicants jointly the sum of EUR 5,000 covering costs under all heads. C. Default interest 111. 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 1.Dismisses by a majority the respondent Government’s objection of non-exhaustion of domestic remedies; 2. Declares by a majority the complaints concerning the order to return the second applicant to his father in Italy and about the first applicant’s absence from the hearing of the Rome Youth Court admissible; 3. Declares unanimously the remainder of the application inadmissible; 4. Holds by six votes to one that there has been a violation of Article 8 of the Convention on account of the Italian courts’ order for the second applicant to be returned to Italy; 5. Holds unanimously that there has been no violation of Article 8 of the Convention on account of the first applicant’s absence from the hearing of the Rome Youth Court; 6. Holds by six votes to one (a) that the respondent State is to pay the applicants, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts: (i) EUR 10,000 (ten thousand euros) jointly to the applicants, plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 5,000 (five thousand euros) jointly to the applicants, plus any tax that may be chargeable to the applicants, 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; 7. Dismisses unanimously the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 12 July 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithFrançoise TulkensRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Popović is annexed to this judgment. F.T.S.H.N. Dissenting opinion of Judge Popović I find the application to be inadmissible in terms of Article 35 § 1 of the Convention, because, by failing to file a complaint with the Cassation Court, the applicants did not exhaust domestic remedies.

FIRST SECTION CASE OF SCHARSACH AND NEWS VERLAGSGESELLSCHAFT mbH v. AUSTRIA (Application no. 39394/98) JUDGMENT STRASBOURG 13 November 2003 FINAL 13/02/2004 In the case of Scharsach and News Verlagsgesellschaft mbH v. Austria, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrsF. Tulkens,MrsN. Vajić,MrsS. Botoucharova,MrA. Kovler,MrV. Zagrebelsky, judges,MrF. Matscher, ad hoc judge,and Mr S. Nielsen, Deputy Section Registrar, Having deliberated in private on 28 November 2002 and 23 October 2003, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an application (no. 39394/98) against the Republic of Austria lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr Hans-Henning Scharsach (“the first applicant), an Austrian national, and News Verlagsgesellschaft mbH, the owner and publisher of the weekly magazine News which has its head office in Vienna (“the applicant company”), on 24 October 1997. 2. The applicants were represented by Lansky, Ganzger & Partner, a law firm in Vienna. 3. The Austrian Government (“the Government”) were represented by their Agent, Mr H. Winkler, Head of the International Law Department at the Federal Ministry of Foreign Affairs. 4. The applicants alleged, in particular, that their conviction for defamation under the Criminal Code and the Media Act, respectively, had infringed their right to freedom of expression under Article 10 of the Convention. 5. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). 6. The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). 7. On 19 September 2000 the Court communicated the complaint under Article 10 of the Convention to the Government and declared the remainder of the application inadmissible. 8. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed First Section (Rule 52 § 1). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 9. Mrs E. Steiner, the judge elected in respect of Austria, withdrew from sitting in the case (Rule 28). The Government accordingly appointed Mr F. Matscher to sit as ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1). 10. By a decision of 28 November 2002, the Chamber declared the application admissible as far as it concerned the above complaint under Article 10 of the Convention. 11. The applicants and the Government each filed observations on the merits (Rule 59 § 1). The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine), the parties replied in writing to each other's observations. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 12. The first applicant, an Austrian national born in 1943 and living in Vienna, is a journalist by profession. The applicant company is the owner and publisher of the Austrian weekly magazine News. 13. In 1995 the first applicant published a one-page article under the heading “Brown instead of Black and Red?” (Braun statt Schwarz und Rot?) in the applicant company's magazine News. In the Austrian political context, “Brown” means a person or group having some affinity with National Socialist ideology, “Black” refers to the People's Party (ÖVP) and “Red” to the Social Democratic Party (SPÖ). The article discussed the question whether it was possible and desirable to form a coalition government with the Austrian Freedom Party (FPÖ) under the leadership of Jörg Haider. 14. The first applicant explained why, in his view, such a coalition government was not desirable. He gave nine reasons, each of which was dealt with under a separate subheading. Referring to statements by Jörg Haider and other FPÖ members, he broached topics such as the FPÖ's specific view of history, its German jingoism (Deutschtümelei), that is, its chauvinist and nostalgic affinity with Germany, its inclination towards racism, the opinion poll “Austria first” (Österreich zuerst) initiated by it, its political style and the possible negative reaction by foreign countries. 1. The passage in issue “4. Violent Scene [Gewaltszene] Right-wing thugs [Braune Schläger], fire-raisers and bomb-throwers have emerged from the FPÖ. Leading figures of brown terror, such as Burger, Haas, Honsik and Küssel, started their career with the Freedom Party. Under Steger the 'old closet Nazis' [Kellernazi] had left the party. Under Haider they are returning and are even allowed to run for office. Names such as B., Bl., D., Dü., G., Gr., H., Hat., K., M., Mi., Mrs Rosenkranz, S., Sch., St., Su. and W. show that the dissociation [Abgrenzung] from the extreme right that is constantly being stressed by Haider has in reality never taken place.” 15. Mr Steger was Chairman of the FPÖ in the early 1980s, when the party supported more moderate positions. In 1986 Mr Haider became Chairman of the FPÖ. Mrs Rosenkranz is a politician. At the material time, she was a member of the Lower Austria Regional Parliament (Landtag) and the deputy chairperson of the Lower Austria regional branch of the FPÖ; at present, she is a member of the Austrian National Assembly (Nationalrat) and the chairperson of the Lower Austria regional branch of the FPÖ. Her husband is a well-known right-wing politician and the editor of the magazine fakten, which is considered to be extreme right-wing. 2. Defamation proceedings and compensation under the Media Act 16. Mrs Rosenkranz filed a private prosecution for defamation (üble Nachrede) against the first applicant and a compensation claim against the applicant company under the Media Act (Mediengesetz) in the St. Pölten Regional Court (Landesgericht). 17. On 21 June 1998 the first applicant was convicted of defamation under Article 111 of the Criminal Code (Strafgesetzbuch). The court sentenced him to forty day-fines (Tagessätze) of 1,500 Austrian schillings (ATS) each (that is, a total of ATS 60,000) or twenty days' imprisonment in default, suspended for a three-year probationary period. The applicant company was ordered to pay ATS 30,000 in compensation to Mrs Rosenkranz pursuant to section 6 of the Media Act. 18. The court noted in its reasoning that the passage in issue was to be understood in the way it would be perceived by an average reader. The term “closet Nazi” was used to describe a person who supported National Socialist ideas, not in public, but in private through clandestine activities. Belonging to such a circle of persons meant having a contemptible character and behaving in a manner contrary to honour or morality. According to the court, it could not be established that Mrs Rosenkranz was a co-author of her husband's magazine. Even assuming that she had contributed to certain passages of some of the articles published in it, as contended by the applicants, these were unproblematic in terms of the National Socialism Prohibition Act (Verfassungsgesetz vom 8. Mai 1945 über das Verbot der NSDAP, Verbotsgesetz 1947 – “the Prohibition Act”). As regards a statement by Mrs Rosenkranz in which she had said that she did not find her husband's activities immoral, the court found that Mr Rosenkranz had so far not been convicted of contravening the Prohibition Act. On the other hand, Mrs Rosenkranz had not said that she supported her husband's activities or identified herself with them. Moreover, a wife could not be expected to criticise her husband in public. Although she had criticised the National Socialism Prohibition Act in public statements, the court found that the applicants had failed to provide evidence of any clandestine National Socialist activities undertaken by Mrs Rosenkranz that would justify calling her a “closet Nazi”. 19. The applicants appealed, arguing that the term “closet Nazi” had been coined by Mr Steger when he was Chairman of the FPÖ. It was meant to describe those of his party colleagues who, officially, demonstrated support for democracy, but who, unofficially or secretly, did not dissociate themselves from neo-Nazi ideas or from contacts with the neo-Nazi scene. Therefore, their relation to the extreme right appeared to be unclear. The applicants complained that the court had in fact failed to conclude that Mrs Rosenkranz had contributed to the editing of her husband's xenophobic magazine. They argued that Mrs Rosenkranz, as a politician, exposed herself to public scrutiny and advocated views of a political nature. As a politician, it was part of her functions to participate in political debate. Therefore, in the light of the right to freedom of expression and information of citizens and the electorate, it was legitimate to expect her to take a stand also in regard to her husband's political activities. Taking sides with her husband might do her credit as a wife, but, as a politician, she had to bear criticism under such circumstances, as her failure to dissociate herself from the extreme right could be perceived as an approval of her husband's political activities. Had the court correctly assessed the meaning of the incriminated passage, it would have concluded that the applicants had furnished proof of its factual basis. 20. On 3 March 1997 the Vienna Court of Appeal (Oberlandesgericht) dismissed the appeal and upheld the lower court's judgment. 21. It considered that the Regional Court had correctly found that the term “closet Nazi” was to be assessed from the point of view of an average reader, who could not be expected to know the original meaning given to it by Mr Steger some six years previously. Therefore, the article had insinuated clandestine neo-Nazi activities on the part of Mrs Rosenkranz that were not proved. Consequently, it was irrelevant to take evidence relating to possible extreme right-wing activities of her husband, as proposed by the applicants. Moreover, the first-instance court had correctly found that neither Mrs Rosenkranz's public speeches when compared to certain passages of articles in her husband's magazine, nor her statement that she did not find her husband's activities immoral warranted the conclusion that she supported National Socialist ideas. Therefore, the evidence the applicants' proposed to adduce to the effect that Mrs Rosenkranz knew the contents of her husband's magazine and that she in fact contributed from time to time to its editing was not sufficient to furnish proof of her clandestine support for National Socialist ideas. II. RELEVANT DOMESTIC LAW 22. Section 6 of the Media Act provides for the strict liability of the publisher in cases of defamation; the victim can thus claim damages from him. Compensation up to 14,535 euros (EUR) can be awarded. In this context, “defamation” is defined in Article 111 of the Criminal Code as follows: “1. Anyone who accuses another, as it may be perceived by a third party, of having a contemptible character or attitude, or of behaviour contrary to honour or morality, and of such a nature as to make him contemptible or otherwise lower him in public esteem, shall be liable to a term of imprisonment not exceeding six months or a fine not exceeding 360 day-fines. 2. Anyone who commits this offence in a printed document, by broadcasting or otherwise, in such a way as to make the defamation accessible to a broad section of the public, shall be liable to a term of imprisonment not exceeding one year or a fine not exceeding 360 day-fines. 3. The person making the statement shall not be punished if it is proved to be true. As regards the offence defined in paragraph 1, he shall also not be liable if circumstances are established which gave him sufficient reason to assume that the statement was true.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 23. The applicants complained that their convictions for defamation under the Criminal Code and the Media Act respectively had infringed their right to freedom of expression under Article 10 of the Convention, the relevant part of which reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A. Whether there was an interference 24. The Court considers, and this was common ground between the parties, that the applicants' convictions by the Austrian courts constituted an interference with their right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention. B. Whether the interference was justified 25. An interference contravenes Article 10 of the Convention unless it is “prescribed by law”, pursues one or more of the legitimate aims referred to in paragraph 2 and is “necessary in a democratic society” for achieving such an aim or aims. 1. “Prescribed by law” 26. The Court considers, and this was acknowledged by the parties, that the interference was prescribed by law, namely by Article 111 of the Criminal Code and section 6 of the Media Act. 2. Legitimate aim 27. The Court further finds, and this was likewise not disputed between the parties, that the interference served a legitimate aim, namely “the protection of the reputation or rights of others” within the meaning of Article 10 § 2 of the Convention. 3. “Necessary in a democratic society” 28. The applicants argued that the courts had wrongly classified the term in issue as a statement of fact instead of a value judgment, which, at all events, was based on true facts: Mrs Rosenkranz was a member of the FPÖ; through her husband she was in direct contact with neo-Nazis; she had occasionally helped in the correction of orthographic and grammatical mistakes in an extreme-right magazine and – despite Mr Haider's announcements and proclamations on that issue – she had not clearly and publicly dissociated herself from National Socialist ideas. The meaning of the term in issue was clear for an average reader of the magazine, as Mrs Rosenkranz's name was quoted in the context of criticism of the FPÖ for failure to dissociate itself from right-wing extremists. The first applicant's obvious intention had never been to defame Mrs Rosenkranz or to link her with criminal conduct, but to criticise her position within the FPÖ and her failure to dissociate herself in public from neo-Nazi ideas. Therefore the statement was in no way excessive and Mrs Rosenkranz, as a politician and member of a regional parliament, had to bear the criticism contained therein. The first applicant's criminal conviction and the imposition of a fine on the applicant company had in any event been disproportionate. 29. The Government noted that the courts had classified the offending passage as a statement of fact which insinuated clandestine neo-Nazi activities on the part of Mrs Rosenkranz that had not been proved. In Austria, any allegation that a person had an ambiguous relation to National Socialism constituted a very serious reproach coming close to a charge of criminal behaviour under the Prohibition Act, which bans National Socialist activities in various forms and provides for severe terms of imprisonment. Finally, the penalties imposed on the applicants had been within the lowest range of possible punishment; the interference with the rights guaranteed by Article 10 had therefore not been disproportionate. 30. The Court reiterates the principles established by its case-law under Article 10 of the Convention. (i) The press plays an essential role in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see De Haes and Gijsels v. Belgium, judgment of 24 February 1997, Reports of Judgments and Decisions 1997-I, pp. 233-34, § 37). Not only does it have the task of imparting such information and ideas, the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog” (see Thorgeir Thorgeirson v. Iceland, judgment of 25 June 1992, Series A no. 239, p. 27, § 63; Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 62, ECHR 1999-III; and Unabhängige Initiative Informationsvielfalt v. Austria, no. 28525/95, § 37, ECHR 2002-I). (ii) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual's self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. As set forth in Article 10 § 2, this freedom is subject to exceptions, which must, however, be construed strictly and the need for any restrictions must be established convincingly (see Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR 1999-VIII). (iii) There is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on questions of public interest (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999-IV). Moreover, the limits of acceptable criticism are wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his words and deeds by journalists and the public at large, and he must consequently display a greater degree of tolerance (see Lingens v. Austria, judgment of 8 July 1986, Series A no. 103, p. 26, § 42, and Incal v. Turkey, judgment of 9 June 1998, Reports 1998-IV, p. 1567, § 54). (iv) The notion of necessity implies a “pressing social need”. The Contracting States enjoy a margin of appreciation in this respect, but this goes hand in hand with a European supervision which is more or less extensive depending on the circumstances. In reviewing under Article 10 the decisions taken by the national authorities pursuant to their margin of appreciation, the Court must determine, in the light of the case as a whole, whether the interference in issue was “proportionate” to the legitimate aim pursued and whether the reasons adduced by them to justify the interference are “relevant and sufficient” (see Lingens, cited above, pp. 25-26, §§ 39-40; and The Sunday Times v. the United Kingdom (no. 2), judgment of 26 November 1991, Series A no. 217, p. 28-29, § 50). (v) The nature and severity of the penalty imposed are also factors to be taken into account when assessing the proportionality of the interference (see, for example, Ceylan v. Turkey [GC], no. 23556/94, § 37, ECHR 1999-IV; Tammer v. Estonia, no. 41205/98, § 69, ECHR 2001-I; and Perna v. Italy [GC], no. 48898/99, § 39, ECHR 2003-V). 31. Turning to the particular circumstances of the case, the Court will assess the following elements: (a) the nature of the interference; (b) the position of the applicants and that of Mrs Rosenkranz, who instituted the proceedings; (c) the subject matter of the article; and (d) the reasons given by the national courts. (a) The nature of the interference 32. As to the nature of the interference, the Court observes that the first applicant was sentenced to a suspended fine in the amount of ATS 60,000 (EUR 4,360). Even though this fine was in the lower range of possible penalties and was suspended for a three-year probationary period, it was a sentence under criminal law, registered in the first applicant's criminal record. 33. The second applicant was ordered to pay ATS 30,000 (EUR 2,180) as compensation to Mrs Rosenkranz in the related civil proceedings. The Court considers this fine to be moderate. (b) The position of the applicants and of Mrs Rosenkranz 34. As to the position of the applicants, the Court notes that the first applicant is a journalist by profession and the applicant company is the owner of the magazine in which the article was published. Mrs Rosenkranz is a politician. At present, she is the chairperson of the Lower Austria regional branch of the FPÖ and a member of the Austrian National Assembly; at the material time, she was the deputy chairperson of the Lower Austria regional branch of the FPÖ and a member of the Lower Austria Regional Parliament. (c) The subject matter of the article 35. The subject matter of the article was the first applicant's thoughts on a possible coalition government with the FPÖ under the leadership of Mr Haider, expressing the first applicant's view that such a coalition government was not desirable. The article, including the passage in issue, was, therefore, of a political nature on a question of public interest at that time. (d) The reasons given by the national courts 36. As regards the qualification of the impugned statement by the Austrian courts, the Court observes that they did not accept the applicants' argument that the statement in issue was a value judgment, but considered it to be a statement of fact, insinuating clandestine neo-Nazi activities on the part of Mrs Rosenkranz that had not been proved. In the Austrian courts' view, belonging to such a circle of persons meant having a contemptible character and behaving in a manner contrary to honour or morality. The passage in issue had therefore defamed Mrs Rosenkranz. 37. The Court considers that the reasons given by the Austrian courts were “relevant” to justify the interference complained of. It remains to be examined whether the reasons adduced were also “sufficient” within the meaning of Article 10 § 2. 38. The Court observes that the article was written in a political context, namely when a possible coalition government including the FPÖ was being mooted, and that it expressed the first applicant's view that such a coalition government was not desirable. The term “closet Nazi” was used in connection with a passage criticising FPÖ politicians, amongst them Mrs Rosenkranz, for failure to dissociate themselves from the extreme right. Moreover, the Court considers unconvincing the Regional Court's finding that a wife could not be expected to criticise her husband in public, as the statement in the present case clearly addressed Mrs Rosenkranz as a politician and public figure – at the material time, a member of the Lower Austria Regional Parliament and the deputy chairperson of the Lower Austria regional branch of the FPÖ – in respect of whom the limits of acceptable criticism are wider than for a private individual (see Feldek v. Slovakia, no. 29032/95, § 85, ECHR 2001-VIII). The Court thus finds that the Austrian courts failed to take sufficient account of the political context in which the impugned term was used when assessing its meaning. 39. Considering that Mrs Rosenkranz's name in the article in question was mentioned together with other FPÖ politicians in the sentence criticising their failure to dissociate themselves from the extreme right, that is, to take a stand against extreme-right positions, the Court considers that the term “closet Nazi”, which appears in inverted commas in the article, taken in its context, was to be understood in the sense given to it by Mr Steger who had first used this expression in the political debate in his party, namely describing a person who had an ambiguous relation to National Socialist ideas (see paragraph 19 above). 40. Further, the Court observes that much of the parties' arguments revolve around the assessment of whether the term “closet Nazi” was a statement of fact or a value judgment, and that the domestic courts, considering it to be a statement of fact, had never examined the question whether it could be considered as a value judgment. The Court notes in this respect that the assessment of whether a certain statement constitutes a value judgment or a statement of fact might in many cases be difficult. However, since under the Court's case-law a value judgment must be based on sufficient facts in order to constitute a fair comment under Article 10 (see De Haes and Gijsels, cited above, p. 249, § 47, and Jerusalem v. Austria, no. 26958/95, § 43, ECHR 2001-II), their difference finally lies in the degree of factual proof which has to be established (see Krone Verlag GmbH & Co. KG and Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co. KG v. Austria (dec.), no. 42429/98, 20 March 2003). 41. The Court agrees with the domestic courts' finding that there is no indication in the present case that Mrs Rosenkranz herself is a neo-Nazi. However, contrary to the domestic courts' position, the Court considers that the impugned statement, taken in its context, is not a statement of fact but has to be understood as a permissible value judgment. Mrs Rosenkranz is the wife of a well-known right-wing politician, who is the editor of a magazine considered to be extreme right-wing. This element in itself does not constitute a sufficient factual basis. However, Mrs Rosenkranz is also a politician, who has never publicly dissociated herself from her husband's political views but has criticised the Prohibition Act, which bans National Socialist activities, in public statements. In this context, it is to be noted that the essence of the impugned article was exactly the reproach that FPÖ politicians failed to dissociate themselves clearly from the extreme right. Therefore, the body of facts available constituted a sufficient factual basis for the contested statement, understood in the above sense, namely that Mrs Rosenkranz's stand towards extreme right political positions was at the least unclear. The Court considers that the applicants published what may be considered to have been their fair comment, namely the first applicant's personal political analysis of the Austrian political scene. Therefore his opinion was a value judgment on an important matter of public interest. 42. Regarding the Government's argument that, in Austria, any allegation that a person has an ambiguous relation to National Socialism constitutes a very serious reproach coming close to a charge of criminal behaviour under the Prohibition Act, the Court refers to Wabl v. Austria (no. 24773/94, § 41, 21 March 2000), in which it acknowledged that the special connotation of the term “Nazi” in Austria, inter alia, justified the interference under Article 10 § 2 of the Convention. Unlike the position in Wabl, the interference in the present case was not an injunction issued under civil law, prohibiting the repetition of a particular statement, but a criminal conviction for the first applicant and a fine for the applicant company. 43. The Court further considers that use of the term “Nazi” does not automatically justify a conviction for defamation on the ground of the special stigma attached to it. The Court reiterates in this context that the degree of precision for establishing the well-foundedness of a criminal charge by a competent court can hardly be compared to that which ought to be observed by a journalist when expressing his opinion on a matter of public concern, in particular when expressing his opinion in the form of a value judgment (see Unabhängige Initiative Informationsvielfalt, cited above, § 46). Therefore, the Court is not convinced by the Regional Court's reasoning, in response to Mrs Rosenkranz's statement that she saw nothing immoral in her husband's political activities, to the effect that Mr Rosenkranz had so far not been convicted of contravening the Prohibition Act. The standards applied when assessing someone's political activities in terms of morality are different from those required for establishing an offence under criminal law. 44. Moreover, the Court observes that in Wabl the term “Nazi” was used without any connection to the underlying debate, while in the present case it was used precisely in the context of the allegation that certain politicians of the FPÖ had failed to dissociate themselves from the extreme right. 45. Considering, on the one hand, that Mrs Rosenkranz is a politician and, on the other, the role of a journalist and the press of imparting information and ideas on matters of public interest, even those that may offend, shock or disturb, the use of the term “closet Nazi” did not exceed what may be considered acceptable in the circumstances of the present case. 46. In conclusion, the Court finds that the standards applied by the Austrian courts were not compatible with the principles embodied in Article 10 and that they did not adduce “sufficient” reasons to justify the interference in issue, namely the first applicant's conviction for defamation and the imposition of a fine on the applicant company for having published the critical statement in question. Therefore, having regard to the fact that there is little scope under Article 10 § 2 of the Convention for restrictions on debate on questions of public interest, the Court finds that the domestic courts overstepped the narrow margin of appreciation afforded to member States, and that the interference was disproportionate to the aim pursued and was thus not “necessary in a democratic society”. Accordingly, there has been a violation of Article 10 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 47. 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 48. The first applicant claimed 386.50 euros (EUR) in respect of pecuniary damage for ten hours' loss of earnings resulting from attending court hearings and consultations with his lawyer. The applicants sought EUR 3,417.38, corresponding to costs awarded to Mrs Rosenkranz by the Austrian courts. Under the head of pecuniary damage, the applicant company requested reimbursement of the 30,000 Austrian schillings (EUR 2,180.19) paid to Mrs Rosenkranz by virtue of the court sentence, and of EUR 7,049.26 for loss of advertising income resulting from the publication of the judgment in its newspaper. The applicants sought EUR 10,000 each in respect of non-pecuniary damage for loss of reputation resulting from the judgment against them. 49. As regards the claims for pecuniary damage, the Government argued that the first applicant's claim was unsubstantiated; they did not comment on the applicant company's requests or the applicants' claim for reimbursement of Mrs Rosenkranz's costs in the domestic proceedings. In respect of non-pecuniary damage, the Government submitted that the finding of a violation would constitute sufficient reparation. 50. The Court considers, as regards the first applicant's claim for pecuniary damage, that there is no causal link between the violation found and the alleged loss of earnings. Even if the Austrian courts had not convicted him, his preparation for and attendance at the court hearings would have been necessary. Therefore, no award can be made under that head to the first applicant. Having regard to the direct link between the applicants' claim concerning reimbursement of Mrs Rosenkranz's costs in the domestic proceedings and the violation of Article 10 found by the Court, the applicants are entitled to recover the full amount of EUR 3,417.38. As regards the applicant company, the Court finds that the claims resulted from the order made against it by the Austrian courts and thus awards the full amount of EUR 9,229.45 in respect of pecuniary damage. 51. The Court considers that the first applicant's conviction entered in the criminal record entailed adverse effects and awards him, on an equitable basis, EUR 5,000 under the head of non-pecuniary damage (see mutatis mutandis, Nikula v. Finland, no. 31611/96, § 65, ECHR 2002-II). As regards the applicant company, the Court finds, like the Government, that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained. B. Costs and expenses 52. The applicants sought reimbursement of EUR 3,417.40 for costs and expenses incurred in the domestic proceedings. They further requested EUR 3,007.54 for costs and expenses incurred in the Strasbourg proceedings. 53. The Government did not comment on the costs claim for the domestic proceedings. As regards the claim concerning the Convention proceedings, they considered that the amounts charged for written submissions to the Court were reasonable, whereas the claims for telephone calls and correspondence were unsubstantiated. 54. The Court finds the above claims reasonable and awards the full amount of EUR 6,424.94 under this head. C. Default interest 55. 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 1. Holds, by six votes to one, that there has been a violation of Article 10 of the Convention; 2. Holds, unanimously, that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant company; 3. Holds (a) unanimously, that the respondent State is to pay the applicants: (i) EUR 12,646.83 (twelve thousand six hundred and forty-six euros eighty-three cents) in respect of pecuniary damage; (ii) EUR 6,424.94 (six thousand four hundred and twenty-four euros ninety-four cents) in respect of costs and expenses; (b) by six votes to one, that the respondent State is to pay the first applicant EUR 5,000 (five thousand euros) in respect of non-pecuniary damage; (c) unanimously, that the respondent State is to pay the applicants any tax that may be chargeable on the above amounts; 4. Holds, unanimously, that the above amounts are to be paid within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, and 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 unanimously the remainder of the applicants' claim for just satisfaction. Done in English, and notified in writing on 13 November 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos Rozakis Deputy RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the partly dissenting opinion of Mr Matscher is annexed to this judgment. C.L.R. S.N. PARTLY DISSENTING OPINION OF JUDGE MATSCHER To my regret, I cannot subscribe to the reasoning or to the decision of the majority of the Chamber on two points. The merits The applicants were not able to adduce the slightest evidence that Mrs Rosenkranz's behaviour or statements justified her description as a “closet Nazi” or that she had secretly supported Nazi ideas. The mere fact that Mrs Rosenkranz is married to a (locally) known right-wing politician and had refused to dissociate herself in public from her husband's ideas does not show that she identified herself with those ideas. People cannot be held liable for the ideas of a member of their family (see, mutatis mutandis, De Haes and Gijsels v. Belgium, judgment of 24 February 1997, Reports of Judgments and Decisions 1997-I, p. 236, § 45: “It is unacceptable that someone should be exposed to opprobrium because of matters concerning a member of his family.”). Under these circumstances, the allegation that Mrs Rosenkranz had an ambiguous relation to National Socialism constituted a very serious reproach in Austria, which justified a criminal conviction and, therefore, an interference under Article 10 § 2 of the Convention (see Wabl v. Austria, no. 24773/94, § 41, 21 March 2000). Moreover, the applicants' argument that the term “closet Nazi” had to be understood in the special meaning given to it by Mr Steger is not convincing. Mr Steger, a former leader of the Austrian Freedom Party (FPÖ) coined the expression in the early 1980s. The impugned article was published in 1995. At that time virtually no one remembered the special sense given to the term “closet Nazi” by Mr Steger about ten years earlier, and the vast majority of the population understood it in its ordinary meaning, as a person supporting Nazi ideas and perhaps acting secretly for the Nazi movement. The decision on the alleged non-pecuniary damage It is not realistic to consider that the first applicant's criminal conviction caused him, as a journalist, particular damage; rather, the contrary is more plausible. The reference to Nikula v. Finland (no. 31611/96, § 65, ECHR 2002-II) is irrelevant because the situation in that case was very different. It is for this reason that in comparable Austrian cases (such as Oberschlick v. Austria, judgment of 23 May 1991, Series A no. 204, p. 29, § 69, and Schwabe v. Austria, judgment of 28 August 1992, Series A no. 242-B, p. 35, § 39) no award was made for non-pecuniary damage. I see no reason to depart from that jurisprudence.

FOURTH SECTION CASE OF KRUMPEL AND KRUMPELOVÁ v. SLOVAKIA (Application no. 56195/00) JUDGMENT STRASBOURG 5 July 2005 FINAL 05/10/2005 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 Krumpel and Krumpelová v. Slovakia, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrJ. Casadevall,MrM. Pellonpää,MrR. Maruste,MrS. Pavlovschi,MrJ. Borrego Borrego,MrJ. Šikuta, judges, and Mr M. O’Boyle, Section Registrar, Having deliberated in private on 14 June 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 56195/00) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Slovakian nationals, Mr Ondrej Krumpel and Mrs Anna Krumpelová (“the applicants”), on 17 January 2000. 2. The Slovakian Government (“the Government”) were represented by their Agent, Mr P. Kresák, succeeded by Mrs A. Poláčková. 3. On 19 July 2004 the Court decided to communicate the application. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time. THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicants are spouses. They were born in 1935 and 1938 respectively and live in Bratislava. I. THE CIRCUMSTANCES OF THE CASE 5. In 1990 the applicants concluded a contract with M., the owner of a building company. M. undertook to sell a plot of land to the applicants and to build a family house for them. The applicants paid 600,000 Slovakian korunas (SKK) to M. 6. M. failed to comply with the contract. The applicants therefore revoked it on 28 January 1991. 7. On 5 February 1991 the applicants sued the company of M. before the Považská Bystrica District Court. On 26 April 1991 the court discontinued the proceedings as the applicants had not paid the court fee. 8. In 1991 criminal proceedings were brought against M. as he was suspected of fraud. The applicants declared that they wished to claim damages from M. in the context of the criminal proceedings. 9. On 18 August 1991 the applicants sued M. for damages before the Považská Bystrica District Court. On 16 March 1992 the District Court discontinued the proceedings. The decision stated, with reference to Article 83 of the Code of Civil Procedure, that the applicants had also claimed damages in the context of the criminal proceedings against M. and that those criminal proceedings were pending. On 25 May 1992 an appellate court dismissed the applicants’ appeal. 10. In the meantime, on 23 October 1991, a public prosecutor froze property of M.’s company, the value of which corresponded to SKK 2,185,000, with a view to securing the claims of 21 aggrieved persons. 11. On 28 December 1992 M.’s mother returned SKK 50,000 to the applicants. In a written statement of 10 February 1995 M. admitted his debt in respect of the applicants. 12. In 1996 the charges against M. were enlarged to comprise economic offences which had no bearing on the applicants’ claim and which the accused had allegedly committed in the context of the dissolution of the former Czech and Slovak Federal Republic. 13. Following the enlargement of the charges against M. his bank account was blocked in the context of the criminal proceedings. The Government submitted that the sum blocked amounted to SKK 8,885,006. The applicants submitted, with reference to an article published in a weekly, that the Bratislava Regional Prosecutor had given his consent, in 1997, to unblock the account in which approximately SKK 64 millions had been deposited. The article further states that most of the money had subsequently been transferred abroad. In another article published in the same weekly the General Prosecutor confirmed that he had intended to start disciplinary proceedings against the Regional Prosecutor in that regard. However, the prosecutor had resigned from his post. 14. On 11 February 1998 the Bratislava Regional Prosecutor indicted M. before the Bratislava Regional Court. On 21 June 1999 the Regional Court returned the case to the public prosecutor for further investigation. 15. On 14 September 2001, the applicants made a written submission to the Bratislava Regional Court which was dealing with the criminal charges against M. The Regional Court interpreted the submission as a civil claim for damages and transferred it to the Považská Bystrica District Court. 16. A new indictment against M. was filed with the Bratislava Regional Court on 3 December 2001. The indictment concerned numerous offences and, in addition to M., two other persons. 17. On 28 February 2002 the criminal judge decided to deal separately with several aspects of the case, including those which were relevant for the determination of the applicants’ claim. 18. On 13 August 2003 a Považská Bystrica District Court judge informed the applicants, in reaction to their above submission of 14 September 2001, that criminal proceedings against M. were still pending and that Article 83 of the Code of Civil Procedure prevented the court from dealing with a civil action for damages in the same case. The applicants were invited to inform the court whether they maintained their action and were instructed how to rectify formal shortcoming in their submission. 19. In a letter of 5 September 2003 the applicants replied that their above letter of 14 September 2001 had been meant for the judges dealing with the charges against M. and that they were aware that they could not have separate civil proceedings for damages brought against M. as the criminal proceedings against him were still pending. 20. In the meantime, on 14 March 2003, the applicants complained to the Constitutional Court about a violation of their right to a hearing without unjustified delay. 21. On 19 September 2003 the Považská Bystrica District Court judge informed the Constitutional Court about the contents of her above letter to the applicants of 13 August 2003. No reference was made to the applicants’ reply of 5 September 2003. 22. On 25 September 2003 the Constitutional Court dismissed the complaint as being manifestly ill-founded. The decision states: “It follows from ... the submission of the District Court that, at present, proceedings are pending before it upon the initiative of the [applicants]... The subject-matter of those proceedings is the claim for damages against [M.] which the applicants have also submitted in the context of the criminal proceedings before the Regional Court. The applicants therefore have, provided that they overcome the obstacle of litis pendens and bring their [civil] action in compliance with the formal requirements as instructed by the District Court, a different effective remedy at their disposal in the context of proceedings before a civil court... In the Constitutional Court’s view, an action for damages is an effective remedy in respect of [the applicants], as a [civil] claim for compensation by persons who have suffered damage may form the basis of their own case in respect of which (unlike persons who join criminal proceedings with a claim for damages) they enjoy the guarantee of ... a hearing without undue delay... It follows that the alleged failure of the Regional Court to proceed with [the criminal case against M.] speedily can have no bearing on the applicants’ constitutional right to a hearing without undue delay... In the circumstances, it is the applicants’ claim for damages which is to be considered as their case; determination of such a claim is not the purpose of the criminal proceedings and, in addition, the applicants can claim damages before a civil court provided that they comply with the statutory requirements...” 23. On 24 November 2004 the Bratislava Regional Court convicted M. in proceedings concerning the charges which were not related to the applicants’ claim. M. was sentenced to 10 years’ imprisonment and the court ordered him to compensate SKK 58 million to the Ministry of Finance. The convicted persons appealed and the proceedings are pending before the Supreme Court. 24. The Bratislava Regional Court is expected to start determining the remaining charges against M. (which concern fraud in respect of more than 20 individuals including the applicants) in the course of 2005. II. RELEVANT DOMESTIC LAW AND PRACTICE 1. The Code of Criminal Procedure 25. Article 43(1) and (2) provides, inter alia, that a person who has suffered damage, as a result of a criminal offence, can claim compensation from the accused person and request that the court, in a judgment convicting the accused person, order the latter to compensate for such damage. 26. In criminal cases falling within the jurisdiction of regional courts, the court decides, according to the nature of the matter under consideration, whether or not an injured person should be allowed to participate in the proceedings (Article 44(2)). Such decision is taken, as a rule, at the main hearing. In accordance with the Supreme Court’s case-law, an injured party may be prevented from participating in the proceedings for important reasons only, for example where it is required for protection of a State secret. 27. Article 47(1) provides that a claim for damages may be secured, up to an amount corresponding to the estimated damage, on the property of the accused where a justified fear exists that compensation for damage caused as a result of an offence will be jeopardised or rendered difficult. 28. Pursuant to Article 228(1), where a court convicts the accused person of an offence as a result of which damage to third persons was caused, it shall, as a rule, order the convicted person to compensate for such damage, provided that the relevant claim was filed in time. 29. Under Article 229(1), a criminal court shall refer a person claiming damages to a civil court where the evidence available is not sufficient for determining that claim or where the taking of further evidence exceeding the scope of the criminal case is required and the criminal proceedings would be thereby unduly prolonged. 2. The Code of Civil Procedure 30. Article 83 of the Code of Civil Procedure provides that, once proceedings have been brought, no other judicial proceedings can be instituted in the same matter. 31. In accordance with the Supreme Court’s practice under this provision, the filing of a claim for damages in the context of criminal proceedings is to be considered as the bringing of proceedings, within the meaning of the relevant provisions of the Code of Civil Procedure, and it constitutes an obstacle of litis pendens where a civil action is filed after the corresponding claim has been submitted in the context of criminal proceedings (Collection of Supreme Court’s Decisions and Opinions, 22/1979, p. 192). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 32. The applicants complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, provided in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 33. The Government contended that the application was inadmissible. 34. The period to be taken into consideration began only on 18 March 1992, when the recognition by the former Czech and Slovak Federal Republic, to which Slovakia is one of the successor States, of the right of individual petition took effect. However, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings at the time. The period in question has not yet ended. It has thus lasted 13 years and more than 2 months for the preliminary stage and one level of jurisdiction. A. Admissibility 35. The Government first contended that the guarantees of Article 6 § 1 of the Convention did not apply to the present case. They referred to the Court’s finding in the case of Perez (see Perez v. France [GC], no. 47287/99, ECHR 2004-...) in which the Court had established certain principles as regards the applicability of Article 6 § 1 of the Convention in relation to civil-party complaints filed during a criminal investigation in France. They argued that the position under Slovakian law was different. 36. In particular, the Government contended that injured persons claiming damages in the context of criminal proceedings in Slovakia did not automatically become parties to the proceedings. In cases similar to the present one, Article 44(2) of the Code of Criminal Procedure reserves to the regional court dealing with the case the right to decide on the participation of an injured party in criminal proceedings before it. The Government considered that the outcome of the criminal proceedings was not directly decisive for the determination of the applicants’ civil rights and obligations within the meaning of Article 6 § 1 of the Convention. 37. In addition, the Government argued that the applicants had not exhausted domestic remedies as they had not sought compensation from the individual concerned by means of a civil action. Since the debtor had recognised his debt in respect of the applicants, a civil court dealing with the case would have been in a position to deliver a summary payment order on the applicants’ claim in an accelerated procedure, thereby ensuring an effective and speedy protection of the applicants’ right in issue. 38. The applicants disagreed with the Government’s arguments. They submitted that they had a preference for claiming damages in the context of the above criminal proceedings as (i) they had considered that their claim could be satisfied by bank interest paid on the money from the blocked account of M. and (ii) they would be liable to pay high court fees in the context of civil proceedings. 39. The Court notes that under Slovakian law, as interpreted and applied by domestic courts, the filing of a claim for damages in the context of criminal proceedings is to be considered as the introduction of proceedings, within the meaning of the relevant provisions of the Code of Civil Procedure, and it prevents the person concerned from submitting the same claim to a civil court in parallel. This alone suffices to conclude that the civil claim of an injured person which is to be determined in the context of criminal proceedings comes within the scope of Article 6 § 1 of the Convention. 40. The fact that in certain circumstances the criminal courts are entitled to decide, according to the nature of the matter under consideration, whether or not an injured person should be allowed to participate in the criminal proceedings, or that they may refer a person claiming damages to a civil court where, for example, the evidence available is not sufficient for determining that claim, cannot affect this position. Until such a decision has been given, injured persons claiming damages in the context of criminal proceedings are entitled to benefit from the guarantees of Article 6 § 1 of the Convention as such proceedings are decisive for the determination of their “civil rights”. 41. As the applicants’ claim for damages is still a component of the pending criminal proceedings against M., the Government’s argument that their application is incompatible ratione materiae with the provisions of the Convention cannot be upheld. 42. The Government further objected that the applicants did not exhaust domestic remedies as they had not claimed the sum in question before a civil court. 43. The Court held earlier that, where there is a choice of remedies open to an applicant, the requirement of exhaustion of domestic remedies laid down in Article 35 § 1 of the Convention must be applied to reflect the practical realities of the applicant’s position in order to ensure the effective protection of the rights and freedoms guaranteed by the Convention (see Hilal v. the United Kingdom (dec.), no. 45276/99, 8 February 2000, with further references). 44. The Slovakian law has given the applicants the possibility of claiming the sum in question in two different ways. The applicants were aware of this as they first filed a civil claim for damages. The proceedings were discontinued, on 26 April 1991, as they had not paid the court fee. Subsequently the applicants filed their claim in the context of criminal proceedings brought against the individual concerned. Unless they withdraw that claim, the applicants are unable to re-submit it validly to a civil court. 45. The position in the present case is specific. On the one hand, the criminal proceedings in question have concerned several charges and accused persons as well as a considerable number of victims. Given the scope and complexity of the case, the applicants must have been aware that certain time was required before the courts could decide on the claim, such a decision being subject to the prior determination of the criminal charges against the debtor. Furthermore, the charges against the individual concerned were substantially enlarged in 1996, and the criminal court later decided to first determine the charges which were unrelated to the applicants’ claim. 46. On the other hand, the situation has been rather clear under civil law: the debtor explicitly acknowledged his debt in respect of the applicants. Thus a civil court called upon to determine the applicants’ claim for the sum in question could, in principle, do so speedily, possibly by issuing a summary payment order as argued by the Government. 47. However, on the basis of the documents before it, the Court accepts the applicants’ argument that they had decided to pursue their claim in the context of criminal proceedings as they believed that they had a better prospect of actually recovering the sum in question. In fact, at the initial stage of the criminal proceedings a public prosecutor had frozen the property of the accused with a view to securing the claims of the injured persons. In this respect the Court recalls that the Convention is intended to guarantee rights that are not theoretical or illusory, but rights that are practical and effective (Matthews v. the United Kingdom [GC], no. 24833/94, § 34, ECHR 1999‑I). 48. Thus the applicants’ preference for claiming damages in the context of criminal proceedings against the debtor was not unjustified in the particular circumstances of the case. Once the applicants opted for this remedy, they were entitled to have their claim determined within a reasonable time. They were not required to try, for the purpose of Article 35 § 1 of the Convention, the other remedy available under Slovakian law. The Government’s objection must therefore be dismissed. 49. The Court further notes that the application 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 50. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 51. The Court notes that the length of the criminal proceedings in the context of which the applicants’ claim is to be determined has been partly due to the complexity of the case resulting from both the scope of offences imputed to the accused and the number of injured persons. However, this alone does not account for the overall length of the proceedings. There is no indication that the applicants by their conduct contributed to the length of the proceedings. Having examined all the material submitted to it and having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 52. 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 53. The applicants claimed 1,783,500 Slovakian korunas[1] (SKK) in respect of pecuniary damage and SKK 500,000[2] in respect of non-pecuniary damage. 54. The Government contested these claims. 55. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. The Court considers that the applicants must have sustained non-pecuniary damage. Ruling on an equitable basis and having regard to the fact that the length of the proceedings in issue has been partly due to their complexity, it awards them EUR 10,000 under that head. B. Costs and expenses 56. The applicants also claimed SKK 1,700[3] for the lawyer’s fees relating to the filing of their claim for damages with the Považská Bystrica District Court in 1991. 57. The Government contested the claim. 58. According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court rejects the claim for costs and expenses. C. Default interest 59. 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 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 10,000 (ten thousand euros) in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 5 July 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Michael O’BoyleNicolas Bratza RegistrarPresident [1] The equivalent of approximately 45,900 euros. [2] The equivalent of approximately 12,900 euros. [3] The equivalent of approximately 45 euros.

THIRD SECTION CASE OF MAZNEV AND OTHERS v. RUSSIA (Application no. 48826/08 and 5 others - see appended list) JUDGMENT STRASBOURG 22 June 2017 This judgment is final but it may be subject to editorial revision. In the case of Maznev and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Luis López Guerra, President,Dmitry Dedov,Jolien Schukking, judges,and Karen Reid, Section Registrar, Having deliberated in private on 1 June 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2. The applications were communicated to the Russian Government (“the Government”). THE FACTS 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention. THE LAW I. JOINDER OF THE APPLICATIONS 5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. THE GOVERNMENT’S REQUEST TO STRIKE OUT SOME APPLICATIONS UNDER ARTICLE 37 § 1 OF THE CONVENTION 6. The Government submitted unilateral declaration in some applications which did not offer a sufficient basis for finding that respect for human rights as defined in the Convention does not require the Court to continue its examination of the case (Article 37 § 1 in fine). The Court rejects the Government’s request to strike the applications out and will accordingly pursue its examination of the cases (see Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, § 75, ECHR 2003‑VI). III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 7. The applicants complained principally of the inadequate conditions of their detention. They relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 8. The Court notes that the applicants were kept in detention in poor conditions. The details of the applicants’ detention are indicated in the appended table. The Court refers to the principles established in its case‑law regarding inadequate conditions of detention (see, for instance, Muršić v. Croatia [GC], no. 7334/13, §§ 96‑101, ECHR 2016). It reiterates in particular that a serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purpose of establishing whether the detention conditions described are “degrading” from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see Muršić, cited above, §§ 122‑41, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 149‑59, 10 January 2012). 9. In the leading cases of Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, 10 January 2012 and Butko v. Russia, no. 32036/10, §§ 54‑64, 12 November 2015, the Court already found a violation in respect of issues similar to those in the present case. 10. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the applicants’ conditions of detention were inadequate. 11. These complaints are therefore admissible and disclose a breach of Article 3 of the Convention. IV. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 12. Some applicants submitted other complaints which also raised issues under the Convention, in accordance with the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Idalov v. Russia [GC] (no. 5826/03, §§ 139‑49, 22 May 2012, concerning the reasons for and length of the pretrial detention), Khodorkovskiy v. Russia (no. 5829/04, §§ 203-248, 31 May 2012, regarding the lack of speediness and procedural safeguards in the review of detention matters) and Ananyev and Others v. Russia (nos. 42525/07 and 60800/08, §§ 100-19, 10 January 2012 pertaining to the absence of an effective remedy to complain about the conditions of detention in Russia). V. REMAINING COMPLAINT 13. In application no. 48826/08, the applicant also raised a complaint under Article 3 of the Convention concerning the alleged ill-treatment by prison wards in IK-7 on 4 July 2007. 14. The Court has examined the application and considers that, in the light of all the material in its possession and in so far as the matter complained of is within its competence, this complaint either does not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or does not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention. VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 15. 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.” 16. Regard being had to the documents in its possession and to its case‑law (see, in particular, Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, 10 January 2012 and Butko v. Russia, no. 32036/10, § 68, 12 November 2015), the Court considers it reasonable to award the sums indicated in the appended table. 17. 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 complaints concerning the inadequate conditions of detention and the other complaints under well-established case-law of the Court, as set out in the appended table, admissible, and the remainder of the application no. 48826/08 inadmissible; 3. Holds that these complaints disclose a breach of Article 3 of the Convention concerning the inadequate conditions of detention; 4. Holds that there has been a violation as regards the other complaints raised under well-established case-law of the Court (see appended table); 5. Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State 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. Done in English, and notified in writing on 22 June 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Karen ReidLuis López GuerraRegistrarPresident APPENDIX List of applications raising complaints under Article 3 of the Convention (inadequate conditions of detention) No. Application no.Date of introduction Applicant name Date of birth Representative name and location Facility Start and end date Duration Inmates per brigade / Sq. m. per inmate / number of toilets Specific grievances Other complaints under well-established case-law Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros)[1] 48826/08 06/08/2008 Eduard Valentinovich Maznev 23/02/1977 Misakyan Mariya Gennadyevna Moscow IVS Kovrov Vladimir Region, IZ-33/1 Vladimir 04/09/2007 to 24/02/2011 3 year(s) and 5 month(s) and 21 day(s) 20 inmate(s) 1.8 m² lack of or insufficient natural light, lack of fresh air, poor quality of food, lack of privacy for toilet, lack of or insufficient physical exercise in fresh air, lack of or poor quality of bedding and bed linen, infestation of cell with insects/rodents, inadequate temperature 12,500 54526/10 30/06/2010 Viktor Valentinovich Novikov 04/09/1961 IZ-66/1 Yekaterinburg 13/04/2013 to 28/04/2013 16 day(s) 0.7 m² no individual sleeping place – had to share one with inmates, dim electric light, lack of ventilation, the air heavy with cigarette smoke, inadequate condition of bedding and bed linen Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention - 1,000 43512/13 28/05/2013 Roman Aleksandrovich Ledenev 19/08/1984 IVS Gryazi 28/08/2012 to 16/04/2013 7 month(s) and 20 day(s) 0 toilet(s) overcrowding, no toilet, no water, no walks, torn and dirty bedding, infestation with lice, dim electric light, no ventilation and fresh air Art. 5 (3) - excessive length of pre-trial detention - , Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention - 6,400 51512/13 08/05/2013 Oleg Valeryevich Shirokov 27/03/1981 IVS Krasnoturyinsk Sverdlovsk Region 15/10/2009 to 15/05/2012 2 year(s) and 7 month(s) and 1 day(s) IZ-66/1 Yekaterinburg 15/03/2010 to 15/03/2013 3 year(s) and 1 day(s) IZ-66/3 Nizhniy Tagil 15/03/2010 to 15/03/2013 3 year(s) and 1 day(s) 2 m² 1 m² 1 m² poor condition of bedding and bed linen, lack of fresh air and ventilation, the air heavy with cigarette smoke, lack of natural light, dim electric light, squat toilet not separated from living area, dinner table and sleeping place located close to toilet (1-1.5 m.), no toiletries, food twice a day, poor food quality, no shower until 2010, lack of hot water in shower, poor quality of water (from heating pipes) and no light in shower, no tableware, no walks prior to April 2012, walks twice a week as of April 2012, inmates infected with HIV, hepatitis and tuberculosis not provided with an individual sleeping place and had to sleep on the floor, dim electric light on 24/7, lack of natural light, inmates infected with hepatitis and HIV, lack of fresh air and ventilation not provided with an individual sleeping place and had to sleep on the floor, dim electric light on 24/7, lack of natural light, inmates infected with hepatitis and HIV, lack of fresh air and ventilation Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention - 25,000 58203/13 27/08/2013 Yevgeniy Aleksandrovich Cherepakhin 13/02/1980 Korobov Pavel Anatolyevich Yekaterinburg IVS Rostov-on-Don 22/12/2011 to 25/12/2011 4 day(s) IZ-61/3 Novocherkassk 26/12/2011 to 11/02/2014 2 year(s) and 1 month(s) and 17 day(s) 4 m² 1 toilet(s) 1.5 m² 1 toilet(s) lack of (sufficient) natural light, toilet not separated from the rest of the cell lack of (sufficient) natural light, toilet not separated from the rest of the cell, insufficient number of beds in the cell, lack of fresh air, poor quality of food, lack of (regular) physical exercise on fresh air, lack of requisite medical assistance Art. 5 (3) - excessive length of pre-trial detention - 11,100 68362/14 16/02/2015 Aleksey Gennadyevich Kudryavtsev 01/12/1961 IZ-47/1 St Petersburg 22/05/2013 pending More than 3 year(s) and 11 month(s) and 5 day(s) 1.6 m² no hot water, cold cells, no sitting places, toilet not separated from living area, dinner table located in 1.5 m. from toilet, no ventilation, cement floor, walls and ceiling covered with fungus, the air heavy with cigarette smoke, inmates infected with hepatitis and HIV, daily walk for 1 hour, weekly shower for 15 min., unsanitary conditions in shower Art. 5 (3) - excessive length of pre-trial detention - , Art. 5 (4) - excessive length of judicial review of detention - , Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention - 18,200 [1]. Plus any tax that may be chargeable to the applicants.

FOURTH SECTION CASE OF K.C. v. ROMANIA (Application no. 45060/10) JUDGMENT STRASBOURG 30 October 2018 This judgment is final but it may be subject to editorial revision. In the case of K.C. v. Romania, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: Paulo Pinto de Albuquerque, President,Egidijus Kūris,Iulia Antoanella Motoc, judges,and Andrea Tamietti, Deputy Section Registrar, Having deliberated in private on 9 October 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 45060/10) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a United States national, Mr K.C. (“the applicant”), on 19 July 2010. The President of the Section acceded to the applicant’s request not to have his name disclosed (Rule 47 § 4 of the Rules of Court). 2. The applicant was represented by Mr S. Chopra, a lawyer based in Belgium. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar of the Ministry of Foreign Affairs. 3. On 17 November 2014 the complaints concerning the applicant’s right to the assistance of a lawyer and an interpreter during his initial questioning by the police were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1987 and lives in Belgium. At the time of the events, he was studying at a university in Constanţa, where he had been since October 2006. A. Criminal investigation 5. On 3 April 2008 the Directorate for Investigating Organised Crime and Terrorism (DIICOT) attached to the Tulcea County prosecutor’s office opened a criminal investigation against O.D.A., a student at the same university as the applicant, on suspicion of drug trafficking. 6. At around 1.30 p.m. on 18 April 2008 O.D.A. was caught trying to send by bus a package containing twelve LSD tabs in an undercover operation set up by DIICOT. The drugs were destined to reach an undercover agent who had previously contacted O.D.A. asking to buy drugs from him. O.D.A. was immediately taken to the Tulcea County police station, where he gave a written statement saying that he had “had” the drugs from the applicant. He also said in his statement that he had been informed that he was entitled to a lawyer but had waived this right. 7. On the same date the case prosecutor submitted to the Tulcea County Court a request to search the residences of O.D.A. and the applicant. In the request the prosecutor stated that, by a decision issued on 18 April 2008, the criminal investigation opened against O.D.A. had been extended to the applicant on suspicion of drug trafficking. The search was authorized by a judge. 8. During the search, which took place on the evening of 18 April 2008, 4.12 grams of cannabis and fifty-one LSD tabs were found in the applicant’s room. After the search, at around 10 p.m., the applicant was first taken to hospital for a toxicology test and then to the Tulcea County police station (in the city of Tulcea, 125 km from Constanţa), where a police officer asked him to give a statement. 9. The applicant handwrote a statement (in English) in which he explained as follows: “... my brother and I travel frequently ... to Belgium.... While in [Belgium], my brother and I travelled to the Netherlands numerous times to smoke THC ... The first and only time that I brought drugs into Romania was 2 months ago. I bought these drugs from a friend of a friend of mine ... He offered me a deal from someone he knew. I gave my friend the money, 450 euros, and he returned a day later with 200 grams of hashish and 60 LSD which was meant as a gift... After smoking about 40 grams of it, my brother and I wrapped the hashish and LSD in a black plastic bag and put it in a pocket of some trousers and packed it in a suitcase amongst other clothes. ...” He further stated that since he did not use LSD and had needed money he had decided to sell nine LSD tabs to O.D.A. Lastly, he said that he had never sold any drugs before, that he was not a drug trafficker and that he was sorry for his actions, which he would never repeat. At the upper bottom of the front page the statement was signed and dated 18 April 2008 by a police officer. Besides the applicant’s signature, the statement bore an additional signature which resembled that of the lawyer appointed on his behalf and, at the foot of the page, the date of 19 April 2008. 10. The applicant was then taken to the headquarters of DIICOT where, at 2.15 p.m. on 19 April 2008, the prosecutor informed him of the accusations against him, namely unlawful possession of, importing and trafficking drugs. At the same time the applicant was informed of his right to an interpreter and a lawyer of his own choosing and to remain silent. Then the accusations were read to him in the presence of a lawyer and an English language interpreter – both appointed on his behalf by the authorities – who also assisted him during his subsequent questioning by the prosecutor. All the above information were included in a minutes drafted on 19 April 2008 at 14:15 p.m. and signed by the prosecutor, the applicant as well as by his appointed lawyer and interpreter. After the applicant’s initial statement given to the police had been translated into Romanian by the interpreter, the prosecutor took a new statement from him. In this statement, which was in Romanian and signed by the applicant, the lawyer, the interpreter and the prosecutor, the applicant reiterated the previous statement given to the police (see paragraph 9 above) but this time stated that he had not known about the LSD in his luggage until he had unpacked at the dormitory. The applicant also said: “I have no complaints against the police authorities or the prosecutor”. After the charges were formally brought against him, at 3.45 p.m. in the presence of the lawyer and the interpreter, the applicant said that he “maintained his previous statements”. 11. The same day a request by the prosecutor to remand the applicant and O.D.A. in custody was rejected by the Tulcea County Court because the two men did not have a criminal record, were students and had been willingly cooperating with the investigative authorities. Later that evening the applicant was allowed to leave the prosecutor’s office. 12. On 3 June 2008 the applicant and O.D.A were sent to trial for unlawful possession of, importing and trafficking drugs. B. Court proceedings 13. The Tulcea County Court considered the criminal case between September and October 2008. 14. The applicant, who was assisted by two lawyers of his choice and did not contest the charges brought against him, raised numerous complaints before the court regarding procedural irregularities during the investigation. He stated, among other things, that after the search on the evening of 18 April 2008, he had been detained by the police from 10 p.m. until the next day, when the prosecutor’s request to remand him in custody had been rejected by the court. He argued that his initial statement given to the police during his detention (see paragraph 9 above) should not be taken into consideration because it had been taken in the absence of a lawyer and an interpreter and, as a result, he had not understood his rights. 15. On 24 October 2008 the Tulcea County Court convicted the applicant of unlawful possession of, importing and trafficking drugs and gave him a three-year suspended sentence. He was fined 1,000 Romanian Lei ((ROL) – approximately 270 euros (EUR)). 16. Drawing on the evidence gathered during the investigation and at the trial, the court established the facts as follows. In February 2008 the applicant and his brother had travelled to Belgium to visit their father and from there to Amsterdam, in order to smoke THC. On their return, the applicant had hidden in his luggage and brought into Romania 200 grams of hashish and 60 tabs of LSD, drugs that he had obtained from a friend studying in Belgium. The applicant alleged that he had not known at the time about the LSD, which had been a present from his friend, and that he had only discovered it when he had unpacked at the dormitory. The court however held that the applicant could not claim that he had not been aware of the contents of his luggage since in his first statement (see paragraph 9 above) he had declared that he had personally packed the LSD in a black bag in his suitcase. The court further held that O.D.A., who had used to smoke together with the applicant, had responded to a request for drugs from other students because he had needed money. According to his statements, he had bought approximately 40 grams of cannabis from the applicant on several occasions, and twelve LSD tabs that he had sold at a higher price. On 18 April 2008 O.D.A. had been caught trying to sell the twelve LSD tabs. 17. The court stated that it had based its decision on the following: a technical report on the drugs, toxicology reports, the statements given by the defendants and witness statements. As regards the applicant’s request to disregard his initial statement it stated: “As regards the defendant [K.C.], not only did he refuse to testify before this court, but he tried – personally and through his lawyers – to exclude from the case the statements he gave before the prosecutor, claiming that he had not been made aware of his rights and that he had not been satisfied with the services of the interpreter. After verification of these allegations, the court finds that the defendants were informed of the charges and of their right to remain silent and to be represented by a lawyer of their choice. The defendant K.C. was informed of his rights on 19 April 2008, at [2.15 p.m.], in the presence of his interpreter and lawyer, [and was] questioned afterwards. As regards the services of the interpreter, the defendant could have complained to the prosecutor if he was not satisfied, which he failed to do.” 18. The applicant appealed against that judgment, reiterating his previous arguments. 19. On 3 April 2009 the Constanţa Court of Appeal rejected the applicant’s appeal as ill-founded. In reply to his arguments, it noted that he had been represented by a lawyer and had benefited from the services of an interpreter throughout the entire criminal proceedings, in compliance with the guarantees of Article 6 of the Convention. The court further held that: “The nature of the case and the people involved, in a special location – a university campus – required urgent investigative measures, therefore it cannot be claimed that the presumption of innocence had been breached or that the defendants had been deprived of their right to defence.” 20. The applicant filed an appeal on points of law (recurs). He argued, among other things, that he had been held at the police station and at the prosecutor’s office without legal justification for an unreasonable length of time (twenty-two hours); he also stressed that his initial confession had been taken while he had been detained at the police station without an interpreter, in the absence of a lawyer and following threats by the police officer guarding him. He further submitted that the most serious charges against him had been based only on this initial confession and on O.D.A.’s statement – also taken in the absence of a lawyer – as well as on the findings of the search that, in his opinion, had not been carried out in compliance with the legal procedural requirements. The applicant added that his right to be informed promptly in a language which he understood and in detail of the nature and cause of the accusation against him, as provided for by Article 6 § 3 of the Convention, had been breached. 21. On 21 January 2010 the High Court of Cassation and Justice dismissed the applicant’s appeal on points of law with final effect. 22. The court undertook a fresh analysis of the evidence in the file and decided that the guarantees of a fair trial within the meaning of Article 6 of the Convention had been respected as regards both defendants since they had been provided with legal assistance and had benefited from adversarial proceedings in which all their arguments had been examined and replied to. In conclusion, the court considered that the proceedings, taken as a whole, had been fair. 23. As regards the applicant’s specific complaint about his initial statement given to the police, the court held as follows: “ ... the statements given by the applicant and O.D.A. ... were in compliance with the legal requirements ... for the respective stages of the investigation, they reflected their wishes at the relevant time, both defendants having the capacity to understand the rights presented to them, being students and even in the absence of legal studies, they could have understood the extent of their rights and obligations.” 24. The court further observed that O.D.A. had specifically waived his right to legal assistance (see paragraph 6 above) while the applicant, who had also been informed of his right to an interpreter, had expressed a wish to be assigned one. It also noted that the file included the prosecutor’s decision appointing an English language interpreter in the case and minutes signed by the applicant and the interpreter attesting that the applicant had been informed of his right to be represented by a lawyer of his choice and of the right to remain silent (see paragraph 10 above). The court concluded that, in any event, the applicant had not at any point been detained and therefore legal assistance had not been mandatory in his situation. 25. The remaining arguments raised by the applicant were dismissed by the court as not proved. 26. Throughout the entire trial the applicant was represented by two lawyers of his choice and assisted by a court provided English language interpreter. II. RELEVANT DOMESTIC AND INTERNATIONAL LAW 27. The right to legal assistance and the right to an interpreter are listed in the first chapter of the Criminal Procedure Code among the basic rules of the criminal trial. The relevant provisions (in force at the relevant time) read as follows: Article 6 – Guarantee of the right to defence “1. The suspect, accused and other parties to the criminal proceedings are guaranteed the right to defence. 2. During the criminal proceedings, the judicial authorities shall ensure that the parties are fully able to exercise their procedural rights in the conditions laid down by law, and shall take the evidence necessary for their defence. 3. The judicial authorities shall inform the suspect or accused at the earliest opportunity and before he or she is questioned of the charges against him or her and of their classification in law and shall afford him or her the opportunity to prepare and conduct a defence. 4. All parties are entitled to be assisted by counsel during the criminal proceedings. 5. The judicial authorities shall inform the suspect or accused, before he or she makes his or her initial statement, of his or her right to be assisted by counsel and shall take due note in the record of the hearing. In the conditions and in the cases provided for by law, the judicial authorities shall take all measures to ensure that the suspect or accused is provided with legal assistance where he or she has no counsel of his or her own choosing.” Article 128 – Procedure for the use of interpreters “(1) When one of the parties or another person who is about to be heard does not know or cannot express him or herself in the Romanian language, the investigative authority or the court shall provide him or her with the free assistance of an interpreter. The interpreter may be assigned or chosen by the parties ...” Article 171 – Legal assistance and representation “(1) The suspect or accused is entitled to be assisted by counsel throughout the investigation and trial, and the judicial authorities shall inform him or her of this right. (2) Legal assistance is mandatory when the suspect or accused is a minor ... is held in a rehabilitation centre or a medical and educational institution or is under arrest, even in connection with a different case, when a measure of involuntary medical internment or medical treatment has been taken against him or her, even in connection with a different case, when the investigative authority or the court considers that the suspect or accused cannot sustain his or her own defence, and in the cases provided for by law ...” Article 229 – The suspect (învinuitul) “The suspect is a person who is the subject of a criminal investigation, until such time as a prosecution is brought.” 28. Article 24 of the Constitution provides that the right to defence is guaranteed and that all throughout the trial, the parties are entitled to be assisted by a lawyer of their own choosing or appointed on their behalf. 29. The relevant provisions of international and European Union law regarding the right of access to a lawyer in criminal proceedings are described in the case of Simeonovi v. Bulgaria ([GC] no. 21980/04, §§ 69‑75, ECHR 2017 (extracts)). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) AND (e) OF THE CONVENTION 30. The applicant complained that he had not been assisted by a lawyer and an interpreter when he had given his first statement to the police and that this statement had been subsequently used as grounds for his conviction, hence breaching the guarantees of a fair trial. He relied on Article 6 § 3 (c) of the Convention. 31. The Court reiterates that by virtue of the jura novit curia principle it is not bound by the legal grounds adduced by the applicant under the Convention and the Protocols thereto and has the power to decide on the characterisation to be given in law to the facts of a complaint by examining it under Articles or provisions of the Convention that are different from those relied upon by the applicant (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, ECHR 2018). Therefore, having regard to the nature and the substance of the applicant’s complaints in this particular case, the Court finds that they fall to be examined under Article 6 §§ 1 and 3 (c) and (e), which reads as follows: “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: ... (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ... (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.” A. Admissibility 32. The Court notes that the application 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’ submissions (a) The applicant 33. The applicant submitted that from around 10 p.m. on 18 April 2008 – when he had been taken to hospital for toxicology tests and subsequently to the police for questioning (see paragraph 8 above) – until the following evening, he had in fact been under arrest. He further submitted that his initial statement (see paragraph 9 above), taken between 3 and 4 a.m. on 19 April 2008, had been dictated to him by a police officer in the absence of a lawyer or an interpreter. Later that day, in the prosecutor’s office, a lawyer had been appointed on his behalf and had signed all his statements, including the initial statement mentioned above. 34. In view of the above, the applicant invited the Court to conclude that the Romanian authorities had breached not only domestic criminal law but also the Constitution and the Convention. (b) The Government 35. The Government argued that no accusations had been made against the applicant at the moment of his initial statement. However, if the Court considered that, at the specific moment of the investigation, the applicant should have been given notice of the accusations against him, in a language he could understand and in the presence of a lawyer, an overall assessment of the case should be made. In this connection, they asked the Court to take into consideration that the applicant’s conviction had not been based solely or to a decisive extent on the statement in question. Furthermore, the Government observed that the applicant had been assisted by a lawyer on 19 April 2008 when he had been informed of the accusations against him. In addition, by contrast with the applicant in the case of Argintaru v. Romania ((dec.) no. 26622/09, 8 January 2013), in his subsequent testimonies before the investigative authorities the applicant in the current case had not substantially changed his first statement. They also submitted that the applicant had been assisted by defence lawyers throughout the proceedings and had been able to raise his complaints before the domestic courts. 36. As regards the right to an interpreter, the Government, quoting the case of Příplata v. Romania ((dec.), no. 42941/05, 13 May 2014), invited the Court to give full effect to the principle of subsidiarity and to note that the applicant’s complaint had been thoroughly examined by the domestic courts, which had found that the proceedings as a whole had been fair. In addition, they submitted that it did not appear from the case file that the applicant had had any difficulties in following and understanding the proceedings as he had not asked for clarifications concerning the nature and cause of the accusation against him. 37. In view of the above, the Government contended that the requirements of a fair trial had been observed in the current case and that the criminal proceedings against the applicant, considered as a whole, did not disclose any violation of Article 6 of the Convention. 2. The Court’s assessment 38. While keeping in mind that in assessing whether there has been a breach of the right to a fair trial it is necessary to view the proceedings as a whole and the Article 6 § 3 rights as specific aspects of the overall right to a fair trial rather than ends in themselves (see Ibrahim and Others v. the United Kingdom ([GC], nos. 50541/08 and 3 others, § 262, ECHR 2016), the Court will, in the present case, examine separately the applicant’s allegations concerning the lack of access to a lawyer and of assistance of an interpreter. (a) Lack of access to a lawyer 39. The applicable general principles under Article 6 §§ 1 and 3 have been stated in the cases of Salduz v. Turkey ([GC], no. 36391/02, §§ 51-54, ECHR 2008), and, more recently, Ibrahim and Others, cited above, §§ 255‑265, ECHR 2016). 40. The protections afforded by Article 6 §§ 1 and 3 of the Convention apply to any person subject to a “criminal charge”, within the autonomous Convention meaning of that term. A “criminal charge” exists from the moment that an individual is officially notified by the competent authority of an allegation that he or she has committed a criminal offence, or from the point at which his or her situation has been substantially affected by actions taken by the authorities as a result of a suspicion against him or her (see Eckle v. Germany, 15 July 1982, § 73, Series A no. 51). Thus, for example, a suspect questioned about his or her involvement in acts constituting a criminal offence can be regarded as being “charged with a criminal offence” and claim the protection of Article 6 of the Convention (see Ibrahim and Others, cited above, § 296). 41. In the present case, on 18 April 2008 a criminal investigation was opened against the applicant on suspicion of drug trafficking (see paragraph 7 above). In accordance with Romanian law (see, notably, Article 229 of the Criminal Procedure Code, quoted in paragraph 27 above), at that moment the applicant became a suspect. Later the same day, after drugs had been found during a search of his residence, the applicant was first taken to the hospital for a toxicology test and then to the police for questioning (see paragraph 8 above). During the night of 18 April, police officers took an initial statement from the applicant (see paragraph 9 above). The Government alleged that at the time of this statement, no accusations had been made against the applicant. However, taking into account the sequence of events as summarised above and the domestic law, the Court considers that the applicant’s presence at the police station on the night of 18 April 2008 and his questioning were done in his capacity of a suspect (compare Sîrghi v. Romania, no. 19181/09, § 44, 24 May 2016). Therefore, it was as of this moment that the criminal limb of Article 6 of the Convention became applicable to the proceedings at issue. 42. The Court further notes that Romanian law “guarantees” a suspect the right to defence throughout the entire investigation and trial. To this end, under Article 6 § 5 of the Criminal Procedure Code, the judicial authorities were required to inform the applicant before his initial statement of his right to be assisted by counsel and to take note of this in the record of the hearing (see paragraph 27 above). However, there is nothing in the file to indicate that the applicant was informed at the time of his initial statement given to the police of his right to be represented by a lawyer or whether he had waived this right, as was the case with his co-accused, O.D.A. (see paragraph 6 above). Accordingly, the Court cannot conclude that the applicant waived his right to legal assistance before giving his first statement to the police. That right was therefore restricted. 43. Restrictions on access to legal advice are permitted only in exceptional circumstances, must be of a temporary nature and must be based on an individual assessment of the particular circumstances of the case. When assessing whether compelling reasons have been demonstrated for such restrictions, it is important to ascertain whether the decision to restrict legal advice had a basis in domestic law and whether the scope and content of any restrictions on legal advice were sufficiently circumscribed by law so as to guide operational decision-making by those responsible for applying them (see Ibrahim and Others, cited above, §§ 256 and 258-259, and Simeonovi v. Bulgaria [GC], no. 21980/04, § 117, 12 May 2017). However, under national law there is no provision allowing for a restriction of the right to a lawyer in exceptional circumstances for suspects in the applicant’s situation (see paragraph 27 above) and the Government have relied on no such exceptional circumstances. The Court itself does not see any “compelling reasons” which could have justified restricting the applicant’s access to a lawyer during his initial questioning by the police. 44. The absence of compelling reasons does not lead in itself to a finding of a violation of Article 6 of the Convention. However, the Court must apply a very strict scrutiny to its fairness assessment. The failure of the respondent Government to show compelling reasons weighs heavily in the balance when assessing the overall fairness of the trial and may tip the balance in favour of finding a breach of Article 6 §§ 1 and 3 (c). The onus will be on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the trial was not irretrievably prejudiced by the restriction on access to legal advice (see Ibrahim and Others, cited above, §§ 262 and 264). 45. In the present case, the Government argued that the applicant had been assisted by defence lawyers who had been able to raise his complaints before the domestic courts (see paragraph 35 above). Indeed in Ibrahim and Others (cited above, § 274, point (c)) an important factor considered by the Court in order to assess the impact of procedural failings at the pre-trial stage on the overall fairness of the criminal proceedings was whether the applicant “had the opportunity to challenge the authenticity of the evidence and oppose its use”. In this connection, the Court notes that the applicant in the current case complained before the domestic courts of the lack of access to a lawyer during his initial questioning by the police and requested that his initial statement be excluded from the evidence to be considered during the trial (see paragraph 14 above). He reiterated his complaint in the appeal and cassation proceedings (see paragraphs 18 and 20 above). The Tulcea County Court and the Constanţa Court of Appeal did not address the applicant’s specific allegation and merely mentioned, in a general manner, that he had had access to a lawyer when he had been formally informed of the charges against him and throughout the proceedings (see paragraphs 17 and 19 above). The High Court of Cassation and Justice, deciding on the applicant’s case with final effect, considered that all the statements taken during the pre-trial stage of the proceedings had been in compliance with the law since the applicant had not been detained and therefore legal representation had not been mandatory in his case (see paragraphs 23 and 24 above). The Court considers that in making only general statements and invoking the non-mandatory aspect of the legal representation in the applicant’s situation the domestic courts did not repair the consequences resulting from the absence of a lawyer during the applicant’s initial questioning by the police (see, mutatis mutandis, Sîrghi, cited above, § 52; and contrast Ibrahim and Others, cited above, §§ 282-284). 46. The Government also argued that the applicant had been assisted by a lawyer on 19 April 2008 when he had been given notice of the accusations against him and that, in his subsequent testimonies given in the presence of his lawyer he had not substantially changed his first statement of 18 April 2008 (see paragraph 35 above). In that regard, the Court observes that in his subsequent statements given in the presence of his lawyer, the applicant partially retracted his initial confession as concerns the accusation of importing the LSD tabs and alleged that he wasn’t aware of the presence of these tabs in his luggage (see paragraph 10 above). Nevertheless, the domestic courts had chosen to disregard this partial retraction and specifically based their decision in his respect only on the applicant’s initial statement of 18 April 2008 (see paragraph 16 above). 47. The Court further notes that the initial statement under dispute formed a significant part of the probative evidence upon which the applicant’s conviction was based, being specifically quoted by the Tulcea County Court who took the initial decision on the merits of the case (see paragraphs 16 and 17 above). 48. The Court reiterates that in cases such as the present one, where there have been no “compelling reasons” to restrict access to a lawyer at the early stages of the proceedings, it can only in exceptional circumstances find that the overall fairness of the proceedings has not been prejudiced by that initial failure to observe the accused’s rights (see the case-law quoted in paragraph 44 above, as well as Dimitar Mitev v. Bulgaria, no. 34779/09, § 71, 8 March 2018). Thus, while finding that the elements referred to by the Government are relevant, applying the requisite strict scrutiny, the Court concludes that they are insufficient to tip the balance in favour of a finding that the proceedings in the present case were fair. (b) Lack of assistance of an interpreter 49. The Court reiterates that paragraph 3 (e) of Article 6 guarantees the right to the free assistance of an interpreter. That right applies not only to oral statements made at a trial hearing but also to documentary material and the pre-trial proceedings. This means that an accused who cannot understand or speak the language used in court is entitled to the free assistance of an interpreter for the translation or interpretation of all those documents or statements in the proceedings instituted against him or her which it is necessary for him or her to understand or to have rendered into the court’s language in order to have the benefit of a fair trial. Furthermore, the interpretation assistance provided should be such as to enable the accused to have knowledge of the case against him or her and to defend him or herself, notably by being able to put before the court his or her version of events (see Baytar v. Turkey, no. 45440/04, § 49, 14 October 2014). 50. Like the assistance of a lawyer, that of an interpreter should be provided from the investigation stage, unless it is demonstrated that there are compelling reasons to restrict this right (see, to that effect, Diallo v. Sweden (dec.), no. 13205/07, § 25, 5 January 2010). 51. The Court further recalls that the issue of a defendant’s linguistic knowledge and the nature of the offence with which he or she is charged are vital for the examination of complaints made under Article 6 § 3 (e) of the Convention (see Amer v. Turkey, no. 25720/02, § 78, 13 January 2009). 52. In the present case, the Court notes that the applicant, who is not a Romanian national and was only temporarily living in Romania, alleged that he did not understand or speak Romanian language. The Government submitted that the applicant did not have any difficulties in following and understanding the proceedings as he had not asked for clarifications concerning the accusation against him (see paragraph 36 above). 53. The Court observes that, when he was questioned at the police station, the applicant was suspected of having committed serious crimes. Indeed, his initial confession made to the police during the night of 18 April 2008 was to become crucial for his case and to be relied on by the trial court in convicting him (see paragraphs 46 and 47 above). The Court further observes that the statement in question was handwritten by the applicant in English (see paragraph 9 above). Nevertheless, despite its importance for the domestic proceedings, the statement does not make any mention of the applicant being informed of the possibility of requesting the assistance of an interpreter or of him having rejected an interpreter’s assistance. As regards the Government’s submission that the applicant had not asked for clarifications concerning the accusations against him, the Court notes that the applicant was informed of the accusations against him in the presence of an interpreter and a lawyer at a later stage, after he had already given the statement in question (see paragraph 10 above). 54. In view of the above and noting that there is no evidence in the file indicating that the applicant had sufficient knowledge of Romanian, the Court considers that at the time of his initial questioning by the police, the Romanian authorities had enough elements to believe that assistance by an interpreter might have been needed, or was at least highly desirable. 55. It is also crucial to reiterate that when this statement was taken by the police, the applicant was not accompanied by a lawyer. The applicant was therefore questioned and his prejudicial statement drafted when he was deprived of an important Convention safeguard (see paragraphs 41-48 above). 56. In the Court’s opinion, the verification of the applicant’s need for interpretation facilities at the time of his initial questioning by the police should have been a matter for the domestic courts to adequately examine with a view to reassuring themselves that the absence of an interpreter would not prejudice his right to a fair trial (see Amer, cited above, § 83, and, mutatis mutandis, Cuscani v. the United Kingdom, no. 32771/96, § 38, 24 September 2002). The above-mentioned principle is even more relevant in the current case since before the domestic courts it was not in dispute that the assistance of an interpreter was necessary for the applicant who, throughout the entire trial before them, was assigned an interpreter (see paragraph 26 above and compare Baytar, cited above, § 51). In this connection, the Government argued that the domestic courts had thoroughly analysed the applicant’s complaints and found that the proceedings as a whole had been fair (see paragraph 36 above). The Court notes however that, as in the case of the applicant’s complaint concerning the lack of assistance of a lawyer (see paragraph 45 above), the domestic courts made only general statements about the proceedings as a whole and did not specifically examine the particular context in which the initial statement in question had been given by the applicant and its possible repercussions on the overall fairness of the proceedings (see paragraphs 17, 19, 23 and 24 above). 57. While it is true that the applicant enjoyed the assistance of an interpreter from the moment that formal charges had been brought against him and during the trial (see paragraphs 10 and 26 above), the Court is of the opinion that this fact was not such as to remedy the defect which vitiated the proceedings at their initial stage (see, mutatis mutandis, Baytar, cited above, § 56). (c) Conclusion 58. Having regard to the above considerations, the Court is not satisfied that the applicant received a fair trial. There has accordingly been a violation of Article 6 §§ 1 and 3 (c) and (e) of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 59. 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 60. The applicant claimed pecuniary damage without specifying an amount in respect of, inter alia, the consequences of the conviction on his professional life and on his ability to choose his place of residence. He also asked the Court, without specifying an amount, to award him non-pecuniary damage. 61. The Government contested the claims, arguing that they were unsubstantiated. 62. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. 63. The Court reiterates that the most appropriate form of redress for a violation of Article 6 § 1 would be to ensure that the applicant, as far as possible, is put in the position in which he would have been had this provision not been disregarded (see Saldüz, cited above, § 72, and the cases cited therein). The Court finds that this principle also applies in the present case. Consequently, it considers that the most appropriate form of redress would be a retrial in accordance with the requirements of Article 6 § 1 of the Convention, should the applicant so request. 64. As regards the remaining non-pecuniary damage, ruling on an equitable basis, the Court awards the applicant 3,000 euros (EUR). B. Costs and expenses 65. The applicant also claimed various amounts for costs and expenses incurred before the domestic courts and before the Court without submitting any documents. 66. The Government asked the Court to reject the claim as unsubstantiated. 67. 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 (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI). In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claim for costs and expenses. C. Default interest 68. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 §§ 1 and 3 (c) and (e) of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months, EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 30 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Andrea TamiettiPaulo Pinto de AlbuquerqueDeputy RegistrarPresident

THIRD SECTION CASE OF CIORCAN AND OTHERS v. ROMANIA (Applications nos. 29414/09 and 44841/09) JUDGMENT This judgment was revised in accordance with Rule 80 of the Rules of Court in a judgment of 17 January 2017. STRASBOURG 27 January 2015 FINAL 27/04/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Ciorcan and Others v. Roumania, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Luis López Guerra,Ján Šikuta,Dragoljub Popović,Kristina Pardalos,Johannes Silvis,Iulia Antoanella Motoc, judges,and Marialena Tsirli, Deputy Section Registrar, Having deliberated in private on 6 January 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in two applications (nos. 29414/09 and 44841/09) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by thirty-seven Romanian nationals (“the applicants”), on 18 May 2009 and 11 August 2009 respectively. The applicants’ details are set out in the table enclosed as an annex to this judgment. The applicants were represented by Mr O.L. Podaru, a lawyer practising in Cluj-Napoca. 2. The Romanian Government (“the Government”) were represented by their Agent, Ms I. Cambrea, from the Ministry of Foreign Affairs. 3. The applicants, relying on Articles 2 and 3 of the Convention, alleged that the forceful and disproportionate intervention of State agents had put their lives in danger and subjected them to ill-treatment, and that the authorities had failed to conduct an effective investigation into the events in question. They further alleged that the events complained of had been the result of discriminatory attitudes towards people of Roma origin and entailed a violation of Article 14 of the Convention. 4. On 29 November 2011 the applications were communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicants are thirty-seven Romanian nationals of Roma origin. They all live in the Apalina neighbourhood in the town of Reghin, Romania. A. Background to the case 6. On 7 September 2006 at around 2.30 p.m. the applicant Augustin Biga and his friend C.A had a quarrel in a bar with R.O., a policeman who worked for the Mureş County police. Consequently, R.O. filed a criminal complaint against the two men, accusing them of insulting behaviour. 7. In the context of the investigation of the above-mentioned complaint, at around 4 p.m. the same day, the chief of the Mureş County police gave the order by telephone for several police officers to go to Apalina, the neighbourhood where Augustin Biga and C.A lived, in order to summon them before the prosecutor. He advised them to exercise particular caution, mentioning on the phone that it would be difficult to get there owing to a large number of people (several hundred) blocking the way armed with bats, pitchforks, axes and scythes, and that the law-enforcement authorities had been unable to secure the area. He also requested the assistance of officers from the local special forces police (Detaşamentul de Intervenţie şi Acţiuni Speciale Mureş – DIAS). According to the operation order completed by the chief of the local special forces unit on 7 September 2006, the reason for the request was “to ensure the protection of the policemen conducting an investigation for insulting behaviour towards policeman R.O.” 8. Immediately afterwards, seven special forces officers (P.Ş., C.I., V.M., M.F., H.D.M., S.P. and G.P.J.) wearing special uniforms and masks covering their faces, together with two local police officers from the Reghin Police (B.M. and M.V.) and four plain-clothes officers from the investigations department of the Mureş County police (A.M., M.M., C.R.R. and S.C.L.) left for Apalina, taking a van and two cars. B. Facts as submitted by the applicants 9. On 7 September 2006 around 5 p.m., on seeing the police vehicles, the applicants and other inhabitants of the neighbourhood, mostly women and children, started gathering in the street out of curiosity. 10. In order to disperse the crowd, the special forces officers threw several tear gas grenades, which sent everyone into a panic, pushing each other and running around in all directions. At that point the police officers started shooting at the running crowd while backing up their vehicles and leaving the neighbourhood. C. Facts as submitted by the Government 11. According to the prosecutor’s decision of 16 July 2007 (see paragraph 51 below), shortly after the police officers arrived in the neighbourhood, the local residents started gathering and a fight broke out between them and the special forces officers, who were forced to use their weapons. The prosecutor gave details about the incident, noting that shortly after all the State agents (except the one driving the van) got out of their vehicles, they found themselves surrounded by eighty to a hundred people, who began to jostle against them and pull at their equipment. In the meantime, the police officers recognised the mother of Augustin Biga and told her they were going to summon her son for a hearing before the prosecutor. As this discussion was taking place, some of the policemen heard shouting and noticed that about a hundred Roma were attacking the special forces officers with bats, pitchforks, empty bottles and stones. 12. According to statements made by the special forces officers to the prosecutor, they initially used three defensive tear gas sprays. This only infuriated the crowd, who got even more aggressive and started to throw stones and bricks. Two of the officers then fired shots into the air. V.M. stated that since the Roma would not stop, he had fired his hunting weapon twice into the air. He was then attacked by ten people, who pulled at his clothes and hit him with sharp objects until he fell to his knees, at which point he fired rubber bullets into the crowd. The crowd then partially retreated. 13. The incident, as presented in the prosecutor’s decision, continued with the State agents attempting to retreat while the Roma, hidden behind the houses, continued to throw stones, glass bottles and other objects at them. 14. As a result of the clash, six State agents suffered injuries which required medical treatment lasting between five and fourteen days (see paragraph 53 below). D. Consequences of the incident 15. More than twenty-five Roma were reportedly injured and/or shot. Some of them were issued medical certificates confirming their injuries, which were considered to need between eight and forty-five days of medical treatment. 16. Ms Susana Ciorcan as well as the following twelve applicants suffered injuries confirmed by medical certificates: 1. Susana Ciorcan According to her hospital observation sheet, Ms Ciorcan was shot in the stomach and was diagnosed with the following conditions: haemorrhagic shock, peritonitis, rupture of the iliac vein, rupture of the ureter, four traumatic lesions of the small intestine, and a lesion of the terminal ileum and colon. Following the incident, she underwent surgery and remained in hospital for eight days. Her forensic medical certificate issued on 11 October 2006 stated that the shooting had endangered her life, that she required forty to forty-five days of medical treatment, and that she and her aggressor had been face-to-face. Neither of the medical documents contained information about the type of bullet which might have caused her injuries. 2. Costel Ciorcan According to his forensic medical certificate issued on 11 September 2006, he had several gunshot wounds in the right arm, left knee and left thigh, with six bullets remaining in his body. He underwent surgery on 8 September 2006 and six bullets were extracted from his wounds. He remained in hospital for three days. His injuries were considered to have been caused by rubber bullets and to require twelve to fourteen days of medical treatment. 3. Carol Ciorcan According to his forensic medical certificate issued on 19 September 2006, he had an excoriation wound on the right cheek and a gunshot wound on the right elbow, with the bullet remaining in his body. His injuries were considered to have been caused by a rubber bullet and to require eight to nine days of medical treatment. 4. Ana Maria Paula Bidi (Beica) According to her forensic medical certificate issued on 19 September 2006, she was shot in the left side of the thorax and also had a gunshot wound on her back in the left thorax area. Her wounds were considered to have been caused by rubber bullets and to require eight to nine days of medical treatment. 5. Denes Biga According to his forensic medical certificate issued on 5 October 2006, he was shot in the right arm and the back right side of the chest, with several bullets remaining in his body. His injuries were considered to require twenty-two to twenty-four days of medical treatment. According to his hospital observation sheet, he underwent surgery on 22 September 2006, but the doctors only managed to take out five rubber bullets from his chest. 6. Erika Biga According to her forensic medical certificate issued on 8 September 2006 and hospital notes, she had multiple gunshot wounds in the right leg, with one bullet remaining in her body. Her injuries were considered to require sixteen to eighteen days of medical treatment. On 7 September 2006, she underwent surgery to have the bullet extracted. Neither of the medical documents contained information about the type of bullet which might have caused her injuries. 7. Ladislau Biga According to his medical certificate issued by the hospital on 14 September 2006, he had gunshot wounds in the left chest and on the back of his thigh, with the bullets remaining in his body, and excoriation wounds on his right chest and arm. He underwent surgery on 13 September 2006 and several bullets were extracted. The medical document contained no information about the type of bullet which might have caused his injuries. 8. Rozalia Bucunea According to her forensic medical certificate issued on 11 September 2006, she had a gunshot wound in the left side of the chest and three gunshot wounds in the left thigh, with two rubber bullets remaining in her body, and two contusions in the umbilical region. She was considered to require eleven to twelve days of medical treatment. On 8 September 2006, she underwent surgery to have the bullets extracted. 9. Petru Kalanyos Jr According to his forensic medical certificate issued on 11 September 2006, he had a wound beneath the left eye which could have been caused by being hit with a hard object. He was considered to require three to four days of medical treatment. 10. Traian Kovac According to his forensic medical certificate issued on 19 September 2006, he had an excoriation wound in the left zygomatic region and several wounds and ecchymosis on the right side of the thorax and on the abdomen which could have been caused by being shot with rubber bullets. He was considered to require eight to nine days of medical treatment. 11. Mihai-Alexandru Moldovan According to his forensic medical certificate issued on 19 September 2006, he had a gunshot wound in the right side of the thorax, with a rubber bullet remaining in his body. He was considered to require eight to nine days of medical treatment. 12. Lela Potra According to her forensic medical certificate issued on 19 September 2006, she had a gunshot wound and an excoriation wound on the interior side of the lower part of the right leg, which may have been caused by a rubber bullet. She was considered to require eight to nine days of medical treatment. 13. Lajos Panta According to the certificate issued by the hospital on 9 September 2006 he had a contusion on the left shoulder. 17. The following twenty-two applicants: Ştefan Bidi, Margareta Biga, Iosif Biga Snr, Iosif Biga Jr, Liviu Bucunea Jr, Etelka Capo, Agneta Csiki, Edith Csiki (Biga), Lia Gabor, Ana-Narcisa Gorcs, Ladislau Horvath, Ildiko Kalanyos (Biga), Susana Kalanyos, Petru Kalanyos Snr, Ana Lingurar, Ancuţa Maria Moldovan, Violeta Pusuc, Edith Racz (Biga), Cornelia Simion (Biga), Ianos Ştefan, Ana Tina Snr and Ana Tina Jr declared to the national prosecutor that they had suffered various injuries, but did not produce any medical certificates to corroborate their claims. The remaining three applicants: Sonia Biga, Augustin Biga and Sorin Ciorcan, only complained about the injuries suffered by their mother, Susana Ciorcan. E. Criminal proceedings 1. Investigation for attempted first-degree murder 18. On 7 September 2006 the Prosecutor’s Office of the Mureş County Court (“the Mureş prosecutor’s office”) launched a criminal investigation against the special force officers for the attempted first degree murder of Susana Ciorcan, under Article 20 in conjunction with Articles 174 and 175(i) of the Criminal Code. 19. The investigation began with an examination of the crime scene the next day. In the prosecutor’s report it was noted that: “The crime scene has suffered numerous alterations, namely the removal of the damaged vehicles, the bullets and bullet cases used by the State agents, as well as their other weapons, the transport of all of the victims to hospital ... finding the area has been cleaned to some extent compared to the rest of the street.” The report further stated that several traces of blood and holes were found on the ground, doors and walls of the houses surrounding the crime scene. The holes found on the houses were between 28 and 60 cm from the ground. Several clothes and other items stained with blood or presenting possible bullet holes were seized as evidence. According to the same report, the following materials were handed over to the investigators by the victims: three tear gas sprays, eleven STAR-70mm-RB-15 cartridge cases and nineteen 9x19-86-325 cartridge cases. Four other unidentified cartridge cases and two metal bullets were also collected. The objects allegedly used by the crowd to attack the policemen could not be found. In addition, a pitchfork and a 12 mm hunting gun were seized from the headquarters of the Reghin police. Fingerprints were also collected from the vehicles used by the police officers. 20. On 11 and 19 September 2006 the prosecutor ordered expert examinations of the guns used by the State agents during the incident, their cartridge cases and bullets, as well as the clothes and other items gathered from the crime scene. A first report issued on 14 September 2006 concluded that the eleven STAR-70mm-RB-15 cartridge cases had been fired from the hunting gun. The report did not state whether the eleven cartridge cases came from rubber bullets, but indicated that the bullets used in order to perform the tests had been hunting bullets. A second expert report issued on 10 October 2006 concluded that the other twenty-three cartridge cases had been fired from three of the pistols belonging to the special forces officers. However, with respect to the two metal bullets found at the scene of the incident it was noted that no resources were available to establish from which gun they had been fired. 21. Medical documents were also collected from the local hospital and requested from the Forensic Institute in respect of some of the Roma victims and all the police officers involved. 22. On 3 October 2006 twenty-seven victims of the incident filed a criminal complaint against the special forces officers for abusive conduct and causing bodily harm, a complaint which was joined to the pre-existing investigation. They were the applicants Liviu Bucunea Jr, Ancuţa Maria Moldovan, Mihai Moldovan Jr, Ana Tina Snr, Ana Tina Jr, Agneta Csiki, Lia Gabor, Ana-Narcisa Gorcs, Traian Kovacs, Costel Ciorcan, Lajos Panta, Ştefan Bidi, Etelka Capo, Violeta Pusuc, Ildiko Kalanyos (Biga), Susana Kalanyos, Edith Csiki (Biga), Cornelia Simion (Biga), Margareta Biga and eight other victims. 23. A report drafted on 6 October 2006 by an officer from the Mureş County police contained a list of the steps undertaken in the investigation to that date as well as a list of “questions to ask the Roma”. The relevant parts read as follows: “Did the gypsies know that the police officers and DIAS forces were coming to Apalina and why? Were the gypsies gathered near the houses of the two wanted criminals before the police officers arrived? How many gypsies were there?” The report also mentioned that, following a check of the census, it had been possible to identify the inhabitants of the neighbourhood who took part in the incident, some of whom had a criminal record. 24. On an unspecified date the criminal records of the Roma who had made statements to the prosecutor (see paragraph 25 below) were checked and the information was adduced to the investigation file. One of them had two previous convictions for theft and another had two convictions for robbery. 25. On 17 October 2006 eighteen of the applicants, Susana Ciorcan and three other victims made statements to the prosecutor. Their statements were consistent, in that they all said that on seeing the police vehicles they had come out of their houses with their spouses and children out of curiosity. While normal discussions had been taking place between Susana Ciorcan and the policemen, the special forces officers had started to spray the crowd with tear gas and throw tear gas grenades at them and as everybody ran around trying to protect their children and go back inside their houses, the same officers had started to shoot at them. 26. In her statement, Susana Ciorcan said that while she had been in her courtyard giving information to the plain-clothes officers about the whereabouts of her son, a “fight broke out between the masked men and the Roma” and a tear gas grenade had fallen by her feet. The five officers that she had been talking to ran away and one of them had shouted “Do not shoot!” and she had turned to run and hide inside her house. At that moment she had been shot in the back and lost consciousness. 27. In their statements, the applicants Ana Maria-Paula Bidi, Denes Biga, Erika Biga, Iosif Biga Snr, Iosif Biga Jr, Ladislau Biga, Rozalia Bucunea, Carol Ciorcan, Edith Csiki (Biga), Ladislau Horvath, Petru Kalanyos Snr, Petru Kalanyos Jr, Ana Lingurar and Lela Potra declared that they were thereby submitting complaints against the special force officers who ill-treated them and claiming compensation from them. 28. On 23 October 2006 the four officers from the investigations department of the Mureş County police were questioned by the prosecutor as witnesses. Their statements were practically identical, saying that while they had been talking to Susana Ciorcan, they had heard noise coming from where they had left their vehicles and when they had turned round they had seen: “...several armed individuals (around 100-150 ethnic Roma), attacking the DIAS fighters with bats, pitchforks, bottles, stones and other objects”. A.M., M.M. and C.R.R. declared that when they had left for the Apalina neighbourhood, they had not been aware that the “Roma from this neighbourhood might commit violent acts”. M.M., C.R.R. and S.C.L. further declared that they had neither assaulted nor been physically assaulted by the “ethnic Roma”. 29. On 10 January 2007 the special forces officers made statements to the prosecutor. They all declared that they had been forced to use their guns in order to defend themselves and their colleagues. 30. Officer P.Ş., head of the special forces unit, stated: “Immediately upon our arrival in the neighbourhood, a large number of Roma ethnic people started to gather in their yards, on the side of the road and behind us; they headed towards us after we parked our vehicles ... These people initially only verbally attacked [us]... Shortly afterwards, [they] started to push our colleagues from the judiciary [investigations department], who were in plain clothes and were not carrying weapons. At that moment, seeing that [the officers] could not fulfil the purpose of their operation ... I considered that we must immediately ensure their protection and then leave the neighbourhood ... Because the use of sprays and sticks had no effect on the people in the area, who, on the contrary, became more aggressive and continued attacking us and throwing stones and bricks, me and two colleagues fired warning shots in the air with our pistols ... V.M., who had a rifle with rubber bullets, started using it. I did not see when he started shooting, I just heard the first shots.” 31. Officer V.M. stated in his testimony: “Immediately upon our arrival, a large number of gypsies started to gather around us; ... When our colleagues from the judiciary [investigations department] were surrounded, and when I saw that they were being attacked by the gypsies, [who were] pulling their clothes, our commander gave us the order to get out of our vehicles and make a way for them to get out of the crowd ... When we got out of our vehicles, each of us was surrounded by a few furious gypsies, who started assaulting us ... I was equipped with the following: a tear gas spray, a double-barrel hunting rifle which had rubber bullets, and a 9 mm Glock pistol with nineteen rounds of live ammunition, which I didn’t use ... I loaded my hunting rifle with two bullets and shouted ‘Freeze, police! We will use firearms!’ The shouting had no effect so I fired two shots in the air. These also had no effect on the furious crowd. My colleagues also fired their pistols with live ammunition in the air ... At one point, on hearing shouting coming from the upper side of the street, and seeing that stones were being thrown from that direction, I went to the crossroads and I saw a big crowd of gypsies coming towards us. I reloaded the gun with the intention of firing another shot in the air. At that moment, I was attacked by a group of around ten people, who were coming towards me. They started hitting me ... I was then hit in the head by a stone thrown by the group of people coming down the street ... After being hit, I fell to my knees and pulled the trigger of the gun, firing in the direction of the crowd.” 32. Officer C.I. said in his statement that: “... I saw my colleague P.J., who appeared to have been wounded, lying on a fence. Because I had heard my colleagues warn the assaulters to back up or weapons would be used, I took out the pistol and in order to ensure that I had enough space and time to help my injured colleague, I fired four shots in the air ... I personally only saw our commander Mr P.Ş. fire several shots in the air ... As far as I noticed, all shots had been fired in the air.” 33. Officer S.P. stated that he did not fire his gun saying that: “Immediately upon our arrival, a large number of gypsies started to gather around us; ... When our colleagues from the judiciary [investigations department] were surrounded, and when I saw that they were being attacked by the gypsies, [who were] pulling their clothes, our commander gave us the order to get out of our vehicles and make a way for them to get out of the crowd ... When we got out of our vehicles, each of us was surrounded by some angry gypsies, who started assaulting us ... The gypsies were becoming more and more nervous ... We started defending ourselves, first using tear gas spray ... We then threw one or two grenades, also filled with tear gas ... We used our sticks ... I also had a Makarov pistol on me with live ammunition, but I did not manage to pull it out ... As far as I understood it, our boss and two other colleagues took out their guns and fired some shots in the air, in order to discourage the aggressors ... One of our colleagues, V.M., had a “hunting” type rifle with rubber bullets. This gun was used to fire several shots into the crowd ... After around three minutes, I managed to regroup with my colleagues in formation and make way for the two Logans [cars], which managed to retreat from the street ... I got behind the wheel of our vehicle and turned to leave the area.” 34. Officer H.D.M. also stated that he did not use his gun declaring: “Immediately upon our arrival, a large number of gypsies started to gather around us; ... When our colleagues from the judiciary [investigations department] were surrounded, and when I saw that they were being attacked by the gypsies, [who were] pulling their clothes, our commander gave us the order to get out of our vehicles and make a way for them to get out of the crowd ... When we got out of our vehicles, each of us was surrounded by some angry gypsies, who started assaulting us ... The gypsies were becoming more and more nervous ... We started defending ourselves, first using the tear gas spray ... We then threw one or two grenades, also filled with tear gas ... We used our sticks ... I also had a Glock pistol on me with live ammunition, but I did not manage to pull it out ... As far as I understood it, our boss and two other colleagues took out their guns and fired some shots in the air, in order to discourage the aggressors ... One of our colleagues, V.M., had a “hunting” type rifle with rubber bullets. This gun was used to fire several shots into the crowd. After around four minutes, I managed to regroup with my colleagues in formation and make way for the two Logans [cars], which managed to retreat from the street ... ” 35. From officer G.P.J.’s testimony, it appeared that he too did not fire his gun: “Immediately upon our arrival, a large number of gypsies started to gather around us; ... When our colleagues from the judiciary [investigations department] were surrounded, and when I saw that they were being attacked by the gypsies, [who were] pulling their clothes, our commander gave us the order to get out of our vehicles and make a way for them to get out of the crowd ... When we got out of our vehicles, each of us was surrounded by some angry gypsies, who started assaulting us ... I was immediately hit with a bat in the legs and then with a stone or brick in the head ... I fell to the ground ... A few moments later, I effectively lost consciousness and I cannot say what happened to my colleagues next ...” 36. Officer M.F. similarly declared that he did not use his gun. He further stated that: “Because our warnings had no effect and we continued to be attacked, I heard several gunshots and I saw my colleague C.I. next to me, firing a few shots in the air with his pistol ... I saw my other colleague, V.M., the only one of us carrying a rifle and he also fired shots in the air ... As far as I noticed, all the shots had been fired in the air.” 37. On 16 January 2007 the prosecutor decided to terminate the attempted first-degree murder investigation, with a decision not to bring charges against the State agents. He held that upon the arrival of the police officers in the neighbourhood, people started gathering in the street and “... a fight broke out between them and the DIAS unit”. The decision mentioned that according to the agents’ statements, on 7 September 2006 they had used “paralysing sprays and grenades, bats and firearms, discharged into the air in order to discourage the crowd”; V.M. had used a hunting gun with rubber bullets, shooting both into the air and at the crowd. Several people had been injured, both agents and local residents, but the injuries had not been very serious, with the exception of those sustained by Susana Ciorcan. Comparing the conclusions of Susana Ciorcan’s forensic medical certificate with the statements of the individuals involved in the incident, the prosecutor concluded that the officers under investigation did not intend to take the victim’s life, stating that “the agents’ intention had obviously been to discourage the large number of people gathered there, not to kill them”. The prosecutor’s decision also stated that: “This lack [of intent] may also be deduced from the approach taken – the person concerned was not targeted, we are dealing with a random shooting ...The acts of the above-mentioned [individuals] might constitute the offence of causing serious bodily harm ... with respect to Susana Ciorcan.” 38. The person who shot Susana Ciorcan or the type of bullet which cause her injuries were not identified and no explanation was given in this regard. The officers who fired their guns were not clearly identified in the decision either. 39. The Mureş prosecutor also acknowledged that twenty-seven victims had filed a criminal complaint requesting the investigation of the special force officers for the crimes of abusive conduct and causing serious bodily harm. Therefore, he ultimately decided that the investigation for the crimes of abusive conduct and causing serious bodily harm under Articles 180 and 182 of the Criminal Code should be continued by the Prosecutor’s Office of the Reghin District Court (“the Reghin prosecutor’s office”). 40. Susana Ciorcan’s representative lodged an appeal with the hierarchically superior prosecutor against the Mureş prosecutor’s decision of 16 January 2007. The core of his complaint was that the perpetrator had not been identified and that the evidence (expert reports) adduced to the file, which proved that there had been guns there that day which had not only used rubber bullets but also live ammunition, had been completely ignored. The State agents should have been aware that the use of such ammunition could have resulted in the death or fatal injury of the people they had shot at. Furthermore, not only had the perpetrator not been identified, no steps had been taken to establish whether Susana Ciorcan had been shot by a rubber bullet or a regular one. 41. On 29 June 2007 the appeal was dismissed as ill-founded by the Prosecutor’s Office of the Târgu Mureş Court of Appeal. The investigation was considered to have been properly conducted. 42. Susana Ciorcan’s representative also lodged a complaint with the Mureş County Court, stating that the prosecutor had not considered all the evidence in the file and had mainly relied on the version of events as presented by the State agents. He then reiterated the argument that the use of live ammunition shot at random should have made identifying those who had fired the shots a necessity. A ballistic report was also required in this regard. Attention was brought to two of the agents’ statements, one of them made by Mureş County police officer S.C.L., who said that “neither I nor any of my colleagues in our vehicle attacked the Roma or were attacked by them”. This was confirmed by M.M., who admitted that he had not been hurt at all. In another piece of evidence it was mentioned that none of the blunt objects allegedly used to damage the State agents’ vehicles had been found at the scene of the incident. In such circumstances, the conclusions drawn by the prosecutor appeared unfounded. 43. The complaint also claimed that there had been racist motives behind the ill-treatment Ms Ciorcan and the rest of the victims had been subjected to, with a request that this allegation be clarified. In this respect, relying on the Court’s case-law in Nachova and Others v. Bulgaria ([GC], nos. 43577/98 and 43579/98, ECHR 2005‑VII) Ms Ciorcan’s representative complained that the disproportionate reaction of the State agents towards Ms Ciorcan and the rest of the victims constituted discrimination and together with the subsequent ineffective investigation were in breach of Articles 2 and 14 of the Convention. 44. On 3 July 2008 the Mureş County Court, basing its decision on the documents in the prosecutor’s investigation file, dismissed the complaint, holding that the prosecutor’s decision of 16 January 2007 had been correct. The existence of possible racist motives behind the victims’ ill-treatment had not been analysed by the court. 45. The applicants’ representative lodged an appeal on points of law against this decision, reiterating all the complaints submitted before the first‑instance court, and requesting that a further investigation for serious first-degree murder also be conducted, under Article 176 of the Criminal Code. 46. On 26 July 2008 Susana Ciorcan died at the age of fifty-six, two years after the incident. The proceedings were continued by her sons and daughters: Costel Ciorcan, Sorin Ciorcan, Carol Ciorcan, Sonia Biga, Ildiko Kalanyos (Biga), Augustin Biga and Edith Csiki (Biga). 47. The Târgu Mureş Court of Appeal dismissed the appeal by final decision of 19 November 2008, holding that the first-instance court had meticulously analysed the file and correctly concluded that there had been no intention to commit the offences under investigation, the agents having acted in accordance with the standard procedure regulating that kind of intervention. 2. Investigation for abusive conduct 48. Following the Mureş prosecutor’s decision to relinquish jurisdiction, a criminal investigation was launched by the Reghin prosecutor’s office for abusive conduct, under Article 250 of the Criminal Code. 49. The prosecutor questioned the State agents, who reiterated their previous statements. Eleven of the applicants amongst the twenty-seven victims who had filed the complaint on 3 October 2006 also made statements. Two of them had also made a statement to the Mureş prosecutor. The applicants Ancuţa-Maria Moldovan and Liviu Bucunea Jr alleged that the special forces officers had shouted: “go inside your house or I will kill you” and “go inside your house or I will blow your brains out” respectively. 50. The prosecutor also questioned eight other Roma victims, who had not made statements to the Mureş prosecutor’s office. They expressed their wish for the individuals who assaulted them to be held liable for their actions and declared that they would be claiming compensation in that regard. 51. On 16 July 2007, upholding the same facts as established in the decision issued by the Mureş prosecutor’s office, the Reghin prosecutor issued a decision not to bring charges against the seven officers under investigation, concluding that they had acted in self-defence, which under Article 10(1)(e) of the Code of Criminal Procedure eliminated the criminal element of the acts committed. In connection with the course of events, the decision started by repeating the Mureş prosecutor’s office findings that: “... superior officers from the Mureş County police ... pointed out that the scene could not be reached because there were a large number of people (several hundred) armed with bats, pitchforks, axes and scythes and the law-enforcement authorities could not secure the area ... Almost immediately upon arriving at the scene, several local residents started to gather and a fight broke out between them and members of the DIAS.” 52. Also referring to the facts, the decision mentioned that the special forces officers declared they had been grouped together during the incident, while quoting in support of this finding the statement made by H.D.M., who stated that they had initially been grouped together but had disbanded on being attacked by fifteen to twenty Roma each. 53. In order to substantiate the decision, the prosecutor first listed the injuries suffered by the State agents as follows: “H.D.M. was hit in the legs and the face, and according to the medical certificate ... suffered injuries which required eight to nine days of medical care; M.F. was hit in the right shoulder, in both cheeks, above the left temple, the right leg above the knee and all fingers, and according to his medical certificate ... suffered injuries which required eight to nine days of medical care; G.P.J. was hit with a stick in the legs and then immediately with a stone or a brick in the head, and according to his medical certificate ... suffered injuries which required seven to eight days of medical care; V.M. was hit with a stone in the head, and according to his medical certificate ... suffered injuries which required five to six days of medical care; C.I. was hit in the ribs, the right ankle, the tibia and calf of the right leg and the left shoulder area, and according to his medical certificate ... suffered injuries which required twelve to fourteen days of medical care; S.P. was hit in the legs, the head, the back and the hands, and according to his medical certificate ... suffered injuries which required eight to nine days of medical care.” 54. The prosecutor then gave details of the gunshot injuries suffered by thirteen Roma victims, including Susana Ciorcan, who was held to have been shot in the back. 55. Further on, the prosecutor listed the damage sustained by the vehicles used by the police officers to get to the Apalina neighbourhood on the day of the incident, namely cracks in the windscreen or side windows, scratches and bumps. 56. In view of the above elements and citing parts of the statements made by the special forces officers, the prosecutor concluded that the State agents could not be held liable for abusive behaviour as they had acted in self-defence. 57. Neither the officers who fired their guns nor the person who shot Susana Ciorcan were identified, nor was any explanation given in this regard. 58. The applicants’ representative complained against the 16 July 2007 decision on behalf of the same twenty-seven victims who had joined the criminal proceedings on 3 October 2006 (see paragraph 22 above). He alleged that the incident had been caused by the authorities’ lack of adequate preparation for their operation, the purpose of which had been to summon two individuals to appear before the prosecutor for the investigation of an alleged non-violent offence. He further complained that only the alleged perpetrators’ statements had been used as a basis for the prosecutor’s decision, and had disproportionately referred to the evidence favourable to them, without making the slightest attempt to try and identify who had fired their guns or the type of ammunition used. In addition, he complained that the prosecutor’s decision had completely failed to mention certain crucial elements, in particular the severity of the injuries inflicted by the State agents on the victims. Furthermore, the number of days of recommended medical treatment in the medical reports could not be relied on when determining the seriousness of the injuries suffered by the victims. For example, several applicants who were shot were considered to require the same number of days of medical care as State agents whose injuries had been visibly less serious. 59. On 31 August 2007 the complaint was rejected and the decision not to bring charges was upheld by the chief prosecutor. 60. The applicants’ representative contested the prosecutor’s decision before the Reghin District Court on behalf of the same twenty-seven victims who had joined the criminal proceedings on 3 October 2006 (see paragraph 22 above). He asked the court to order a reopening of the criminal investigation in order to efficiently identify the perpetrators and bring them to justice. He drew the court’s attention to the extraordinary and urgent deployment of police forces (two hours after the commission of the alleged offence) in order to serve two summonses which are normally sent by post, a situation which would never happen in cases involving non-Roma people. 61. On 16 July 2008 the Reghin District Court, basing its decision on the documents in the prosecutor’s investigation file, dismissed the complaint, holding that the prosecutor’s decision of 16 July 2007 had been correct. In dismissing the complaint, the court briefly stated that even if guilt had been established, the application of Article 44 of the Criminal Code (self‑defence) made it necessary for the prosecutor to adopt the decision not to bring charges. 62. The applicants lodged an appeal on points of law with the Mureş County Court, but it was dismissed on 12 February 2009. 63. Meanwhile, on 3 November 2008 the representative of the applicants Ana Maria-Paula Bidi (Beica), Denes Biga, Erika Biga, Iosif Biga Snr, Iosif Biga Jr, Ladislau Biga, Rozalia Bucunea, Carol Ciorcan, Edith Csiki (Biga), Ladislau Horvath, Petru Kalanyos Snr, Petru Kalanyos Jr, Ana Lingurar and Lela Potra, whose names were not mentioned by the prosecutor in the 16 January 2007 decision, submitted a request to the Mureş prosecutor’s office seeking information concerning the progress of their complaints against the special forces officers. On 10 December 2008 they were informed that the file concerning the death of Susana Ciorcan had been terminated with a decision not to bring charges, and that the investigation for the alleged abusive conduct on the occasion of the incident of 7 September 2006 was currently under way with the Reghin prosecutor’s office. They were informed that the statements they had made to the Mureş prosecutor had also been forwarded to the Reghin prosecutor’s office. Following this reply, the fourteen applicants submitted a request to the Reghin prosecutor’s office detailing their situation and seeking information about the current status of their complaints. On 31 July 2009 they received a reply, informing them that they had failed to quote the correct case number. They were asked to provide this information in order to receive a response. 3. Disciplinary proceedings against A.M. 64. On 21 December 2006 the Disciplinary Council held a meeting to assess whether A.M., the officer who ran the operations on behalf of the Mureş County police, had breached police disciplinary rules when fulfilling the order of 7 September 2006 given by his chief. 65. According to the minutes of the meeting, the Council heard evidence from A.M., as well as a witness in his defence, A.A., the prosecutor in charge of the investigation of the complaint for insulting behaviour filed by R.O. 66. In his statement A.M. first described the circumstances leading up to the incident. He stated that: “After a discussion with officer R.O., during which he told me about the incident that took place on the terrace of the “Ceres” bar in Reghin, I asked him to prepare a written report. Because it was not clear whether a crime had been committed, I decided that a team of officers should go to the bar in order to find witnesses and take statements from them, while I, together with another team, should go to the Apalina neighbourhood to take statements from the two suspects ...” He further described how the special forces agents were attacked by the “Roma”, while A.A. told the Council: “I consider that it was the strange reaction that Roma people have on seeing police cars or policemen that led to the clash that day.” 67. The Disciplinary Council unanimously decided that the policeman under investigation was innocent. F. Outcome of the investigation for insulting behaviour 68. The complaint for insulting behaviour filed by R.O. on 7 September 2006 was dismissed at a later date by the prosecutor, since at the time of the incident R.O. had been off-duty and had not been acting in his official capacity, and there had been no physical violence between the parties. 69. The two summonses which justified the police operation of that day were never served on the two suspects, who were never questioned by the prosecutor in connection with the complaint filed by R.O. II. RELEVANT DOMESTIC LAW AND PRACTICE 70. A detailed presentation of the relevant legal provisions concerning the use of firearms can be found in the case of Soare and Others v. Romania (no. 24329/02, § 94, 22 February 2011). 71. The organisation and functioning of the special forces units was regulated at the relevant time by Order no. S 227031/2000 issued by the General Police Inspectorate, which is a classified document. 72. On 5 September 2003 the General Police Inspectorate issued Order no. 290 on the standard procedure to be followed by special intervention units, which was made available to the prosecutor for the purposes of the domestic investigation. In accordance with this Order, the responsibility of the special forces police is to support the ordinary police in hostage and kidnapping situations or in the search and apprehension of extremely dangerous criminals or criminals armed with firearms. The relevant provisions of the above-mentioned Order are as follows: Article 2 With effect from the date of the present Order, activities concerning the freeing of hostages, on a national scale, which were under the competence of the Romanian police, shall fall within the competence of the Independent Service for Special Interventions and Actions. Article 3 In independently undertaking police activities on their territory of competence, the intervention units shall: ... c) disclose their identity and official capacity as well as the purpose of the stopping or questioning (scopul interpelării) ... f) use force and other equipment gradually, starting with the simplest measures [escalating to] the measures which require using the weaponry supplied. g) act without discriminating persons on grounds of race, citizenship, sex, religion, political affiliation, social status, or any other ground. Article 4 In exercising police activities in cooperation with other police units, particularly in the search or apprehension of extremely dangerous criminals, the following rules shall be observed: ... d) before the start of the activity all participants shall meet in order to be instructed about the purpose, place and duration of the activity, the measures of protection and identity of the persons involved, ways to secure the perimeter, the investigative, intervention and reserve teams, and anything else which might be a factor to the proper conduct of the activity. 73. The applicable legal provisions of the Romanian Criminal Code are as follows: Article 44 – Self-defence (1) An act proscribed by criminal law which is committed in legitimate self-defence does not constitute a criminal offence. (2) A person acts in legitimate self-defence when he or she commits the act in order to remove a material, direct, immediate and unjust attack against him, some other person or a general interest endangering the person or the rights of the one attacked or the general interest ... (3) An act proscribed by criminal law committed in excess of the limits of self‑defence but proportional to the seriousness of the danger and the circumstances of the attack shall not be considered an offence if the limits were exceeded because of the person’s confusion or fear. Article 174 – Murder (1) Murder of a person shall be punishable by ten to twenty years’ detention and the prohibition of certain rights. (2) Attempted murder is also punishable. Article 175 – First-degree murder (1) Murder committed in one of the following circumstances: ... (i) in public shall be punishable by fifteen to twenty-five years’ detention and the prohibition of certain rights. (2) Attempted first-degree murder is also punishable. Article 176 - Serious first-degree murder (1) Murder committed in one of the following circumstances: ... g) by a magistrate, police officer, gendarme or member of the military, during or in connection with the fulfillment of their service or public duties, shall be punishable by life imprisonment or fifteen to twenty-five years’ imprisonment and the prohibition of certain rights. (2) Attempted murder is also punishable. Article 180 – Hitting or other forms of violence (1) Hitting or any other act of violence causing bodily harm shall be punishable by one to three months’ imprisonment or by a fine ... Article 181 – Bodily harm (1) Acts causing bodily harm or injury to health needing medical care of up to sixty days shall be punishable by six months to five years’ imprisonment ... Article 182 – Serious bodily harm (1) Acts causing physical harm or injury to health needing medical care of more than sixty days shall be punishable by two to seven years’ imprisonment. (2) A punishment of two to ten years’ imprisonment shall be imposed if the act caused one or more of the following consequences: loss of a sense or organ, cessation of their operation, a permanent physical or mental disability, mutilation, abortion or the person’s life being put in danger. Article 239 – Insulting behaviour (1) A threat, direct or through a direct means of communication against a public servant exercising a position of State authority, during the exercise of his functions or for acts performed in the exercise of his functions shall be punishable by six months to two years’ imprisonment or by a fine. (2) Hitting or any other violence against a public servant who is exercising a position of State authority, during the exercise of his functions or for acts performed in the exercise of his functions, shall be punishable by three months to three years’ imprisonment or by a fine. Article 250 – Abusive conduct (1) A public servant who verbally abuses a person while on duty shall be punished by one month to one year’s imprisonment or by a fine; (2) A public servant who threatens a person while on duty shall be punished by six months to two years’ imprisonment or by a fine; (3) A public servant who hits or otherwise behaves violently towards a person while on duty shall be punished by six months to three years’ imprisonment or by a fine; (4) A public servant who causes serious bodily harm to a person while on duty shall be punished by three to twelve years’ imprisonment. 74. Excerpts from the relevant provisions of the Romanian Code of Criminal Procedure concerning the procedure for complaining against a prosecutor’s decisions are set out in the case of Stoica v. Romania no. 42722/02, §§ 43 and 45, 4 March 2008. III. RELEVANT INTERNATIONAL INSTRUMENTS AND OTHER REPORTS A. United Nations sources 75. Excerpts from the relevant parts of the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials can be found in the case of Soare and Others (cited above, § 102). 76. The United Nations Committee on Elimination of Racial Discrimination in its 2010 Annual Report held with respect to the situation of Roma in Romania the following: (15) The Committee notes with concern the excessive use of force, ill-treatment and abuse of authority by police and law enforcement officers against persons belonging to minority groups, and Roma in particular. It is also concerned about the use of racial profiling by police officers and judicial officials. B. Council of Europe sources 77. The Council of Europe’s Advisory Committee on the Framework Convention for the Protection of National Minorities published an opinion on 23 February 2006 regarding Romania’s compliance with that Convention. The relevant parts of the opinion concerning respect of its Article 6 on tolerance and intercultural dialogue read as follows: 101. Although there has been significant improvement following the efforts made by the authorities, there continue to be reports of inappropriate behaviour by certain police members vis-à-vis persons belonging to the Roma community, in some cases involving violence, although such reports are now much less frequent. Non‑governmental sources also indicate that there are shortcomings in the judicial investigations and prosecution of such incidents. 102. Despite the fact that the Ministry of the Interior has special investigation procedures and a special body to deal with complaints of abuse by police members and to apply sanctions where appropriate, the Advisory Committee notes that there are concerns with regard to the impartiality of such investigations ... 104. The authorities should identify the most appropriate solutions to ensure efficient and impartial investigation of complaints against members of the police forces. Additional measures should be taken to train and inform members of the legal profession to ensure that legislation on discrimination and the provisions of the Criminal Code regarding the fight against racism and intolerance are fully applied. 78. The Council of Europe High Level Meeting on Roma in October 2010 adopted the “Strasbourg Declaration on Roma”. Under the heading “Access to justice”, the Declaration recommends that member States: “(27) Ensure timely and effective investigations and due legal process in cases of alleged racial violence or other offences against Roma. (28) Provide appropriate and targeted training to judicial and police services.” 79. In a letter addressed to the Romanian Prime Minister on 17 November 2010 the Council of Europe’s Commissioner for Human Rights expressed particular concerns that Roma continue to face pervasive discrimination in Romania. The Commissioner also stated, inter alia, that “anti-Roma rhetoric is present in domestic political discourse. Some politicians have made stigmatising statements, among others linking Roma with criminality, blaming this population for not trying to integrate, and referring to popular stereotypes.” 80. On 1 February 2012 the Committee of Ministers of the Council of Europe adopted a Declaration on the rise of anti-Gypsyism and racist violence against Roma in Europe in which deep concerns are expressed with respect to the fact that “In many countries, Roma are subject to racist violence directed against their persons and property. These attacks have sometimes resulted in serious injuries and deaths. This violence is not a new phenomenon and has been prevalent in Europe for centuries. However, there has been a notable increase of serious incidents in a number of member States, including serious cases of racist violence, stigmatising anti-Roma rhetoric, and generalisations about criminal behaviour.” C. International documents on the situation of Roma in Romania 81. In its 2007 country report on Romania Amnesty International set out in detail the incident in Apalina when commenting on the police’s attitude towards Roma: “In September, violent clashes between police and members of the Romani community in Reghin, Apalina district, reportedly resulted in injuries to two policemen and 36 Romani women, men and children. The incident reportedly began when a police officer alleged that he had been assaulted by two Romani men. Shortly afterwards, a violent altercation broke out after plain-clothes police officers and masked Special Forces police officers arrived at the Apalina district, reportedly to serve two subpoenas. The police claimed they were attacked by several Roma using rocks, metal bars and pitchforks. The Roma claimed that Special Forces officers provoked the violence by using excessive force, including by firing rubber bullets and tear gas. The initial police investigation cleared the officers of any wrongdoing. In November, following a visit by two members of the European Parliament, the General Police Inspectorate opened a preliminary investigation into the incident. The investigation was continuing at the end of the year.” The report also mentioned another similar incident, while concluding that Roma continued to face intolerance and discrimination, and that allegations of ill-treatment by law-enforcement officials continued to be widespread in Romania. D. Media reports concerning the incident 82. The Romanian media reports constantly on police raids in Roma neighbourhoods, with numerous incidents involving the use of firearms by the special forces police wearing masks. Immediately after the incident, several national newspapers and news agencies reported about the clash between the police and the inhabitants of the Apalina neighbourhood. 83. Newspapers such as Adevărul and Evenimentul Zilei published, in their online editions, the articles “War between the Roma and the police” and “City of violins, loud with shootings”, which quoted sources from the police and gave statistics about the number of crimes allegedly committed by the Roma from Apalina over the years. Several newspapers and news agencies quoted police sources, saying that firearms had been used because the Roma had been trying to disarm the police officers (Evenimentul Zilei and 9AM.ro news agency). Some of them even referred to the “violent incident” as a “new Hădăreni” (amosnews.ro). 84. In an article posted on its website on 19 September 2006, the Hotnews agency mentioned that two Hungarian members of the European Parliament, Victoria Mohacsi and Katalin Levai, had expressed their concern about the incidents and had announced a visit to the Apalina neighbourhood. 85. In an article posted on its website on 14 September 2006 entitled “A new clash between Roma and the police”, the Divers news agency reported that the excessive use of force by the police in Roma communities was recurrent in Romania. THE LAW I. JOINDER OF THE APPLICATIONS 86. Having regard to the similar subject matter of the applications, the Court finds it appropriate to join them in a single judgment, in accordance with Rule 42 § 1 of the Rules of Court. II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 87. The applicants Sonia Biga, Augustin Biga, Carol Ciorcan, Sorin Ciorcan, Costel Ciorcan, Edith Csiki (Biga) and Ildiko Kalanyos (Biga), namely the sons and daughters of the deceased Susana Ciorcan, complained that the State agents had used excessive force against their mother, which had put her life in danger, and that the national authorities had failed to subsequently conduct an adequate and effective investigation. They relied on Article 2 of the Convention, which reads as follows: “1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” A. The parties’ submissions 1. The applicants 88. The applicants firstly submitted that although the force used against Ms Ciorcan had not been lethal, it did not exclude the applicability of Article 2 of the Convention in the present case. They referred in this connection to the case of Makaratzis v. Greece (no. 50385/99, ECHR 2004‑XI). 89. Secondly, they submitted that in the specific circumstances of the case, the use of firearms had not been “absolutely necessary” in order to achieve the aims set out in Article 2 § 2 of the Convention. They pointed out that the presence of the special forces officers in Apalina had not been lawful, since there had been no pre-existing factors which could have led to the presumption that the inhabitants of the neighbourhood would become aggressive towards the employees of the local police and, according to the statements of the police officers involved, the people started gathering around their vehicles only upon their arrival in the neighbourhood. The applicants pointed out that the people gathered in the street at the time of the incident, including themselves, had not been carrying any weapons and had not attacked the police officers and, therefore, the response of the State agents had been disproportionate since, besides the tear gas sprays and grenades, they had also used rubber bullet weapons and hunting guns with metal bullets. 90. The applicants emphasised that their mother, who had not been a wanted criminal and had not attacked the police officers, had been shot in the back while running towards her house and that, according to her medical certificate, her life had been endangered by her injuries. 91. Lastly, the applicants submitted that the authorities had failed to fulfill their procedural obligation under Article 2 to carry out an effective investigation into the potentially lethal use of force. The applicants identified in this connection a series of shortcomings in the investigation. They claimed that the investigation had not been impartial since the individuals who had carried out the investigative measures under the supervision of the case prosecutor had been colleagues of the officers under investigation within the Mureş County police. They also argued that the authorities had failed to identify both the police officer who shot Ms Ciorcan and the type of bullet which caused her injuries. Taking into account the conclusion of her medical report, which stated that her life had been endangered by the shooting injury, the applicants averred that their mother had been shot with a firearm carried by the officers who were equipped with live ammunition, but this possibility was not analysed by the investigators. The applicants also submitted that the investigation had been inadequate, as it had failed to clarify the facts, and had put undue emphasis on the statements of the alleged perpetrators. 2. The Government 92. The Government contended that the use of force had been absolutely necessary within the meaning of Article 2 § 2 (a) of the Convention. They emphasised that the use of force had been justified, on account of the aggressiveness of the crowd. The State agents had no intention of killing anyone as they had only used defensive weapons, such as paralysing sprays and grenades, bats, and hunting weapons with rubber bullets. They argued that the context of the operation should also be taken into account when analysing the State agents’ acts, namely that two people had been accused of beating up a police officer and had to be summoned for investigation. Even so, the State agents had discharged their duties whilst minimising to the greatest extent possible the risk to life, by using verbal warnings and firing warning shots in the air before shooting at the crowd. They also pointed out that special forces officers had also been seriously wounded in the incident. 93. The Government also contended that the actions taken had been lawful under domestic law, which is formulated with sufficient precision in order to be predictable for its citizens. 94. The Government further submitted that there had been no inadequacies in the domestic investigation, which had been prompt and thorough. They stressed that shortly after the incident, the prosecutor had initiated an investigation. Numerous statements had been taken from the individuals who had filed complaints against the State agents, a thorough search had been conducted of the scene and complete expert examinations had been carried out in order to assess the forensic evidence on the clothes handed over by the victims and the weapons used during the clash. 95. The Government concluded that, unlike in the case of Stoica (cited above), in the instant case the domestic authorities did not deny that violence had been inflicted on the applicants, but found that their injuries had been caused by the State agents in self-defence, and therefore had not constituted abusive conduct. B. Admissibility 96. The Court notes that the applicability of Article 2 of the Convention is not disputed between the parties. However, it must examine of its own motion the extent of its competence ratione materiae. 97. In the present case, the force used against Ms Ciorcan was not, in the event, lethal. This, however, does not exclude in principle an examination of the applicants’ complaints under Article 2, the text of which, read as a whole, demonstrates that it covers not only intentional killing but also situations where it is permitted to use force which may result, as an unintended outcome, in the deprivation of life. In fact, the Court has already examined complaints under this provision where the alleged victim had not died as a result of the impugned conduct (see Ilhan v. Turkey [GC], no. 22277/93, § 75, ECHR 2000-VII; Makaratzis, cited above, § 49; and Soare and Others, cited above, § 108). 98. Nevertheless, the case-law establishes that it is only in exceptional circumstances that physical ill-treatment by State agents which does not result in death may disclose a violation of Article 2 of the Convention. In this connection, the degree and type of force used and the intention or aim behind the use of force may, among other factors, be relevant in assessing whether a particular case falls within the scope of the safeguard afforded by this Article (see Makaratzis, cited above, § 51). 99. In the present case, it is not disputed that Ms Ciorcan was shot by State agents during a police operation and that a medical certificate attested to the fact that the injuries had endangered her life and required surgical intervention as well as forty to forty-five days of subsequent medical treatment (see paragraph 16 above). 100. The Court likewise accepts the Government’s submission that the State agents had not intended to kill Ms Ciorcan. It observes, however, that the fact that the latter was not killed was fortuitous, taking into account the findings of the forensic medical examination which listed, among others, haemorrhagic shock, peritonitis and rupture of the iliac vein. The seriousness of these injuries is not in dispute between the parties. 101. In the light of the above circumstances, and in particular the degree and type of force used, the Court concludes that, irrespective of whether or not the police actually intended to kill her, Ms Ciorcan was the victim of conduct which, by its very nature, put her life at risk, even though, in the event, she survived (see Soare and Others, cited above, § 109). 102. Article 2 is thus applicable in the instant case. 103. The Court considers that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. The Court further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. C. Merits 1. Alleged failure of the authorities to protect the right to life (a) General principles 104. Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted. Together with Article 3, it also enshrines one of the basic values of the democratic societies making up the Council of Europe. The circumstances in which deprivation of life may be justified must therefore be strictly construed (see Makaratzis, cited above, § 56). The object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective (see McCann v. the United Kingdom, no. 19009/04, §§ 146-47, ECHR 2008). 105. The first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps within its internal legal order to safeguard the lives of those within its jurisdiction (see Soare and Others, cited above, § 127). This involves a primary duty on the State to secure the right to life by putting in place an appropriate legal and administrative framework to deter the commission of offences against the person, backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. 106. As the text of Article 2 itself shows, the use of lethal force by police officers may be justified in certain circumstances. Nonetheless, Article 2 does not grant a carte blanche. Unregulated and arbitrary action by State agents is incompatible with effective respect for human rights. This means that, as well as being authorised under national law, policing operations must be sufficiently regulated by it, within the framework of a system of adequate and effective safeguards against arbitrariness and abuse of force (see, Makaratzis, cited above, § 58), and even against avoidable accident. 107. In view of the foregoing, and in keeping with the importance of Article 2 in a democratic society, the Court must subject allegations of a breach of this provision to the most careful scrutiny, taking into consideration not only the actions of the agents of the State who actually administered the force but also all the surrounding circumstances, including such matters as the planning and control of the actions under examination (see McCann and Others, cited above, § 150). In the latter connection, police officers should not be left in a vacuum when performing their duties, whether in the context of a prepared operation or a spontaneous chase of a person perceived to be dangerous: a legal and administrative framework should define the limited circumstances in which law-enforcement officials may use force and firearms, in the light of the international standards which have been developed in this area (see Hamiet Kaplan and Others v. Turkey, no. 36749/97, § 49, 13 September 2005). (b) Application of these principles to the present case 108. Against this background, the Court must examine in the present case not only whether the use of potentially lethal force against the applicants’ mother was legitimate but also whether the operation was regulated and organized in such a way as to minimise to the greatest extent possible any risk to life. 109. The Court recalls that Susana Ciorcan was shot on 7 September 2006 in her courtyard by a State agent during a police search for two individuals suspected of insulting behaviour towards an off-duty police officer in a bar. The forensic certificate of 11 October 2006 concluded that she had suffered multiple injuries and that her life had been endangered by this shooting. At the time of the shooting she was neither armed nor did she attack any of the police officers or special forces officers present in any way. The Court notes that these facts are not contested by the parties. 110. In order to decide whether the operation was regulated and organised in such a way as to minimise to the greatest extent possible any risk to life, the Court will take account of the operation as a whole and will firstly analyse whether the presence of the special forces was necessary and justified at the scene of the incident. 111. In this connection, the Court notes that, according to the legal provisions available at the time, special forces units were responsible for offering support to the ordinary police in hostage and kidnapping situations, or those involving extremely dangerous criminals or criminals armed with firearms. However, turning to the facts of the case, no justification of an imminent danger was given in the operation order completed by the chief of the special forces unit (see paragraph 7 above). It is not disputed between the parties that it was the chief of the Mureş County police who requested their assistance, claiming that a large number of people armed with bats, pitchforks, axes and scythes had been blocking the way and that the authorities could not secure the area. However, according to the statements of all the State agents involved, the inhabitants of the neighbourhood started gathering in the street only upon the arrival of the police vehicles. Moreover, the officers from the Mureş County police declared that they had not been aware that the Roma from Apalina might commit violent acts (see paragraph 28 above). In addition, the Government submitted no information as to whether the police had reason to suspect that the people from Apalina might be armed with firearms or whether the two suspects were considered to be extremely dangerous criminals. On this point it must be noted that, in the course of the investigation that followed, the criminal records of some of the Roma victims were checked, and none of them were found to have any previous convictions for serious offences (see paragraph 24 above). 112. Under these circumstances, the Government’s assertion that the operation had been conducted in the context of summoning before the authorities two individuals accused of having beaten up a police officer must be analysed in conjunction with the statement of A.M., the police officer conducting the preliminary investigation following the complaint submitted by R.O. for insulting behaviour. A.M. told the Disciplinary Council that when the decision had been taken to go to Apalina, it had not been clear whether a crime had been committed against R.O. (see paragraph 66 above). 113. In view of the above, the Court considers that no plausible explanation was put forward in order to justify the request for the support of the special forces unit and their intervention on 7 September 2006. In these circumstances, the Court finds it unnecessary to analyse further the legal provisions regulating the operation. 114. Furthermore, with respect to the operation’s organisation, the Court observes that the possibility of the State agents being taken by surprise by the fact that a number of people had gathered in the street must be excluded, since it appears from the file that the authorities had been well aware that it was usual in Roma neighbourhoods to gather in the street out of curiosity. This conclusion results from the statement of prosecutor A.A. given at the disciplinary proceedings against A.M. (see paragraph 66 above). In this context, the Court notes that the Government did not submit any information regarding any preparatory meeting or plan with a view to conducting a secure and successful operation on 7 September 2006. Moreover, no arguments were put forward to suggest that the operation had been urgent, which might have justified the absence of preparation owing to a lack of time. Consequently, the Court considers that the authorities should have foreseen that on seeing several police vehicles and the special forces officers wearing masks, the inhabitants of the neighbourhood would gather in the street, as this would have been an unusual thing to happen in a small town. 115. In addition, the Court observes that the State agents present during the incident made contradictory statements regarding the reasons justifying the recourse to firearms. All seven special forces officers declared that they had been forced to intervene because their colleagues from the Reghin and Mureş County police were being attacked by the crowd. The officers from the Reghin and Mureş County police stated that they were not being attacked and declared, as also mentioned in the prosecutor’s decision of 16 January 2007, that a fight had broken out between the special forces officers and the people gathered in the street (see paragraphs 28-37 above). 116. Under these circumstances, the Court considers that, even if the seven police officers who were wearing special suits and were equipped with shields, tear gas sprays, grenades and pistols had had to face a dangerous situation created by the attack of the crowd, it was not sufficiently established that the attack was so extremely violent as to justify shooting at random with live ammunition and risking Ms Ciorcan’s life. 117. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 2 of the Convention under its substantial limb. In view of this conclusion, it is not necessary to examine the life-threatening conduct of the State agents under the second paragraph of Article 2. 2. Alleged lack of an effective investigation (a) General principles 118. The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see McCann and Others, cited above, § 161). 119. The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility (see Mastromatteo v. Italy [GC], no. 37703/97, § 89, ECHR 2002‑VIII). The same reasoning applies in the case under consideration, where the Court has found that the force used by the police against Ms Ciorcan endangered her life (see paragraphs 99 to 102 above). 120. The investigation must be capable, firstly, of ascertaining the circumstances in which the incident took place, and, secondly of leading to a determination of whether the force used in such cases was or was not justified in the circumstances and to the identification and punishment of those responsible. This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence. Any deficiency in the investigation which undermines its capability to establish the circumstances of the case or the person or persons responsible will risk falling foul of the required standard of effectiveness (see Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 301, ECHR 2011 (extracts)). (b) Application of these principles to the present case 121. The Court notes that in order to assess the effectiveness of the investigation into the injuries sustained by Ms Ciorcan, it needs to have a look at the investigation into the incident of 7 September 2006 as a whole. 122. It is true that, following the incident, a criminal investigation was promptly opened by the prosecutor. All the police officers present during the incident were interviewed, as were thirty-nine victims. Laboratory tests were conducted and medical reports were requested in order to collect evidence of the injuries sustained by both sides. 123. However, the Court observes that there were striking omissions in the conduct of the investigation. It attaches significant weight to the fact that the domestic authorities failed to identify which policemen fired their guns, in particular which officer shot Ms Ciorcan. In this respect, the Court notes that the flagrant contradiction between the statements of the special forces officers on the number of State agents who fired their guns, had not been analysed by the prosecutor. Hence, officer P.Ş., the head of the special forces unit, mentioned in his statement given before the Mureş prosecutor that, besides V.M., two of his colleagues had fired their guns (see paragraph 30 above). However, only officer C.I. admitted in his statement that he had fired his gun (see paragraphs 32-36 above). 124. Moreover, it is remarkable that it was not identified by way of an expert report whether Ms Ciorcan was shot with a rubber or metal bullet. This omission is more problematic in the context of the failure to identify who fired the two metal bullets found at the scene of the incident. Furthermore, according to the forensic medical certificate, Ms Ciorcan had been shot front-on while the applicants claimed, in accordance also with her statement, that she had been shot in the back when she was running towards her house. In its decision of 16 July 2007 the prosecutor also held that she had been shot in the back (see paragraph 55 above). The Government did not provide any explanation as to these conflicting versions. 125. The Court further notes that the investigation concerning Ms Ciorcan was terminated on the grounds that she had been injured as a result of a random shooting and that the police officers, who only used non-lethal weapons, had had no intention of killing her. However, the conclusion that only non-lethal weapons were used is challenged by the gravity of the injuries suffered by Ms Ciorcan and the conclusion of the forensic medical report in her respect. The Court also notes that although the prosecutor concluded that the acts of the alleged perpetrators might have constituted serious bodily harm against Ms Ciorcan, the subsequent investigation regarding that offence did not address or analyse her situation at all, and focused on the situation of self-defence the officers were considered to be in, against the rest of the victims (see paragraphs 49-57 above). No plausible explanation for the above omissions was ever provided by the Government. 126. Lastly, the Court cannot overlook the fact that the investigation authorities did not address the issue of the planning and control of the operation. In particular they did not investigate whether the presence of the special forces officers at the place of the incident was necessary and in accordance with the law or whether any special measures had been planned in advance in order to cope with the specific known attitude of the persons they were going to encounter (see paragraph 66 above, and, mutatis mutandis, Shchiborshch and Kuzma v. Russia, no. 5269/08, § 258, 16 January 2014). 127. Having regard to the above considerations and the investigation’s failure to address such crucial points, the Court concludes that it fell short of being “thorough” as required by Article 2. There has accordingly been a violation of Article 2 of the Convention in that regard. III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 128. All the applicants, with the exception of Sonia Biga, Augustin Biga and Sorin Ciorcan, complained that they had been victims of serious bodily harm which had put their lives in danger, and which had been inflicted upon them by State agents in breach of Articles 2 and 3 of the Convention. They further complained that the authorities had failed to conduct an effective investigation and to give them a fair trial into their above-mentioned allegations, in breach of Articles 2, 3 and 6 § 1 of the Convention. 129. The Court notes that it has already accepted the Government’s argument that the police had not intended to kill the applicants. In addition, unlike in Susana Ciorcan’s case, the applicants did not provide the Court with medical certificates stating that their life might have been endangered by the injuries they sustained. Therefore, in light of the above circumstances and taking into account the degree and type of force used against the applicants, the Court considers that the applicants’ complaints must be examined exclusively in the light of the provisions of Article 3 of the Convention (see, mutatis mutandis, Acar and Others v. Turkey, nos. 36088/97 and 38417/97, §§ 77-79, 24 May 2005, and Şandru and Others v. Romania, no. 22465/03, §§ 51-54, 8 December 2009). Article 3 of the Convention reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 130. The Government submitted that the complaint under Article 3 of the Convention should be declared inadmissible for failure to exhaust domestic remedies with respect to fourteen of the applicants, namely Ana Maria-Paula Bidi, Denes Biga, Erika Biga, Iosif Biga Snr, Iosif Biga Jr, Ladislau Biga, Rozalia Bucunea, Carol Ciorcan, Edith Csiki (Biga), Ladislau Horvath, Petru Kalanyos Snr, Petru Kalanyos Jr, Ana Lingurar and Lela Potra. The Government contended that these applicants failed to join the rest of the applicants in contesting the Reghin prosecutor’s decision of 16 July 2007 before the superior prosecutor and subsequently before the Mureş County Court. 131. The above-mentioned applicants replied that, not being represented by lawyer, they had said in their initial statements to the Mureş prosecutor’s office that they were thereby submitting complaints against the special forces officers who subjected them to ill-treatment and claiming compensation in that regard. However, their complaints were not recorded and in the prosecutor’s decision of 16 January 2007 only the twenty-seven victims who had filed the complaint through their legal representative were mentioned. Hence their complaints had never been addressed by the authorities. 132. The Court notes that the above-mentioned applicants were informed that their statements had been forwarded to the Reghin prosecutor’s office and that, after an exchange of letters, they did not attempt to pursue their request for information concerning the status of their complaints any further (see paragraph 63 above). They also did not join the rest of the applicants in appealing against the decision not to bring charges issued on 16 July 2007 by the Reghin prosecutor’s office, where they could have raised their complaints. 133. In view of the above, the Court considers that the complaint under Article 3 in respect of the above-mentioned fourteen applicants must be rejected for non-exhaustion of domestic remedies in accordance with Article 35 §§ 1 and 4 of the Convention. 134. Lastly, the Court considers that the complaint under Article 3 as raised by the applicants Stefan Bidi, Margareta Biga, Liviu Bucunea Jr, Etelka Capo, Costel Ciorcan, Agneta Csiki, Lia Gabor, Ana-Narcisa Gorcs, Ildiko Kalanyos (Biga), Susana Kalanyos, Traian Kovacs, Ancuţa Maria Moldovan, Mihai Moldovan Jr, Lajos Panta, Violeta Pusuc, Edith Racz, Cornelia Simion, Ianos Ştefan, Ana Tina Snr and Ana Tina Jr is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. The Court further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions 135. The applicants complained that they had been subjected to inhuman and degrading treatment which was severe enough to reach the threshold of Article 3, since it might have endangered their lives. They stressed that they had not attacked the police and, on the contrary, that they had been attacked and had found themselves in a situation of self-defence. 136. The Government did not dispute that the applicants’ injuries had been sufficiently serious as to amount to ill-treatment within the scope of Article 3 of the Convention. However, in the Government’s view, the responsibility of the State could not be engaged in the current case since the domestic investigation had concluded that the use of force had been justified and that the State agents had acted in self-defence. 137. With respect to the complaint concerning the lack of an effective investigation, both the applicants and the Government reiterated the allegations they submitted in the complaint under Article 2 of the Convention (see paragraphs 91-95 above). 138. In addition, the applicants stressed that the investigation had failed to identify which police officer had fired his gun and why several inhabitants of the neighborhood had been shot in the back, an element which, in their opinion excluded the possibility of self-defence on the part of the State agents. The applicants also submitted that the investigative authorities had failed to take statements and request forensic medical certificates from all of the victims who had filed the criminal complaint. 2. The Court’s assessment 139. As the Court has stated on many occasions, Article 3 of the Convention enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances or the victim’s behaviour (see, among other authorities, Al-Skeini and Others v. the United Kingdom ([GC], no. 55721/07, § 162, ECHR 2011). 140. The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, ECHR 2001‑III). Nevertheless, when allegations are made under Article 3 of the Convention, the Court must apply particularly thorough scrutiny – even where domestic proceedings and investigations have already taken place (see, mutatis mutandis, Ribitsch v. Austria, 4 December 1995, § 32, Series A no. 336; and Avşar v. Turkey, no. 25657/94, § 283, ECHR 2001‑VII (extracts)). 141. The Court further reiterates that in assessing evidence, it has generally applied the standard of proof “beyond reasonable doubt”. Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the Court must reach its decision on the basis of the available evidence submitted by the parties. It will thus examine the issues that arise in the light of the documentary evidence adduced in the present case, in particular, the documents lodged by the Government regarding the investigation carried out in the case, as well as the parties’ written observations (see, for example, Menteşe and Others v. Turkey, no. 36217/97, § 46, 18 January 2005). 142. In the present case, the Court notes that it is not contested that the applicants were shot by police officers, and that the treatment described by the applicants was confirmed for most of them by medical reports and reached the threshold of severity necessary for the events in question to fall within the ambit of Article 3 of the Convention. It therefore remains to be determined whether the State authorities should be held accountable under Article 3 of the Convention. 143. The Court notes that the applicants told the investigative domestic authorities that they had been attacked by the special forces officers without any provocation. However, the authorities decided to give more weight to the statements of the police officers who declared that they had acted in self‑defence, failing to clarify the contradictory statements, to identify the police officers who used their firearms or to gather sufficient documentary evidence. 144. In these circumstances the Court therefore cannot conclude “beyond reasonable doubt” that the police officers intentionally shot the applicants without being provoked, and this difficulty is on account of the authorities’ failure to clarify the facts of the case. This finding precludes the Court from making any assessment as to whether the State authorities could be held accountable for the applicants’ injuries. 145. The Court therefore finds no violation of Article 3 of the Convention under its substantive limb. 146. That being so, the Court notes, however, that the absence of evidence in support of the applicants’ allegations of ill-treatment stems to a large extent from the respondent Government’s disregard of their procedural obligations under Article 3 of the Convention (see Döndü Erdoğan v. Turkey, no. 32505/02, § 50, 23 March 2010). 147. In this respect, the Court reiterates that Article 3 of the Convention also requires the authorities to investigate allegations of ill-treatment when they are “arguable” and “raise a reasonable suspicion”. The minimum standards applicable, as defined by the Court’s case-law, include the requirement that the investigation be independent and impartial. In addition, for an investigation to be considered effective, the authorities must take whatever steps they can to secure the evidence concerning the incident including, inter alia, a detailed statement concerning the allegations from the alleged victim, eyewitness testimony, forensic evidence and, where appropriate, additional medical reports (see, in particular, Batı and Others, v. Turkey, nos. 33097/96 and 57834/00, § 134, ECHR 2004‑IV (extracts)). 148. The Court notes that in the current case, the investigation into the applicants’ allegations of ill-treatment was terminated in its preliminary phase without clarifying the course of events or the contradictory statements given by the participants. The authorities also failed to identify which of the seven police officers fired their guns, why some of the victims were shot in the back and what type of bullet injured the applicants Erika and Ladislau Biga (see paragraph 16 above). 149. The authorities held during the investigation that a group of around one hundred people had attacked the seven special forces officers with bats and stones. In this connection it must be noted that only twenty-nine victims were questioned by the prosecutor, and no other participants out of the hundred people allegedly present were identified or questioned during the investigation. In addition, no witnesses were identified and questioned during the investigation. Therefore, the number of people allegedly attacking the police officers was not undoubtedly established by the investigative authorities. Moreover, none of the objects allegedly used as weapons by the inhabitants of Apalina could be found at the scene of the incident during the search conducted by the investigative authorities. 150. The authorities also failed to request medical documents and to take statements in order to collect evidence of all the complaints of ill-treatment submitted before them. In this connection and in respect of the applicants who were unable to provide evidence of their injuries via medical reports, the Court reiterates that it has previously found violations of the procedural limb of Article 3 of the Convention in cases where the applicants were subjected to ill-treatment at the hands of State agents but did not produce medical proof themselves (see Ghiga Chiujdea v. Romania, no. 4390/03, §§ 45-49, 5 October 2010). The Court reiterates that a sufficiently detailed description of the ill-treatment allegedly suffered at the hands of State agents justifies an investigation on the part of the domestic authorities, which should include a collection of the victim’s medical reports and comply with the provisions of Article 3 of the Convention (ibid., §§ 39 and 45). 151. Therefore, in view of the above and also in light of the reasoning which led to its findings under the procedural aspect of Article 2 (see paragraphs 121-127 above), the Court finds that there has been a violation of the procedural limb of Article 3 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 152. Lastly, the applicants complained under Article 14 of the Convention taken in conjunction with Articles 2 and 3 that the police officers’ and the investigating authorities’ perception of them as Roma was a decisive factor in their attitude and acts. Article 14 of the Convention provides: “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.” A. Admissibility 153. In respect of those applicants for whom the complaints under Articles 2 and 3 were found to be admissible, the Court considers that the complaint under Article 14 in conjunction with Articles 2 and 3 of the Convention is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. The Court further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions 154. The applicants submitted that prejudice and hostile attitudes towards persons of Roma origin had played a decisive role in the events of 7 September 2006. They alleged that the police operation involving the intervention of special forces officers, as well as their subsequent unnecessary and excessive use of firearms, was due to the fact that they are of Roma origin. They claimed that the authorities had not shown that they had any reason to suspect that the inhabitants of Apalina were violent or carrying firearms, therefore the intervention of the special forces officers had only been because of their Roma ethnic origin. In addition, using seven special forces officers and six other policemen just to serve a summons which could have been delivered by post, was an excessive measure characteristic of the racist attitude the police in Romania have towards Roma. They pointed out that the Government failed to show that such operations are usually planned in similar situations concerning non-Roma people. They further argued that although they had raised their allegations that there had been racist motives behind their ill-treatment, the domestic authorities had failed to investigate those allegations. 155. Referring to the Court’s findings in the case Nachova and Others (cited above), the Government considered the applicants’ complaints of discrimination to be unsubstantiated and ill-founded. They contended that the expression of concern even by the Council of Europe’s Advisory Committee on the Framework Convention for the Protection of National Minorities about allegations of violence against Roma by Romanian law enforcement officers and the repeated failure of the Romanian authorities to remedy the situation and provide redress for discrimination so far does not suffice to consider that it has been established that racist attitudes played a role in the instant case. 2. The Court’s assessment (a) General principles 156. The Court’s case-law on Article 14 establishes that discrimination means treating differently, without an objective and reasonable justification, people in relevantly similar situations (see Willis v. the United Kingdom, no. 36042/97, § 48, ECHR 2002‑IV). Racial violence is a particular affront to human dignity and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction. It is for this reason that the authorities must use all available means to combat racism and racist violence, thereby reinforcing democracy’s vision of a society in which diversity is not perceived as a threat but as a source of its enrichment (see Nachova and Others, cited above, § 145). 157. The Court reiterates that in assessing evidence in this connection, it has adopted the standard of proof “beyond reasonable doubt”. However, it has never been its purpose to borrow the approach of the national legal systems which use that standard. Its role is not to rule on criminal guilt or civil liability but on Contracting States’ responsibility under the Convention. In the proceedings before it, the Court imposes no procedural barriers on the admissibility of evidence or pre-determined formulae for its assessment. It adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake. The Court is also attentive to the seriousness that attaches to a ruling that a Contracting State has violated fundamental rights (ibid., § 147). 158. The Court further reiterates that when investigating violent incidents, State authorities have an additional duty to take all reasonable steps to unmask any racist motives and to establish whether or not ethnic hatred or prejudice may have played a role in the events. Treating racially-induced violence and brutality on an equal footing with cases that have no racist overtones would be turning a blind eye to the specific nature of acts that are particularly destructive of fundamental rights. Failure to make a distinction in the way situations that are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention (ibid., § 160). 159. Admittedly, proving racial motivation will often be extremely difficult in practice. The respondent State’s obligation to investigate possible racist overtones to a violent act is an obligation to use its best endeavours and is not absolute; the authorities must do what is reasonable in the circumstances to collect and secure the evidence, explore all practical means of discovering the truth and deliver fully reasoned, impartial and objective decisions, without omitting suspicious facts that may be indicative of a racially induced violence (ibid.). (b) Application of the above principles to the present case 160. Faced with the applicants’ complaint under Article 14, the Court’s task is to establish whether or not racial prejudice was a causal factor in the shootings which led to the life threatening injury of Ms Ciorcan and the applicants’ ill-treatment as well as in the ensuing investigation so as to give rise to a breach of Article 14 of the Convention taken in conjunction with Articles 2 and 3. 161. The Court notes at the outset that the applicants did not refer to any specific facts in order to substantiate their claim that the violence they had sustained had been racially motivated but only referred to the excessive and unnecessary force used by the authorities against them (see Cobzaru v. Romania, no. 48254/99, § 94, 26 July 2007). 162. That being so, it may be inferred from the statement of the prosecutor A.A. (see paragraph 66 above) taken together with the order gave by the chief of Mureş County police on 7 September 2006 (see paragraph 7 above) that the Roma ethnic origin of the two searched persons and of the inhabitants of the neighbourhood was the reason for the intervention of the special forces. In this respect the Court observes that, when the decision to deploy special forces was taken, the authorities were not certain that a crime had indeed been committed and had no reasons to believe that the two suspects - or any other inhabitant of the neighbourhood - were armed or dangerous so as to require the intervention of a police force specially trained for interaction with terrorists and extremely dangerous and armed criminals. Thus, the authorities deployed a grossly excessive force in order to serve summonses to persons not known as dangerous or armed, for the investigation of a minor crime, an operation which could have been done also by post. 163. Whilst the planning of the operation and the State agents’ conduct calls for serious criticism, the Court considers, however, that these elements are of themselves an insufficient basis for concluding that the treatment inflicted on Ms Ciorcan and the applicants was racially motivated. It has thus not been established beyond reasonable doubt that racist attitudes played a role in Ms Ciorcan’s and the applicants’ treatment by the State agents. 164. On the other hand, all the above-mentioned elements, seen against the background of the many published accounts of the existence in Romania of general prejudice and hostility against Roma and of continuing incidents of police abuse against members of this community (see paragraphs 76-81 above), called for verification. Indeed, the authorities were under the obligation to investigate a possible causal link between the alleged racist attitudes and the abuse suffered by Ms Ciorcan and the applicants at the hands of the police (see B.S. v. Spain, no. 47159/08, § 60, 24 July 2012). 165. In this respect, the Court notes that the authorities investigating the incident of 7 September 2006 were aware of the fact that State agents had fired their guns with both rubber bullets and live ammunition in a populated area – the Roma district of the town – without regard for the safety of the public, a fact which led to the injury of various persons including Ms Ciorcan. However, the investigation paid no attention to this fact and the prosecutors omitted to question witnesses or the State agents involved about this. 166. Moreover, the chief of Mureş County police was not asked to explain why he had considered it necessary to require the intervention of the special forces and he was also not confronted with the contradicting statements made by his subordinates (compare with Antayev and Others v. Russia, no. 37966/07, § 127, 3 July 2014, where the Court held that, in the absence of any other explanation, the applicants’ ethnic origin was the sole, or at least the decisive, reason for the involvement of a special police service in a search conducted within an investigation of a minor offence). Furthermore, no attempt was made to verify for example whether the chief of police or the special forces officers had previously been involved in similar incidents or whether they had been accused in the past of displaying anti-Roma sentiment (see Nachova and Others, cited above, § 167). Those failings were compounded by the behavior of the prosecutors, who, as the Court has found above, disregarded relevant facts and terminated the investigation with serious shortcomings. 167. The Court thus finds that the authorities failed in their duty under Article 14 of the Convention to take all possible steps to investigate whether or not discrimination may have played a role in the events. It follows that there has been a violation of Article 14 of the Convention taken in conjunction with Articles 2 and 3 of the Convention in their procedural aspect. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 168. 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 1. Application no. 29414/09 169. The applicants Sonia Biga, Augustin Biga, Carol Ciorcan, Sorin Ciorcan, Costel Ciorcan, Edith Csiki (Biga) and Ildiko Kalanyos (Biga) claimed jointly a total amount of 2,000,000,000 euros (EUR) in respect of pecuniary and non-pecuniary damage including costs and expenses for the pain and suffering caused by the use of excessive force against their mother and the lack of a subsequent effective investigation. 170. The Government requested the Court to dismiss the applicants’ claims since they were exaggerated and unsubstantiated. 171. The Court notes that the applicants’ mother’s life was endangered by the numerous internal injuries she suffered at the hands of State agents in an operation which lacked adequate planning and organisation. It must also be noted that the applicants provided the Court with medical documents certifying that Ms Ciorcan’s life had been endangered. 172. The Court has found the authorities of the respondent State to be in breach of Article 2 taken alone and in conjunction with Article 14 on account of the above-mentioned treatment and on account of the authorities’ subsequent failure to conduct an effective investigation into the incident. In these circumstances, having regard to its previous case-law (see Makaratzis, cited above; and Nachova and Others, cited above) and to the family ties existent between the applicants and the victim, the Court considers that the applicants’ suffering and frustration cannot be compensated solely by the finding of a violation. 173. Therefore, on the basis of the above considerations and making its assessment on an equitable basis the Court awards in respect of non-pecuniary damage EUR 42,000 jointly to the above-mentioned applicants. 2. Application no. 44841/09 174. For the ill-treatment suffered at hands of State agents, the subsequent failure of the authorities to conduct an effective investigation into their complaints, the applicants requested the following amounts in respect of pecuniary and non-pecuniary damage including costs and expenses: Costel Ciorcan requested EUR 100,000; Margareta Biga and Mihai Moldovan Jr requested EUR 30,000; Liviu Bucunea Jr requested EUR 25,000; Etelka Capo, Edith Racz and Cornelia Simion requested EUR 20,000; Ştefan Bidi, Lia Gabor, Ildiko Kalanyos (Biga), Susana Kalanyos, Lajos Panta, Violeta Pusuc, Ianos Ştefan, Ana Tina Snr and Ana Tina Jr requested EUR 15,000; and Agneta Csiki, Ana-Narcisa Gorcs, Traian Kovacs and Ancuţa Maria Moldovan requested EUR 10,000. 175. The Government requested that the Court dismiss the applicants’ claims as exaggerated and unsubstantiated. 176. The Court notes that the serious violations found in the present case must have caused the applicants suffering and frustration which cannot be compensated for by a mere finding of a violation. Therefore, having regard to its previous case-law and making its assessment on an equitable basis, the Court awards in respect of non-pecuniary damage EUR 7,500 to each of the above-mentioned applicants. B. Costs and expenses 177. The applicants claimed a joint amount for costs and expenses with their claims in respect of pecuniary and non-pecuniary damage, without submitting any details (see paragraphs 169 and 174 above). 178. The Government requested that the Court dismiss the applicants’ claims as unsubstantiated. 179. 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 (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000‑XI). In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claim for costs and expenses. C. Default interest 180. 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 complaint under Article 2 of the Convention raised by the applicants Sonia Biga, Augustin Biga, Carol Ciorcan, Sorin Ciorcan, Costel Ciorcan, Edith Csiki (Biga) and Ildiko Kalanyos (Biga) admissible; 3. Declares the complaint under Article 3 of the Convention admissible for the applicants Ştefan Bidi, Margareta Biga, Liviu Bucunea Jr, Etelka Capo, Costel Ciorcan, Agneta Csiki, Lia Gabor, Ana-Narcisa Gorcs, Ildiko Kalanyos (Biga), Susana Kalanyos, Traian Kovacs, Ancuţa Maria Moldovan, Mihai Moldovan Jr, Lajos Panta, Violeta Pusuc, Edith Racz, Cornelia Simion, Ianos Ştefan, Ana Tina Snr and Ana Tina Jr; 4. Declares the complaint under Article 3 of the Convention inadmissible for the applicants Ana Maria-Paula Bidi, Denes Biga, Erika Biga, Iosif Biga Snr, Iosif Biga Jr, Ladislau Biga, Rozalia Bucunea, Carol Ciorcan, Edith Csiki (Biga), Ladislau Horvath, Petru Kalanyos Snr, Petru Kalanyos Jr, Ana Lingurar and Lela Potra; 5. Declares the complaint under Article14 taken together with Articles 2 and 3 of the Convention admissible for the applicants Sonia Biga, Augustin Biga, Carol Ciorcan, Sorin Ciorcan, Costel Ciorcan, Edith Csiki (Biga), Ildiko Kalanyos (Biga), Ştefan Bidi, Margareta Biga, Liviu Bucunea Jr, Etelka Capo, Agneta Csiki, Lia Gabor, Ana-Narcisa Gorcs, Susana Kalanyos, Traian Kovacs, Ancuţa Maria Moldovan, Mihai Moldovan Jr, Lajos Panta, Violeta Pusuc, Edith Racz, Cornelia Simion, Ianos Ştefan, Ana Tina Snr and Ana Tina Jr and the remainder of this complaint inadmissible; 6. Holds that there has been a violation of Article 2 of the Convention under its substantial and procedural limbs in respect of the applicants Sonia Biga, Augustin Biga, Carol Ciorcan, Sorin Ciorcan, Costel Ciorcan, Edith Csiki (Biga) and Ildiko Kalanyos (Biga); 7. Holds that there has been no violation of the substantive limb of Article 3 of the Convention; 8. Holds that there has been a violation of the procedural limb of Article 3 of the Convention in respect of the applicants Ştefan Bidi, Margareta Biga, Liviu Bucunea Jr, Etelka Capo, Costel Ciorcan, Agneta Csiki, Lia Gabor, Ana-Narcisa Gorcs, Ildiko Kalanyos (Biga), Susana Kalanyos, Traian Kovacs, Ancuţa Maria Moldovan, Mihai Moldovan Jr, Lajos Panta, Violeta Pusuc, Edith Racz, Cornelia Simion, Ianos Ştefan, Ana Tina Snr and Ana Tina Jr; 9. Holds that there has been a violation of Article 14 of the Convention taken in conjunction with Articles 2 and 3 of the Convention under their procedural limb in respect of the applicants Sonia Biga, Augustin Biga, Carol Ciorcan, Sorin Ciorcan, Costel Ciorcan, Edith Csiki (Biga), Ildiko Kalanyos (Biga), Ştefan Bidi, Margareta Biga, Liviu Bucunea Jr, Etelka Capo, Agneta Csiki, Lia Gabor, Ana-Narcisa Gorcs, Susana Kalanyos, Traian Kovacs, Ancuţa Maria Moldovan, Mihai Moldovan Jr, Lajos Panta, Violeta Pusuc, Edith Racz, Cornelia Simion, Ianos Ştefan, Ana Tina Snr and Ana Tina Jr; 10. Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement plus any tax that may be chargeable: (i) EUR 42,000 (forty-two thousand euros) jointly to the applicants Sonia Biga, Augustin Biga, Carol Ciorcan, Costel Ciorcan, Sorin Ciorcan, Edith Csiki (Biga) and Ildiko Kalanyos (Biga); (ii) EUR 7,500 (seven thousand five hundred euros), to each of the applicants Ştefan Bidi, Margareta Biga, Liviu Bucunea Jr, Etelka Capo, Costel Ciorcan, Agneta Csiki, Lia Gabor, Ana-Narcisa Gorcs, Ildiko Kalanyos (Biga), Susana Kalanyos, Traian Kovacs, Ancuţa Maria Moldovan, Mihai Moldovan Jr, Lajos Panta, Violeta Pusuc, Edith Racz, Cornelia Simion, Ianos Ştefan, Ana Tina Snr and Ana Tina Jr; (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; 11. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 27 January 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Marialena TsirliJosep CasadevallDeputy RegistrarPresident ANNEX No. Applicant’s name, date of birth and place of residence Application No. 1. Costel CIORCAN 2/02/1978, Reghin 29414/09 44841/09 2. Sorin CIORCAN 21/09/1979, Reghin 29414/09 3. Carol CIORCAN 2/07/1981, Reghin 29414/09 44841/09 4. Sonia BIGA 22/12/1974, Reghin 29414/09 5. Augustin BIGA 14/03/1973, Reghin 29414/09 6. Ildiko KALANYOS (BIGA) 16/05/1971, Reghin 29414/09 44841/09 7. Edith CSIKI (BIGA) 16/05/1971, Reghin 29414/09 44841/09 8. Ana Maria-Paula BIDI (BEICA) 26/05/1987, Reghin 44841/09 9. Ştefan BIDI 19/05/1981, Reghin 44841/09 10. Deneş BIGA 15/06/1956, Reghin 44841/09 11. Erika BIGA 25/02/1975, Reghin 44841/09 12. Iosif BIGA (Jr) 16/11/1973, Reghin 44841/09 13. Iosif BIGA (Snr) 10/04/1950, Reghin 44841/09 14. Ladislau BIGA 30/01/1989, Reghin 44841/09 15. Margareta BIGA 30/09/1951, Reghin 44841/09 16. Liviu BUCUNEA (Jr) 8/06/1985, Reghin 44841/09 17. Rozalia BUCUNEA 28/12/1964, Reghin 44841/09 18. Etelka CAPO 25/07/1980, Reghin 44841/09 19. Agneta CSIKI 29/11/1972, Reghin 44841/09 20. Lia GABOR 14/01/1974, Reghin 44841/09 21. Ana-Narcisa GORCS 15/09/1978, Orăştie 44841/09 22. Ladislau HORVATH 25/03/1960, Reghin 44841/09 23. Petru KALANYOS (Snr) 16/11/1965, Reghin 44841/09 24. Petru KALANYOS (Jr) 19/02/1990, Reghin 44841/09 25. Susana KALANYOS 28/04/1937, Reghin 44841/09 26. Traian KOVACI 20/02/1974, Reghin 44841/09 27. Ana LINGURAR 18/03/1957, Reghin 44841/09 28. Ancuţa Maria MOLDOVAN 1/06/1984, Reghin 44841/09 29. Mihai-Alexandru MOLDOVAN 28/09/1988, Reghin 44841/09 30. Lajos PANTA 24/04/1976, Reghin 44841/09 31. Lela POTRA 24/12/1975, Reghin 44841/09 32. Violeta PUSUC 17/02/1967, Reghin 44841/09 33. Edith RACZ (BIGA) 24/10/1984, Reghin 44841/09 34. Cornelia SIMION (BIGA) 4/01/1981, Reghin 44841/09 35. Janos STEFAN 30/12/1961, Reghin 44841/09 36. Ana ȚINA (Snr) 21/11/1944, Reghin 44841/09 37. Ana ȚINA 10/08/1970, Reghin 44841/09

FOURTH SECTION CASE OF HILLER v. AUSTRIA (Application no. 1967/14) JUDGMENT STRASBOURG 22 November 2016 FINAL 22/02/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Hiller v. Austria, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: András Sajó, President,Vincent A. De Gaetano,Nona Tsotsoria,Krzysztof Wojtyczek,Egidijus Kūris,Iulia Motoc,Gabriele Kucsko-Stadlmayer, judges,and Marialena Tsirli, Section Registrar, Having deliberated in private on 11 October 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 1967/14) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Ms Rozalia Hiller (“the applicant”), on 3 January 2014. 2. The applicant was represented by Mr T. Angkawidjaja, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Mr H. Tichy, Head of the International Law Department at the Federal Ministry for Europe, Integration and Foreign Affairs. 3. The applicant complained in substance under Article 2 of the Convention that her son had been able to commit suicide as a result of the psychiatric hospital’s negligence. 4. On 12 May 2015 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1953 and lives in Vienna. 6. M.K., the applicant’s son born in 1981, was taken to the Otto Wagner Hospital on 19 March 2010 suffering from an acute episode of paranoid schizophrenia. The Otto Wagner Hospital is a public institution of the City of Vienna specialising in neurology, orthopaedics, psychiatry and pulmonology. It is situated on a vast area outside the city center in the west of the green-belt of Vienna, consisting of some 26 hospital buildings with annexes, a church, a museum, a theatre and a large park. 7. In a decision of 7 April 2010, the Fünfhaus District Court (Bezirksgericht) ordered M.K.’s involuntary placement in the psychiatric unit of that hospital pursuant to section 8 of the Hospitalisation Act (Unterbringungsgesetz). 8. On 12 May 2010 M.K. failed to return from an authorised walk in the hospital grounds. He had escaped from the premises and died after jumping in front of a subway train. 9. Subsequently, in August 2010 the applicant brought a civil action in the Vienna Regional Civil Court (Landesgericht für Zivilrechtssachen) under the Official Liability Act (Amtshaftungsgesetz) against the City of Vienna (Stadt Wien) as the authority responsible for the hospital, seeking compensation of 20,000 euros (EUR) plus interest in respect of non‑pecuniary damage. 10. She stated that in 2006 and 2007 her son had already undergone inpatient treatment for paranoid schizophrenia at the Otto Wagner Hospital and the Vienna General Hospital (Allgemeines Krankenhaus Wien). Hospitalisation had been ordered on 19 March 2010 because M.K. had posed a danger both to himself and others. He had attacked a chewing gum dispenser with a sledgehammer and appeared to be utterly confused when the police arrived on the scene. The expert Dr P., who was called to assess M.K.’s mental state, diagnosed him with paranoid schizophrenia. Because of M.K.’s delusional behaviour, there was a risk that he would harm himself or others. The expert concluded that M.K.’s mental state required him to be placed in a closed psychiatric institution. 11. However, on 25 and 29 March 2010 M.K. managed to escape from the closed ward of the Otto Wagner Hospital and was found and brought back only after a search conducted by the police and the hospital staff. On 12 May 2010 he escaped from the open ward to which he had been transferred in the meantime, and committed suicide by jumping in front of a subway train. 12. The applicant claimed that she had suffered a massive shock as a result of her son’s death. Before his involuntary placement in the hospital, M.K. had lived with her in the same household and they had had a very close relationship. The applicant claimed that as a result of his death she had suffered from depression and insomnia and had been seeing a psychotherapist since June 2010. Nonetheless, her mental state had not improved since. 13. The fact that her son had been able to escape from the hospital premises led the applicant to conclude that the hospital staff had acted negligently in the performance of their duties. Because M.K.’s behaviour had been unpredictable, he should have been under strict supervision. In the circumstances, and especially because he had managed to escape twice before, restriction of his freedom of movement within a closed ward was proportionate, necessary and adequate. Furthermore, such restriction should have included a degree of supervision by the hospital staff. The contract for M.K.’s treatment had included duties of protection and care. There had been signs of suicidal thoughts on the patient’s part, and the hospital staff should therefore have prevented him from leaving the ward. However, the necessary diligence had not been exercised. For these reasons, the applicant claimed that the City of Vienna had been at fault and was therefore responsible for the non-pecuniary damage she sustained. 14. The City of Vienna asked the Vienna Regional Civil Court to dismiss the applicant’s claim. It argued that M.K.’s involuntary placement in the psychiatric institution on 19 March 2010 had been necessary as he had not been aware of his mental illness and had refused to be treated. At the time, he had been utterly confused and it had not been possible to reason with him. Because of the threat he posed to himself and others, he had repeatedly had his freedom of movement restricted whilst in hospital and had had to be medicated parenterally. On 25 March 2010 he had left the acute station without permission and went to his parents’ place. When the police and the ambulance brought him back to the hospital, he had had to be sedated intravenously because of the highly psychotic state he was in. On 29 March 2010, only four days later, he escaped again from the acute station, but was apprehended by the hospital’s security staff on the premises of the hospital. However, from 2 April 2010, M.K.’s attitude changed and he became willing to take oral medication. From that day on, his freedom of movement was no longer restricted. He had appeared well-adjusted and friendly. In view of the progress in his treatment, and as he appeared more reasonable and able to abide by agreements, he had been transferred from the acute station to the subacute ward on 20 April 2010. However, he had then succumbed to so‑called “dynamic exhaustion” (dynamische Entleerung), which manifested itself in a noticeable loss of drive and the desire for a quiet environment. The hospital staff had therefore tried to animate M.K. through occupational therapy and recreational walks in the hospital grounds, which − on the basis of a well-documented medical order − he had been allowed to take on his own as of 21 April 2010. This medical order had taken into account the fact that M.K. had twice before escaped from his ward. Thereafter, however, M.K. had continued to receive treatment for over three weeks and there had been a considerable improvement in his condition. Moreover, he had been made aware that he was not allowed to leave the hospital premises and had to notify the staff before going out for a walk and again upon his return. He had also been permitted to leave the building to smoke a cigarette. The hospital had maintained detailed documentary records of his medical treatment and progress. There had been no indication of suicidal thoughts. However, on 12 May 2010 at 5.15pm the doctor on duty was informed by the hospital staff that the applicant’s son had not returned from an authorised walk in the hospital grounds and had apparently taken his personal clothing with him. A search operation had immediately been initiated on the premises and at the same time the police had been asked to search for him. At approximately 9pm the police informed the hospital that M.K. had been killed in a subway train accident at around 4 pm. 15. The City of Vienna submitted that under the provisions of the Hospitalisation Act and in keeping with current practice in the treatment of mentally ill patients, “open” psychiatry was the norm and restriction of a patient’s freedom of movement was permissible only in cases of absolute necessity and within the bounds of proportionality. In the present case, by 12 May 2010 restriction of the physical movement of the applicant’s son (known as “fixation”), and/or the spatial restriction of his movement to the confines of a psychiatric bed, or his permanent supervision, were no longer medically indicated, nor would such measures have been reasonable or adequate. On the contrary, the lack of any indication of suicidal thoughts on the part of M.K. would have rendered any further restriction of his freedom of movement unlawful under the Hospitalisation Act. 16. During the oral hearing of 3 September 2012 the applicant reduced her claim to 15,000 EUR plus 4% interest per annum. 17. On 30 November 2012 the Vienna Regional Civil Court granted the claim. It found that even shortly before his death on 12 May 2010, it could be assumed that M.K. still posed a threat to himself and others, in particular because he still suffered from the delusional idea that he was a different person and did not recognise his parents as his own. Self-harming behaviour could occur outside the hospital environment, due to overstimulation, even in patients who had shown progress after a psychosis. It was no longer possible to determine whether the applicant’s son had jumped in front of the subway train in order to deliberately commit suicide, or whether he followed a spontaneous impulse or a delusional thought to that end. In any event the hospital should have made sure that he was not able to leave the hospital grounds, even if therapeutic walks were medically indicated and permissible in the circumstances. 18. From a legal perspective, the Regional Civil Court affirmed that, as the authority responsible for the Otto Wagner Hospital, the City of Vienna could be held accountable for any culpable action or omission by its organs or officials, pursuant to section 1 of the Official Liability Act. At the material time, the applicant’s son had been lawfully hospitalised by a decision of the Fünfhaus District Court of 7 April 2010, which remained valid until 21 May 2010. Sections 3 and 33 of the Hospitalisation Act in force at the time provided that, in cases where hospitalisation had been ordered, it was also necessary to guard against threats potentially posed by the patient. Accordingly, the hospital was obliged to ensure restriction of the patient’s freedom of movement in order to protect against potential damage. In the instant case, M.K. was allowed to take walks on the hospital premises because such walks were medically indicated. However, no measures were taken to ensure that he respected the restrictions on his freedom of movement. There was no effective supervision of his walks or their duration. By disregarding its duty of supervision, the hospital had implemented the Hospitalisation Act incorrectly. It was immaterial that the applicant’s son had not shown any signs of suicidal tendencies because the hospitalisation was originally effected because of the danger he posed to himself and to others. Therefore, even if he did not pose a threat to himself anymore, the requirement for hospitalisation was still valid because of the threat he posed to others. In the instant case, the lack of supervision of M.K. resulted in the applicant having to suffer the shock of the death of her son. The court concluded that the civil claim was justified and granted the applicant EUR 15,000 plus interest by way of compensation in respect of non-pecuniary damage. 19. The City of Vienna appealed, claiming that the court had wrongly assessed the evidence, that its finding of facts was incorrect, and that it had wrongly interpreted the law. 20. On 26 March 2013 the Vienna Court of Appeal (Oberlandesgericht) granted the defendant’s appeal and dismissed the applicant’s claim. In its view, there had been no causal link between the wholly unexpected suicide of the applicant’s son and the alleged dereliction of the hospital’s duty of supervision under the Hospitalisation Act. Although it was stated in the hospital admission report that there was a danger of M.K.’s putting himself and others at risk due to his disoriented state, it was also explicitly mentioned that he had no suicidal thoughts. According to the expert opinion by Dr P of 25 May 2012, the continuation of M.K.’s hospitalisation on 12 May 2010 was indicated only because of the threat he posed to others, in particular to his mother, but no longer to himself. This was the reason why his freedom of movement at that point had been restricted to the hospital premises rather than just the closed ward. The court found that in the light of the improvement in his symptoms, it was not unusual that he had been allowed to take walks for therapeutic purposes, even if it might have been advisable to allow these walks only when accompanied by hospital staff. 21. The Court of Appeal further affirmed that there had been no indication of self-harm during M.K.’s entire stay at the hospital. He had not voiced suicidal thoughts or undertaken any actions of a suicidal nature. It could not be established whether his jumping in front of the subway train was a suicide which he had planned even before he left the hospital premises, or whether it had been a spontaneous act of self-harm resulting from his psychosis. Naturally, M.K. would not have been able to commit suicide if he had been prevented from leaving the hospital grounds. Even with patients whose psychotic symptoms had improved, the phenomenon of overstimulation could occur if they left the therapeutic environment, whereas such a situation was much less likely to occur within the confines of a hospital. Section 3 § 1 of the Hospitalisation Act referred, as its purpose, only to the protection of the life and limb of the mental patient himself and third parties. The behaviour of M.K. had not been foreseeable because there had no longer been any indication of possible self-harm at the material time and his action was therefore not attributable to the hospital. The fact that the risk of self-harm could never be entirely excluded in the case of psychotic patients did not change this assessment. 22. The applicant appealed, arguing that at the time when M.K. had committed suicide, the initial decision by the Fünfhaus District Court on his hospitalisation had still been valid and was based on the assessment that he posed a danger to himself and others because of his paranoid schizophrenia. No new expert opinion had been obtained, and the hospital had not informed the guardianship court (Pflegschaftsgericht) that the threat of self‑harm had ceased to exist. Consequently, the medical indication would still have been a restriction of M.K.’s freedom of movement. By failing to restrict his movement, the hospital had acted contrary to the court decision ordering his hospitalisation. 23. On 18 July 2013 the Supreme Court dismissed the applicant’s appeal, upholding the legal and factual findings of the Court of Appeal. It added that a lawful implementation of the Hospitalisation Act was possible both inside and outside a closed ward. M.K.’s hospitalisation had therefore not been unlawful, even though he had been placed in the open ward from 20 April 2010. Contrary to the applicant’s line of argumentation, the Otto Wagner Hospital had not had a duty to implement the Fünfhaus District Court’s decision on M.K.’s hospitalisation in a manner which compelled it to restrict his movement. This followed from section 32 of the Hospitalisation Act – according to which a hospitalisation order could be lifted at any time by the head of the institution – and section 33, which stated that restriction of movement was permissible in limited cases only. The District Court’s decision had not defined the extent or duration of any specific restriction of movement. Section 33 of the Hospitalisation Act provided that a restriction of freedom of movement might only be used as an exceptional measure and “last resort”. Also, Articles 3 and 5 of the Convention restricted the permissibility of isolating mentally ill patients. Even within a closed ward, mentally ill patients had to have the widest possible amount of freedom of movement. Only the more restrictive measures under section 33 of the Hospitalisation Act were subject to judicial review. 24. The Supreme Court also stated that from a therapeutic perspective M.K. had been allowed to take unaccompanied walks because of the improvement in his condition. Moreover, from the time he had been authorised to take these walks, he had always returned without problems. This measure, which had been ordered by the psychiatrist treating him, had therefore been proportionate and necessary pursuant to section 33 of the Hospitalisation Act. In conclusion, the hospital had not acted culpably, for which reason the applicant’s claim under the Official Liability Act was not justified. II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A. Domestic Law 1. The Hospitalisation Act (as in force at the relevant time) 25. Section 1 of the Hospitalisation Act stipulated that the personality rights of mentally ill persons who were hospitalised must be specially protected, and that their dignity must be respected and preserved under all circumstances. 26. According to its section 2, its provisions applied to all hospitals and psychiatric departments where patients were treated in a closed ward or were otherwise subject to restrictions on their freedom of movement. The confinement of an individual’s movement to the premises of a hospital, even if that person was free to move around within those premises, amounted to a “hospitalisation” within the meaning of the law. 27. According to section 3, a person could only be hospitalised if they suffered from a mental illness and posed a significant threat to themselves or others because of their illness and could not adequately be treated in any other manner. This provision laid down the principle of the subsidiarity of hospitalisation. Preference had to be given to other forms of treatment not involving deprivation of liberty, such as semi-inpatient treatment, outpatient treatment, or residential nursing facilities. According to the explanatory reports to the Hospitalisation Act, restrictions of movement were subject to the principle of the least necessary interference and were to be applied as ultima ratio only. 28. Section 8 provided that a person may only be hospitalised against their will or without their consent after examination by a public service doctor (Amtsarzt), who was to confirm that the requirements for hospitalisation were fulfilled. 29. The competent District Court decided on the admissibility of the hospitalisation (sections 12 and 18) after having examined the prerequisites under Article 3. If the court declared it admissible, it set a time-limit for the hospitalisation, which initially had not to exceed three months (section 26 § 2). Even prior to the expiry of the fixed period, the head of the department where the person concerned was placed had to examine and document the continued existence of the prerequisites for hospitalisation and to immediately terminate it if the reasons for its implementation ceased to exist (section 32). 30. Under section 33, restriction of the patient’s freedom of movement was permitted only if the nature, extent and duration of the restriction were strictly necessary for the purposes of section 3 of the Hospitalisation Act and for the medical treatment or care in question, and if it was proportionate to the aims pursued. In general, the restriction could only extend over several rooms or specific areas. Any further restriction, for instance to a single room, was permissible only if individually ordered by a doctor and had to be documented. The patient’s guardian had to be immediately informed and had the right to request that a court decide on the admissibility of such a measure. The patient’s freedom of movement had to be restored as soon as the circumstances so permitted. 2. The Official Liability Act 31. According to section 1 of the Official Liability Act, the Federation (Bund), the regions (Länder), the districts (Bezirke), the municipalities (Gemeinden) and other legal entities defined under public law (Körperschaften öffentlichen Rechts) are liable pursuant to civil law for pecuniary damage or damage to a person which has been culpably and unlawfully caused by one of their organs or officials in the fulfilment of their duties under the law. Involuntary placements under the Hospitalisation Act are acts under public administration (Hoheitsverwaltung) and are therefore are subject to claims under the Official Liability Act. B. International law and practice 1. Council of Europe 32. On 22 September 2004 the Committee of Ministers adopted Recommendation Rec(2004)10 concerning the protection of the human rights and dignity of persons with mental disorder, in particular those who are subject to involuntary placement or treatment. Article 8 lays down the “principle of least restriction”: “Persons with mental disorder should have the right to be cared for in the least restrictive environment available and with the least restrictive or intrusive treatment available, taking into account their health needs and the need to protect the safety of others.” The explanatory memorandum to the recommendation states that the “principle of least restriction” is fundamental. It implies that if a person’s illness improves, they should be moved to a less restrictive environment, when appropriate to his or her health needs. 33. Article 17 of the recommendation sets out the criteria governing involuntary placement and states that a person may only be subject to such a measure if he or she has a mental disorder and represents a significant risk to himself or others because of it, and as long as the placement includes a therapeutic purpose, no less restrictive means are available, and the opinion of the person concerned has been taken into consideration. 2. United Nations (a) General Assembly Resolution A/RES/46/119 34. This resolution of 17 December 1991 laid down several principles for the protection of persons with mental illness and for the improvement of their mental health care. The relevant principles are the following: Principle 1 - Fundamental freedoms and basic rights ... 2. All persons with a mental illness, or who are being treated as such persons, shall be treated with humanity and respect for inherent dignity of the human person. ... Principle 9 - Treatment 1. Every patient shall have the right to be treated in the least restrictive environment and with the least restrictive or intrusive treatment appropriate to the patient’s health needs and the need to protect the physical safety of others. 2. The treatment and care of every patient shall be based on an individually prescribed plan, discussed with the patient, reviewed regularly, revised as necessary and provided by qualified professional staff. ... 4. The treatment of every patient shall be directed towards preserving and enhancing personal autonomy. ... (b) The Convention on the Rights of Persons with Disabilities (“the CRPD”) 35. The CRPD, adopted by the United Nations General Assembly on 13 December 2006 (Resolution A/RES/61/106), was designed to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by persons with disabilities and to promote respect for their inherent dignity. It was ratified by Austria on 26 September 2008. It reads as follows in its relevant parts: Article 10 - Right to life States Parties reaffirm that every human being has the inherent right to life and shall take all necessary measures to ensure its effective enjoyment by persons with disabilities on an equal basis with others. Article 14 - Liberty and security of the person 1. States Parties shall ensure that persons with disabilities, on an equal basis with others: a. Enjoy the right to liberty and security of person; b. Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty. 2. States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of this Convention, including by provision of reasonable accommodation. (c) Subsequent developments 36. In September 2014, the United Nations Office of the High Commissioner for Human Rights issued the following statement concerning Article 14 of the CRPD: “Liberty and security of the person is one of the most precious rights to which everyone is entitled. In particular, all persons with disabilities, and especially persons with mental disabilities or psychosocial disabilities are entitled to liberty pursuant to article 14 of the Convention. Ever since the CRPD committee began reviewing state party reports at its fifth session in April 2011, the Committee has systematically called to the attention of states party the need to correctly enforce this Convention right. The jurisprudence of the Committee on article 14 can be more easily comprehended by unpacking its various elements as follows: 1. The absolute prohibition of detention on the basis of disability. There are still practices in which state parties allow for the deprivation of liberty on the grounds of actual or perceived disability. In this regard the Committee has established that article 14 does not permit any exceptions whereby persons may be detained on the grounds of their actual or perceived disability. However, legislation of several states party, including mental health laws, still provide instances in which persons may be detained on the grounds of their actual or perceived disability, provided there are other reasons for their detention, including that they are dangerous to themselves or to others. This practice is incompatible with article 14 as interpreted by the jurisprudence of the CRPD committee. 2. Mental health laws that authorize detention of persons with disabilities based on the alleged danger of persons for themselves or for others. Through all the reviews of state party reports the Committee has established that it is contrary to article 14 to allow for the detention of persons with disabilities based on the perceived danger of persons to themselves or to others. The involuntary detention of persons with disabilities based on presumptions of risk or dangerousness tied to disability labels is contrary to the right to liberty. For example, it is wrong to detain someone just because they are diagnosed with paranoid schizophrenia. 3. ...” 37. The United Nations Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Dainius Pūras, has set as “one of his priorities to look into the role of the health sector and health professionals in the implementation of ambitious goals raised by the CRPD”. On 2 April 2015 he issued a report concerning the right to health for all people with disabilities and scrutinised the practice of deprivation of liberty in closed psychiatric institutions: “96. The Convention is challenging traditional practices of psychiatry, both at the scientific and clinical-practice levels. In that regard, there is a serious need to discuss issues related to human rights in psychiatry and to develop mechanisms for the effective protection of the rights of persons with mental disabilities. 97. The history of psychiatry demonstrates that the good intentions of service providers can turn into violations of the human rights of service users. The traditional arguments that restrict the human rights of persons diagnosed with psychosocial and intellectual disabilities, which are based on the medical necessity to provide those persons with necessary treatment and/or to protect his/her or public safety, are now seriously being questioned as they are not in conformity with the Convention. ... 99. A large number of persons with psychosocial disabilities are deprived of their liberty in closed institutions and are deprived of legal capacity on the grounds of their medical diagnosis. This is an illustration of the misuse of the science and practice of medicine, and it highlights the need to re-evaluate the role of the current biomedical model as dominating the mental-health scene. Alternative models, with a strong focus on human rights, experiences and relationships and which take social contexts into account, should be considered to advance current research and practice. ...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 38. The applicant complained that the authorities had failed to assure the protection of her son’s life in violation of his rights under Article 2 of the Convention, which reads in its first paragraph: “Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.” A. Admissibility 39. The Court notes that the application 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’ submissions (a) The applicant 40. The applicant reiterated that the Fünfhaus District Court had ordered her son’s hospitalisation and that this order had remained valid until 21 May 2010. The fatal incident had therefore occurred during the court order’s period of validity. M.K. had managed to escape from the hospital on several occasions before then. It was important to note in this connection that his hospitalisation had been ordered because of the threat he had posed to himself and to others. If such a threat had no longer existed on the day of his suicide, the hospital would have had to request the lifting of the hospitalisation order, which it had not done. It could therefore be assumed that on the day of his death M.K. had still posed a threat to himself and others. 41. The applicant submitted that the object and purpose of the Hospitalisation Act was to assure the protection of the life and limb of the hospitalised person and of third parties. In the instant case, however, this protection had not been assured. There would have been no point in the hospitalisation of M.K. had he been able to leave the hospital at will, without any control. Hospitalisation in such circumstances would be absurd. The applicant concluded that the Republic of Austria, through its organs and officials, had failed to assure the protection of the life of her mentally ill son. (b) The Government 42. The Government submitted that, as a general principle, mentally ill individuals should be treated and cared for in the same way as other categories of patient, namely in outpatient or “open” inpatient wards, without restriction of their personal rights. This was expressed through the provisions of the Hospitalisation Act and its explanatory reports and was in accordance with the development of psychiatric care reform movements that have been ongoing in Europe since the 1980s. The coercive approach to psychiatric treatment had been reduced, and it was intended to treat patients on a socio-psychiatric basis and, as far as possible, in a natural atmosphere. Unlike in “closed” wards, where the measures restricting the patients’ freedom of movement were laid down in general and externally recognisable organisational structures, the characteristic features of an “open” type of hospitalisation were individual restrictions on a patient’s freedom of movement, which were effected in ways other than that of confinement to permanently closed areas. That this “open” approach would in practice inevitably result in more escapes was accepted, since the advantages of open hospitalisation outweighed the disadvantages of “closed” hospitalisation. According to the literature on the subject, the frequency of escape from open psychiatric wards or institutions was in any event overestimated. 43. The Government also submitted that diagnostics and therapy at the Otto Wagner Hospital were based on state-of-the-art developments in psychiatric science and research. The aim of the psychiatric treatment was the reintegration of mentally ill patients into everyday life so that they were able to come to terms with their illness and its consequences, to gradually assume responsibility for their own life with the help of the staff, and to live their lives independently. Therapeutic walks outside the hospital premises in order to prepare for the patient’s release after several weeks of inpatient treatment were subject to a particularly careful decision-making process and would only be permitted if they posed no acute danger to the patient or to others. The decision as to whether and when such preparations for an actual release could start was up to the doctor treating the patient in question. In determining this question, the doctor also took into account the assessment of the nursing staff, the psychologists and the therapists involved in the treatment and care process of the patient concerned. Moreover, it was subject to a regular re-assessment. 44. The Government argued that it was evident from the relevant case‑law and literature at the material time that unaccompanied walks by hospitalised persons were admissible, even if the Hospitalisation Act was silent on the issue. It could not be deduced from the fact that “hospitalisation” was defined as a restriction of freedom of movement that this restriction had to remain at the same intensity throughout its entire duration. It was rather the case that any restriction was admissible only in so far as it was strictly necessary and proportionate. This included, if appropriate, allowing the patient to temporarily leave the hospital premises. It followed from section 33 § 1 of the Hospitalisation Act that a patient’s freedom of movement had to be restored as soon as the circumstance necessitating its restriction ceased to exist. Granting a person a wider freedom of movement by allowing unaccompanied walks on the hospital premises or even outside did not mean that the hospitalisation was thereby lifted or interrupted. 45. The Government maintained that the Austrian courts had conducted detailed and thorough investigations and had come to the conclusion that the hospital neither was nor could have been aware of a real and imminent risk of suicide on the part of M.K. At no time during his hospitalisation between 19 March and 12 May 2010 had there been any indication of the existence of such a risk, as was documented in detail by the hospital and corroborated by the statements under oath of the three treating doctors before the Vienna Regional Civil Court on 16 May 2011. As in Keenan v. the United Kingdom, no. 27229/95, § 99, ECHR 2001‑III, there was no such indication on the day of his death either. In contrast to Renolde v. France (no. 5608/05, § 83, ECHR 2008 (extracts)), there was no reason to anticipate any sudden deterioration in his condition, for example because of a recent change in medication. On the contrary, M.K. was being prepared for his release, as his hospitalisation was to end on 21 May 2010. In the light of the progress he had made, it had not been considered necessary to request the competent District Court to prolong the measure. 46. The Government concluded from the above that in the instant case there had been no violation of its positive obligations under Article 2 of the Convention. 2. The Court’s assessment (a) General principles 47. The Court reiterates that the first sentence of Article 2, which ranks as one of the most fundamental provisions in the Convention and also enshrines one of the basic values of the democratic societies making up the Council of Europe, enjoins the State not only to refrain from the “intentional” taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998-III). 48. Those principles apply in the public-health sphere too. States are required to make regulations compelling hospitals, whether public or private, to adopt appropriate measures for the protection of their patients’ lives and to set up an effective independent judicial system so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable (see Dodov v. Bulgaria, no. 59548/00, § 80, 17 January 2008, and Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 49, ECHR 2002‑I). Where the authorities decide to place and keep in detention a person with disabilities, they should demonstrate special care in guaranteeing such conditions as correspond to the special needs resulting from his or her disability (see Jasinskis v. Latvia, no. 45744/08, § 59, 21 December 2010, with further references). The same applies to persons who are placed involuntarily in psychiatric institutions. In the case of mentally ill patients, consideration must be given to their particular vulnerability (see, mutatis mutandis, Keenan, cited above, § 111; Rivière v. France, no. 33834/03, § 63, 11 July 2006; and Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 131, ECHR 2014). 49. The Court further reiterates that Article 2 may imply in certain well‑defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual from another individual or, in particular circumstances, from himself (see Renolde, cited above, § 81, and Haas v. Switzerland, no. 31322/07, § 54, ECHR 2011). However, in the particular circumstances of the danger of self-harm, the Court has held that for a positive obligation to arise, it must be established that the authorities knew or ought to have known at the relevant time that the person concerned was under a real and immediate risk to his life and that they had not taken measures which could reasonably have been expected of them (Keenan, cited above, § 93). Such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities (compare Tanribilir v. Turkey, no. 21422/93, §§ 70-71, 16 November 2000, and Keenan, cited above, § 90). (b) Application of those principles to the instant case 50. The Court notes at the outset that it was undisputed between the parties that M.K.’s hospitalisation had been lawful, and that at the time of his death the respective court order was still in force. The parties’ views differ, however, when it comes to the question of the foreseeability of M.K.’s suicide and a possible duty on the part of the hospital to prevent him from taking his own life by further restricting his freedom of movement. 51. The Court reiterates that after his hospitalisation on 19 March 2010, the applicant’s son had managed to escape twice from the closed ward, namely on 25 and 29 March 2010. The third escape, which resulted in his suicide, took place on 12 May 2010, thus about one and a half months later, when he had already been transferred to an open ward. According to the comprehensive findings of the national courts – which were based on witness statements and an expert opinion – both M.K.’s willingness to comply with hospital orders and his condition had significantly improved after 2 April 2010. From that time on, the national authorities considered that it would no longer have been proportionate to keep him in the closed ward, even though his last escape had only taken place a few days earlier. M.K. had successively been given more personal freedom, in particular because of the need to animate him to counteract the dynamic exhaustion which afflicted him, and in order to facilitate his re-integration into society. The domestic authorities had not found any counter-indication as he had at no point in his entire stay expressed any suicidal thoughts or demonstrated such behaviour. According to the expert opinion of Dr P (see paragraph 20 above), at the time of his fatal escape, hospitalisation was indicated only because of the threat he still posed to others, but not to himself any more. 52. The Court considers the assessment of the facts by the domestic authorities comprehensive, relevant and persuasive, and also in line with its case-law on the issue. In Renolde v. France, cited above, the Court found a violation of Article 2 because the authorities had known from a previous suicide attempt that the applicant’s brother was suffering from an acute psychotic disorder capable of resulting in self-harm. In the instant case, it appears from the hospital records that there had been no signs of suicidal thoughts or attempts throughout M.K.’s entire stay at the institution. In these circumstances, it would not have been lawful under the Hospitalisation Act for the hospital to keep him in the closed ward any longer (see paragraphs 27 and 30 above). During the weeks preceding M.K.’s death, that is to say from the beginning of April 2010 until 12 May 2010, he had been calm, inconspicuous and had taken his medicine voluntarily. When he was given the freedom to take walks by himself from 21 April 2010 – more than three weeks after his previous escape – he had always returned from his walks as agreed. He notified the hospital staff that he was taking a walk before leaving and informed them again upon his return and – as instructed – never left the hospital grounds. 53. In Keenan, cited above, the Court found no violation of Article 2 because there was no reason for the authorities to be alerted on the day of the inmate’s death that he was in a disturbed state of mind, rendering a suicide attempt likely, even though he had previously voiced such thoughts. In the instant case, from the documents at hand and from the fact that the hospital kept a detailed record of his treatment, the Court is convinced that the hospital staff could not at any point have had any reason to expect that M.K. would commit suicide, either on the day of his commitment to the hospital or on any of the other days during which he remained within their sphere of responsibility. The Court finds the above elements sufficient to allow it to conclude, just like the domestic courts, that M.K.’s escape and subsequent suicide had not been foreseeable for the hospital and was not therefore attributable to it. 54. From the above findings it also follows that the hospital did not act negligently in allowing M.K. to take walks on his own once his mental state had improved after 2 April 2010. As evident from the international law sources pertaining to the issue (see paragraphs 32-37 above) and as the Government has comprehensively argued, today’s paradigm in mental health care is to give persons with mental disabilities the greatest possible personal freedom in order to facilitate their re-integration into society. The Court considers that from a Convention point of view, it is not only permissible to grant hospitalised persons the maximum freedom of movement but also desirable in order to preserve as much as possible their dignity and their right to self-determination. It also follows from the case‑law on Article 5 of the Convention that a deprivation of liberty must be lifted immediately if the circumstances necessitating it cease to exist or change (see, for example, Winterwerp v. the Netherlands, 24 October 1979, § 39, Series A no. 33; Johnson v. the United Kingdom, 24 October 1997, § 60, Reports 1997‑VII; X v. Finland, no. 34806/04, § 149, ECHR 2012 (extracts); Stanev v. Bulgaria [GC], no. 36760/06, § 145, ECHR 2012; and Ruiz Rivera v. Switzerland, no. 8300/06, § 59, 18 February 2014) or must be scaled down to the extent which is absolutely necessary under the given circumstances (see, mutatis mutandis, Witold Litwa v. Poland, no. 26629/95, §§ 78 and 79, ECHR 2000‑III; Johnson, cited above, § 63; Luberti v. Italy, no. 9019/80, § 27 Series A no. 75). In the instant case, M.K. continued to be deprived of his liberty within the meaning of the Court’s case-law even after he was transferred to the open ward, in so far as he was required to give notice of his walks and return to the hospital afterwards, amongst other things. However, the hospital had scaled down the extent of the deprivation of his liberty without delay when his medication started to work and he was compliant with the hospital rules. In the circumstances of the present case, the Court agrees with the Government that the advantages of an open hospitalisation of M.K. clearly outweighed the disadvantages of the closed option. 55. In light of the above considerations the Court cannot find that the Austrian courts and authorities had disregarded their positive obligations flowing from Article 2 of the Convention. In this respect the Court would agree with the Austrian Supreme Court which found that if the hospital would have restricted M.K.’s liberty more than it did issues under Articles 3, 5 and 8 of the Convention might have arisen (see also Storck v. Germany, no. 61603/00, ECHR 2005–V; Shtukaturov v. Russia, no. 44009/05, ECHR 2008; and Stanev, cited above). 56. Looking at the procedural aspect of Article 2, the Court lastly notes that the domestic courts have thoroughly examined the case and have argued extensively why M.K.’s death could not be attributed to the authorities. There have been no apparent shortcomings in the investigation. 57. The foregoing considerations are sufficient to enable the Court to conclude that there has been no violation of Article 2 of the Convention under either its substantive aspect or under its procedural limb. FOR THESE REASONS, THE COURT, 1. Declares, unanimously, the application admissible; 2. Holds, by six votes to one, that there has been no violation of Article 2 of the Convention. Done in English, and notified in writing on 22 November 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Marialena TsirliAndrás SajóRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a) concurring opinion of Judge Sajó; (b) dissenting opinion of Judge Motoc. A. S.M. T. CONCURRING OPINION OF JUDGE SAJÓ 1. In the present case the applicant’s son, who was under a court order of involuntary placement, committed suicide after escaping from the open ward to which he had been transferred in the meantime. The applicant pleaded a violation of Article 2. Given the very stringent test that is applicable in similar circumstances (see Keenan v. the United Kingdom, no. 27229/95, § 90, ECHR 2001‑III)[1] I had to conclude that there was no real and immediate risk of which the authorities ought to have known, given the uncontested medical opinions. Therefore, I had to vote together with my colleagues finding no violation. 2. There are, however, some disturbing elements in this case. The applicant was under a court order of placement, and that order had been changed by the hospital personnel for medical reasons to facilitate his reintegration. It is true that the State is obliged to take immediate steps to facilitate release from detention and that under the Austrian Hospitalisation Act freedom of movement has to be restored as soon as the circumstances so permit. However, this cannot be done in breach of an unconditional court order, but must involve prompt judicial action; moreover, the person had already escaped twice in breach of the court order. Moreover, the Austrian Hospitalisation Act was silent on the issue of unaccompanied walks. Where a contrary judicial order has been issued, the silence of the law cannot be interpreted as authorisation. 3. The medical personnel took a professional decision to facilitate the integration of the applicant’s son. For the Court this seems to fit into an emerging trend in international law concerning persons with mental disorders, and in particular as a matter to be considered in the light of the “principle of least restriction” (see paragraph 32). Now the UN Office of the High Commissioner for Human Rights has issued a statement concerning Article 14 of Convention on the Rights of Persons with Disabilities (CRPD) (“the existence of a disability shall in no case justify a deprivation of liberty”) as meaning, in view of the CRPD Committee’s position, that “it is contrary to Article 14 to allow for the detention of persons with disabilities based on the perceived danger to themselves or to others.” (see paragraph 36). This approach resulted in the tragic loss of the applicant’s life, and it is now endorsed by the Court. I beg to differ: precaution is not paternalism. There was a judicial finding that such placement is necessary and there is no finding that this was not necessary for the above-mentioned purposes. 4. It must be added that the applicant complained exclusively under Article 2. Since the Court is master of the characterisation to be given in law to the facts of the case, it does not consider itself bound by the characterisation given by the applicant or the Government (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 54, 17 September 2009). Without prejudging the matter, I think that given the factual allegations of the application the case should have been reclassified and recommunicated under Articles 3 and 8. DISSENTING OPINION OF JUDGE MOTOC “With a truly tragic delusion,” Carl Jung noted, “these theologians fail to see that it is not a matter of proving the existence of the light, but of blind people who do not know that their eyes could see. It is high time we realized that it is pointless to praise the light and preach it if nobody can see it. It is much more needful to teach people the art of seeing.” ‑ Carl Jung This case is extremely important given the increasing number of deaths in custody and the rise in the number of persons with mental health problems. I respectfully disagree with the majority that the case presents no violation of Article 2 of the Convention. The majority sees no reason to question the finding of the Austrian domestic courts to the effect that M.K.’s escape and subsequent death had been neither foreseeable nor attributable to the hospital authority as a matter of negligence. On the facts, the majority agrees with the Court of Appeal and the Supreme Court that the hospital did not fail to comply with its positive obligations arising from Article 2 of the Convention and considers that restrictions on M.K.’s freedom of movement would have adversely affected his recovery process as well as raised questions related to the infringement of other articles of the Convention (see paragraphs 55-56 of the judgment). It is important to reiterate that the Court will respect the principle of subsidiarity; thus, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them. It follows that any assessment of the relevant facts and evidence that has previously been made in the domestic context must be taken into account. Thus, the Government’s submissions, which state that open psychiatry is the norm in the treatment of mentally ill patients and that restriction of the patient’s movement was no longer indicated or medically adequate in M.K.’s circumstances, will not be contested. These findings are the result of medical expert analysis and have already been appropriately reviewed in procedure and substance by the Austrian national courts. In the same way, it is difficult to contest the medical findings that M.K. had displayed no indication of an intention to take his own life, and thus, according to the jurisprudence on the matter, that his suicide was not foreseeable. The majority’s assessment considered whether there was a “real and immediate risk” that M.K. would try to commit suicide, which they rightly answered in the negative based on the present facts. The well‑established definition of “real and immediate” implies that the risk must be “substantial or significant” “not a remote or fanciful one” and “real and ever-present” (see cases such as Osman v. the United Kingdom, 28 October 1998, § 108, Reports of Judgments and Decisions 1998‑VIII, and Opuz v. Turkey, no. 33401/02, ECHR 2009). Considering that the risk of suicide was neither explicit nor recurring, or an overall and present worry in respect of the patient, the majority’s conclusion that there has been no violation of Article 2, as in the case of Keenan v. the United Kingdom, no. 27229/95, ECHR 2001‑III, was natural. I do not disagree with the majority in this finding. Rather, I argue that the main question which my colleagues, in line with the national courts, have addressed is not the correct one. In the circumstances of the forced hospitalisation of a mentally-ill person, Article 2 implies a positive obligation on the hospital authorities to take preventive operational measures to protect an individual from others or from him- or herself. The general duty of these authorities in cases concerning their obligation to protect the life of the person in their custody is to take all necessary and reasonable steps in the circumstances (see Keenan, cited above, § 91). The majority upholds the Austrian Government’s argument that the hospital authorities had indeed done all that was reasonable and necessary, since they did not and could not have known that M.K. was at risk of committing suicide at the relevant time. But this question is a truncated version of that posed in Keenan. The broader question, which is relevant in these circumstances, relates to the duty of the hospital authorities to know whether, at the time of the unsupervised walks, M.K. posed a real and immediate risk to his own life in general (and not merely at risk of deliberately committing suicide). I argue that his medical condition clearly indicated that he was at such a risk, and that in such circumstances giving him wide freedom of movement was not what could reasonably have been expected of the medical authority. The majority seems to focus too much on the foreseeability of suicide and disregards the foreseeability of an act of self-harm caused by a delusional thought. In both medical testimony and the Government’s arguments it is stated that M.K. still posed a threat to himself on account of his delusional status. It is stated repeatedly in the applicant’s claim and acknowledged in the Government’s counter-claim that self-harming behaviour is likely to occur outside the hospital environment due to overstimulation, especially in patients with M.K.’s condition. Thus, I cannot agree with the finding of the Court of Appeal, endorsed by both the Supreme Court and the majority of my colleagues, that “there is no causal link between the wholly unexpected suicide of the applicant’s son and the alleged dereliction of the hospital’s duty of supervision” (see paragraph 20 of the majority judgment). If the national courts were really to have taken the symptoms of paranoid schizophrenia into consideration, they would naturally have contemplated whether a delusional patient might put himself in harm’s way as a result of a psychotic episode, without any intention of actually taking his own life. Once this is established, the State authorities are under an operational obligation to take reasonable measures and to act with due diligence. It is clear that keeping M.K. in a locked ward would have been detrimental to the process of his recovery, but in view of the foreseeable danger to his safety, the hospital authorities were required to strike a balance between taking all necessary precautions in the circumstances and respecting his freedom of movement. The majority argued that the hospital was reasonable in allowing the patient to go on unsupervised walks and to report back at his convenience, in view of his seemingly improved state which gave no indication of suicidal thoughts. If the envisaged consequences of M.K.’s freedom are not suicide-related but escape-related, then I would argue that the total lack of supervision represents a complete forfeiture of any obligational duty to implement reasonable measures. Although the patient showed signs of improvement, he had already tried to escape on two previous occasions. This cannot be completely disregarded when weighing the benefits of open treatment against its downfalls. As unfamiliar environments are likely to trigger delusional fits in patients with M.K.’s diagnosis, his escape should have been a real issue for the hospital authorities and should have implied at least some minimal procedural obligations. The medical authorities failed to carry out such a balancing exercise, and by giving the patient such wide exposure to new surrounding they placed him in a dangerous environment which eased the triggering of his delusions and paranoid state (see Reynolds v. the United Kingdom, no. 2694/08, 13 March 2012). I also disagree with the Austrian Government’s statement that “[t]he behaviour of M.K. had not been foreseeable ... and the fact that the risk of self-harm could never be entirely excluded in the case of psychotic patients did not change this assessment” (see paragraph 21 of the judgment). Article 2 of the Convention also implies a duty to investigate in circumstances where a patient such as M.K. takes his or her own life. It is evident that it is no longer possible to determine whether the applicant’s son deliberately committed suicide or followed a delusional impulse. Nevertheless, an investigation into the patient’s vulnerability and the level of risk he posed to himself on account of his condition could have been conducted to determine the degree of control the hospital ought to have exercised over him in order to guarantee his safety during his walks. Thus, the fact that a psychotic patient faces a risk of self-harm is highly relevant to the circumstances at hand. It, firstly, implies a need for medical examinations into the patient’s specific condition and, secondly, indicates that the hospital should be cautious, so as to ensure that it does not unduly provoke a psychotic episode which would increase the patient’s chances of self-harming. M.K.’s therapeutic walks could still have assisted his recovery even had some additional supervisory measures been put in place by the authorities. Thus, a balance could have been achieved, by granting him the freedom of movement that was deemed beneficial, while still policing against his foreseeable tendency to escape, which could have been anticipated to have destructive consequences. In these circumstances, I have to agree with the applicant and the Regional Civil Court, to the effect that the hospital authority has breached its positive duty under Article 2 by failing to impose some procedural safeguards to ensure that the patient would not escape from the hospital premises, as it was foreseeable that any such escape could be fatal in the light of his diagnosis. To conclude, the duty to protect the right to life should not be sacrificed in an attempt to comply with the above-mentioned recent trend in healthcare. I cannot disagree with the findings of the majority, to the effect that the advantages of an open hospitalisation regime are far greater in the treatment of persons in M.K.’s state than an entirely restricted hospital regime. Nevertheless, a balance must be struck in providing this “open” medical care, while still ensuring that the hospital authority imposes certain safeguards in order to comply with its positive obligations under Article 2. I strongly believe that no such balance has been reached in the circumstances at hand. [1]1. “For a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.”

FIRST SECTION CASE OF TAGAYEVA AND OTHERS v. RUSSIA (Application no. 26562/07 and 6 other applications – see list appended) JUDGMENT STRASBOURG 13 April 2017 FINAL 18/09/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. Table of Contents PROCEDURE THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. General information B. The events of 1 to 4 September 2004 1. Situation prior to the hostage-taking on 1 September 2004 2. Hostage-taking 3. Events of 1 to 2 September 2004 4. Storming and rescue operation 5. Events of 4 September 2004, identification of bodies and burials 6. Assuming responsibility for the terrorist act C. Criminal investigations 1. Criminal investigation no. 20/849 2. Criminal investigation in respect of Mr Nurpashi Kulayev 3. Criminal proceedings against police officers D. Civil proceedings brought by the victims 1. First group of claimants 2. Second group of claimants E. Parliamentary inquiries 1. Report prepared by the North Ossetian Parliament 2. The Federal Assembly report F. Other relevant developments 1. Humanitarian relief 2. Other important public and media reactions 3. Victims’ organisations G. Expert reports submitted by the applicants after the admissibility decision 1. Expert report on counter-terrorism 2. Expert report on medical (forensic) aspects of the operation II. RELEVANT DOMESTIC LAW AND PRACTICE A. Regulation of anti-terrorist operations and the use of force 1. Suppression of Terrorism Act and Criminal Code 2. Field Manuals B. Amnesty Act III. RELEVANT INTERNATIONAL LAW AND PRACTICE A. Use of force by law-enforcement officials B. International humanitarian law THE LAW I. PRELIMINARY ISSUES II. ALLEGED VIOLATIONS OF ARTICLE 2 OF THE CONVENTION (ALL APPLICANTS) A. Article 2 - positive obligation to prevent threat to life 1. The parties’ submissions 2. The Court’s assessment B. Procedural obligation under Article 2 of the Convention 1. The parties’ submissions 2. The Court’s assessment III. ALLEGED VIOLATIONS OF ARTICLE 2 OF THE CONVENTION (APPLICATIONS Nos. 26562/07, 49380/08, 21294/11, 37096/11 AND 14755/08) A. Planning and control of the operation 1. The parties’ submissions 2. The Court’s assessment B. Use of lethal force 1. The parties’ submissions 2. The Court’s assessment IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION (ALL APPLICANTS) A. The parties’ submissions 1. The applicants 2. The Government B. The Court’s assessment 1. General principles established in the Court’s case-law 2. Application of the above principles in the present case V. APPLICATION OF ARTICLES 41 AND 46 OF THE CONVENTION A. Non-monetary measures B. Damage 1. The first group of applicants 2. The second group of applicants 3. The Government 4. The Court’s assessment C. Costs and expenses 1. The first group of applicants 2. The second group of applicants 3. The Government 4. The Court D. Default interest In the case of Tagayeva and Others v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Linos-Alexandre Sicilianos, PresidentMirjana Lazarova Trajkovska,Khanlar Hajiyev,Julia Laffranque,Paulo Pinto de Albuquerque,Erik Møse,Dmitry Dedov, judges,and Abel Campos, Section Registrar, Having deliberated in private on 14 October 2014, 9 January 2017 and on 15 March 2017, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in seven applications (see Appendix for details) lodged between 25 June 2007 and 28 May 2011 against the Russian Federation with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by 447 Russian nationals. One group of applicants (“the first group of applicants”, applications nos. 26562/07, 49380/08, 21294/11 and 37096/11) were represented by Mr Kirill Koroteyev, a lawyer of EHRAC/Memorial Human Rights Centre, an NGO with offices in Moscow and London, assisted by Ms Jessica Gavron, advisor; and the remaining applicants (“the second group of applicants”, applications nos. 14755/08, 49339/08 and 51313/08) by Mr Sergey Knyazkin and Mr Mikhail Trepashkin, lawyers practising in Moscow. A complete and updated list of 409 applicants and their representatives is set out in the Appendix. 2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3. By a decision of 9 June 2015, following a hearing on admissibility and the merits (Rule 54 § 3), the Court declared the applications partly admissible. On the same date the Court decided that the applications should be joined pursuant to Rule 42 § 1 of the Rules of Court. 4. The parties replied in writing to each other’s observations on the merits. THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. General information 5. The applicants raised various issues related to the terrorist attack, siege and storming of school no. 1 in Beslan, North Ossetia, Russia, from 1 to 3 September 2004. Some applicants were held hostage and/or injured, while others had family members among those taken hostage, killed or injured. Information in respect of each applicant is summarised in the Appendix. 6. While most events are relevant for all the applicants, their position in the domestic proceedings differed somewhat. However, given the number of applicants, the extent of the domestic procedures and the difficulties associated with establishing each applicant’s procedural role, the present judgment refers to them collectively as “the applicants”. This is based on the assumption that their position in the domestic proceedings was relatively similar, whether or not each of them participated in a given procedural step, either directly or through their representatives (see Abuyeva and Others v. Russia, no. 27065/05, § 181, 2 December 2010). 7. The anti-terrorist operation mounted from 1 to 4 September 2004 involved a number of State agencies. The documents in the case file refer to the police, internal troops of the Ministry of the Interior, army servicemen of the Ministry of the Defence and officers of the Federal Security Service (Федеральная Служба Безопасности (ФСБ) – hereinafter “the FSB”). Unless otherwise specified, the terms “security personnel” or “security forces” used in the present judgment apply to any of those State agents. Equally, the terms “anti-terrorist” or “security operation” are used to describe the operation of 1 to 4 September 2004. 8. The voluminous material in the case files lodged by the applicants and submitted by the Government include documents from four criminal investigations, three criminal trials, two sets of civil proceedings for compensation, two reports by parliamentary groups and one dissenting opinion thereon, books and articles written in the aftermath, copies of forensic and expert reports in respect of each applicant and/or their relatives, the applicants’ own statements to the Court and independent expert reports. The statement of facts below is a succinct summary of the documents mentioned above and other publicly available information. B. The events of 1 to 4 September 2004 1. Situation prior to the hostage-taking on 1 September 2004 (a) Terrorist attacks in 2004 9. The year 2004 saw a surge of terrorist acts in Russia involving numerous civilian victims. Mr Shamil Basayev, the underground leader of the Chechen separatist movement, either claimed responsibility or was held responsible for these acts. 10. On 6 February a suicide bomber killed over forty people and wounded over 250 on an underground train in Moscow. 11. In February and March several explosions in the Moscow Region damaged gas pipelines, a heating station and electricity pylons. 12. On 9 May the President of Chechnya, Mr Akhmat Kadyrov, and several senior officials were killed by a bomb in a stadium in Grozny. 13. On 21 and 22 June a large group of armed rebel fighters attacked Nazran, Ingushetia’s largest town. They primarily targeted police stations and other security offices; over ninety people were killed and an ammunition warehouse was looted. 14. On 24 August two civilian aeroplanes which had departed from Moscow Domodedovo Airport simultaneously exploded in mid-air; ninety people lost their lives. 15. On 31 August a suicide bomber blew himself up at the entrance to an underground station in Moscow, killing ten and wounding about fifty others. (b) Evaluation of the terrorist threat in North Ossetia 16. On 18 August 2004 the North Ossetian Ministry of the Interior issued the following telex (no. 1751) to all local departments of the interior: “[The North Ossetian Ministry of the Interior] has received information indicating the movement of participants of [illegal armed groups] from the plains of [Ingushetia] and [Chechnya] to the mountainous and forested area along the border of [Ingushetia] and [North Ossetia]. A meeting of the fighters is presumably planned for mid-August of this year, following which they are intending to commit a terrorist act in [North Ossetia] similar to that in Budennovsk. According to the available information, the fighters plan to capture a civilian object with hostages in the territory of [North Ossetia], and then submit demands to the country’s leadership for the withdrawal of troops from [Chechnya]. A large sum of money in [a foreign] currency has apparently been transferred from Turkey. [This information is being] transmitted in order for preventive measures to be taken.” 17. On 27 August 2004 the North Ossetian Ministry of the Interior issued Decree no. 500 on the protection of public order and security during the Day of Knowledge in the educational facilities of North Ossetia, which was sent to all district police stations. The plan provided for heightened security awareness and an increase in the number of mobile posts and police officers near public gatherings, and contained a series of measures aimed at the prevention of terrorist acts and hostage-taking during public gatherings on the Day of Knowledge in the settlements situated along the administrative border with Ingushetia. The plan further stipulated that each head of the district departments of the Interior should inform the administrations of educational facilities accordingly, put in place working plans for every such gathering and personally inform police staff of their functions, carry out hourly updates of the situation at public gatherings, give immediate feedback to the North Ossetian Ministry of the Interior and provide contingency staff in each police department. 18. On 25, 27 and 28 August 2004 the North Ossetian Ministry of the Interior issued three other telexes to the local departments concerning security measures to be taken during the Day of Knowledge, heightened terrorist threats in the region and the prevention of possible attacks. The personnel of the Ministry of the Interior were put on high alert (усиленный режим несения службы). (c) Preparations for the hostage-taking in Beslan 19. As revealed by subsequent investigations, towards the end of August 2004 a sizeable group of terrorists (at least thirty people) were camping and training between the villages of Psedakh and Sagopshi in the Malgobek District of Ingushetia. In the early hours of 1 September 2004 the group crossed the administrative border between Ingushetia and North Ossetia, driving a GAZ-66 utility truck. 20. At 7.30 a.m. on 1 September 2004 Major S.G. from the North Ossetian Ministry of the Interior stopped the vehicle for an inspection at the administrative border with Khurikau. The terrorists disarmed him, placed him in the back seat of his own white VAZ-2107 and drove to Beslan. Major S.G. escaped and later testified about these events. 2. Hostage-taking 21. At 9 a.m. on 1 September 2004 school no. 1 in Beslan, North Ossetia, held a traditional Day of Knowledge ceremony to mark the opening of the academic year. Over 1,200 people gathered in the courtyard of the E‑shaped two-storey building located on Kominterna Street in the centre of the town, whose population was approximately 35,000. The school was situated next door to the district police station of Pravoberezhny (Правобережный районный отдел внутренних дел (РОВД) – hereinafter “the Pravoberezhny ROVD”). The gathering included 859 schoolchildren, sixty teachers and staff of the school and members of their families. Dozens of children below the age of six were in the crowd with their parents, since several kindergartens in Beslan were closed on that day for various reasons. One unarmed police officer, Ms Fatima D., was at the ceremony. 22. According to some sources, on the morning of 1 September 2004 the Beslan traffic police were called to secure the passage of Mr Dzasokhov, the North Ossetian President, through the town. The applicants referred to the testimony of the traffic policemen and servicemen of the Pravoberezhny ROVD, saying that they had been instructed to take various positions along the route of Mr Dzasokhov’s convoy, and thus leave the school unprotected. 23. During the first few minutes of the ceremony, at about 9.05 a.m., a group of at least thirty-two people (the number of terrorists is disputed – see below) armed with various weapons, including machine guns, explosives and handguns, surrounded the people in the school courtyard and, shooting in the air, ordered them to enter the school through the main door and through smashed windows on the ground floor. A GAZ-66 vehicle entered the yard through the main gates and a group of terrorists jumped out. According to some witnesses, some other terrorists came from behind the school and another group was already in the building. 24. The terrorists in the main courtyard fired into the air and there was an exchange of fire with local residents and the police. At least two local residents were killed (Mr R. Gappoyev and Mr F. Frayev) and some were wounded during the shooting. It also appears that two terrorists were wounded. About one hundred people, mostly adults and senior students, managed to escape. Another fifteen people hid in the boiler building, from where they were rescued later in the day. 25. Despite the initial chaos, the terrorists managed to round up the majority of those in the courtyard – 1,128 people (the exact figure is disputed by some sources), including about 800 children aged between several months and eighteen years. Several groups of hostages initially tried to hide inside the school or escape through fire exits, but the terrorists were in firm control of the building and escorted everyone to the gymnasium. 26. The hostages were assembled in a gymnasium located on the ground floor in the central part of the building and measuring about 250 square metres. The terrorists informed them that it was a terrorist act and that they had to obey their orders. The hostages’ personal belongings, mobile telephones and cameras were confiscated, and they were ordered to sit on the floor. 27. The attackers then proceeded to arrange a system of improvised explosive devices (IEDs) around the gymnasium, using basketball hoops and gymnasium ladders for support. Male hostages were forced to assist them in this task, which was completed within about two hours. A single chain connected several smaller IEDs hanging above the hostages’ heads, two large IEDs attached to basketball hoops on the opposite walls of the gymnasium and several heavier ones placed on the floor. Some IEDs were filled with parts such as metal pellets, screws and bolts. They were connected by wire to pedal detonators (“dead man’s switches”), which two of the terrorists took turns to hold. Two women wearing ample black clothes with explosive belts underneath – suicide bombers – remained in the gymnasium among the hostages. 28. The attackers smashed the windows of the gymnasium, to allow air and probably avoid the use of gas as a means of attack. Several rooms around the school building were turned into firing points, with windows smashed and stocks of food, water and ammunition set out. During the course of the day the terrorists kept shooting out of the school windows in the direction of the security personnel and civilians gathered outside. 29. At 9.25 a.m. the Ministry of the Interior in Vladikavkaz received information about the seizure of the school. It was immediately transmitted to Mr Dzasokhov and the FSB. 3. Events of 1 to 2 September 2004 (a) The hostages’ situation 30. The hostages were forced to sit in very cramped conditions on the floor of the gymnasium. During the first few hours of captivity some families remained separated, but they were allowed to reunite later during the day. 31. The hostages were ordered to keep quiet and not to speak in languages other than Russian. Mr Ruslan Betrozov, whose two sons were in the gymnasium, repeated the captors’ orders in Ossetian. One of the terrorists walked up to him and executed him in full view of everyone in the gymnasium by shooting him from close range; his body was not removed until several hours later. Mr Betrozov’s sons Alan (born in 1988) and Aslan (born in 1990) witnessed the execution; both boys died on 3 September 2004 during the storming. Another father of three, Mr Vadim Bolloyev, was shot in the shoulder during the first few hours of the crisis for apparently refusing to obey the terrorists’ orders. By the end of 1 September he had died in the gymnasium. His younger son Sarmat (born in 1998) survived the attack, but his two daughters Zarina (born in 1993) and Madina (born in 1995) died during the storming. 32. During the course of the day on 1 September 2004 the attackers allowed groups of children, under their escort and accompanied by adults, to access the toilets outside the sports hall to drink tap water. They also ordered senior students to bring water into the hall in buckets and distribute it among the hostages in small quantities. The terrorists also took a large television into the gymnasium and on several occasions turned on the radio so that some of the hostages could hear about the events on the news. 33. On 1 September the terrorists allowed the elderly and sick hostages and some mothers with nursing babies to stay in a smaller adjacent weights room, where they could stretch out on the floor. They were later taken into the sports hall. 34. From 2 September the terrorists refused to allow the hostages water and ordered them to use buckets to relieve themselves and to drink their own urine. They announced to the hostages that the tap water had been poisoned and that they would be undergoing a “dry hunger strike” in support of their captors’ demands. Some chewed the leaves of interior plants in order to relieve their thirst. Survivors later complained of severe thirst and heat on 2 and especially 3 September 2004. (b) Execution of male hostages 35. From the outset the terrorists separated most of the men and forced them to perform various tasks in order to fortify the building, or put in place IEDs. They were told that their disobedience would lead to the execution of women and children in the hall. 36. On the morning of 1 September two men were ordered to lift up floorboards from the library floor. Floorboards were also lifted from the corners of the gymnasium. Others were ordered to move furniture and blackboards to the windows of various classrooms and corridors. 37. On the afternoon of 1 September several men were lined up in the corridor of the ground floor. An explosion occurred there at 4.05 p.m., as a result of which several male hostages were killed or injured. One (or two) women suicide bombers and one terrorist of Arab descent were killed by this blast. Several explanations for that explosion were put forward; the criminal investigation accepted that the terrorist in charge of the operation, Mr Khuchbarov, “Polkovnik” (Colonel), had executed the male hostages whom the terrorists had no longer needed and at the same time had activated the explosive belt of one of the suicide bombers because she had objected to the treatment of the children. Some of the surviving hostages testified that there had been an attack from the outside, as a result of which the explosive belt had detonated killing the female bomber, the Arab terrorist and several hostages. 38. Men who survived the explosion in the corridor were finished off with automatic rifles. Karen Mdinaradze survived the explosion and the ensuing execution. When the terrorists discovered that he was still alive, he was allowed to return to the gymnasium, where he fainted. He later testified about these events. At about 4.30 p.m. on 1 September the terrorists forced two men to throw bodies out of a window on the first floor. One of them, Aslan Kudzayev, jumped out the window and was wounded but survived. His wife, one of the applicants, was released on 2 September with their infant daughter; their other daughter remained in the gymnasium and received injuries during the storming. 39. According to the investigation, sixteen men were killed by the terrorists on 1 September. Another sixteen people were wounded that day as a result of shots fired by the terrorists. 40. At about 3 p.m. on 2 September the terrorists fired several rounds from automatic weapons from the windows of the school, although it appears that no one was hurt and there was no return fire. (c) Negotiation attempts 41. At around 11 a.m. on 1 September the terrorists passed a note to the authorities via one of the hostages. Mrs Larisa Mamitova, an ambulance doctor, walked to the school gates, handed the note to a man who approached her and walked back; in the meantime her young son was being held at gunpoint inside the building. The note contained a mobile telephone number and the names of the people with whom the terrorists wanted to negotiate: the North Ossetian President Mr Dzasokhov, the Ingushetian President Mr Zyazikov and a paediatrician, Dr Roshal. The note also stated that the school building had been mined and would be blown up in the event of an attempt to storm it, and that the terrorists would shoot fifty hostages for any one of them killed. However, it appears that the mobile telephone number had either been wrongly noted or was switched off, as no telephone contact could be established at that time. 42. At 1 p.m. on 1 September the Russian State television programme “Vesti” announced that the attackers had transmitted a videotape to the authorities, containing their demands and images filmed inside the school. One hour later it was announced that the videotape was empty. Later, the very existence of this videotape remained disputed. 43. Around 4 p.m. on 1 September Mrs Mamitova took out a second note, containing a corrected mobile telephone number and the name of another possible negotiator, Mr Aslakhanov, an aide to the Russian President. She also told the person who collected the note that there were over 1,000 hostages inside the building. 44. The authorities contacted the terrorists through a professional negotiator, the FSB officer Mr Z. His attempts to discuss proposals aimed at alleviating the hostages’ conditions and the possibility of exiting or surrendering or removing bodies from the school courtyard remained futile. 45. Dr Roshal arrived in Beslan on the afternoon of 1 September 2004. When he called the hostage takers, on 1 and 2 September, they were hostile and told him that they would only enter into negotiations if all four people requested by them came to the school. They told him that if he attempted to enter alone, he would be killed. They also refused to accept food, water or medicine, and forbade him from entering the building to examine the sick and wounded. 46. On 2 September the former President of Ingushetia, Mr Ruslan Aushev, arrived in Beslan at the request of the operative headquarters (“the OH”). It appears that at about 3 p.m. he, for the first time, telephoned Mr Akhmed Zakayev, the head of the self-proclaimed Chechen separatist government who was living in London. He told Mr Zakayev about the siege and said that the number of hostages exceeded 1,000. 47. Following telephone contact with the terrorists, at 3.30 p.m. on 2 September, Mr Aushev was allowed to enter the school. He was the only person whom the terrorists agreed to let inside during the siege. Mr Aushev was led to the gymnasium and had a meeting with the leader of the terrorists, Mr Khuchbarov (“Polkovnik”). 48. Following negotiations, Mr Aushev was permitted to leave with twenty‑six (other sources indicate twenty-four) people – nursing mothers and their babies. All the women had older children in the school and were forced to leave them behind. 49. Mr Aushev took out a message from Mr Shamil Basayev addressed to the Russian President, Mr Vladimir Putin. It demanded that troops be pulled out of Chechnya and official recognition of Chechnya as an independent State. In return, it promised that terrorist activities in Russia would end “for the next ten or fifteen years”. It made no mention of the school siege. It appears that the terrorists also gave Mr Aushev a videotape depicting part of his visit, the gymnasium with the hostages, explosive devices and one terrorist holding his foot on a “dead man’s switch”. It also contained a statement by Mr Khuchbarov that the negotiations should involve Mr Aslan Maskhadov, the President of the self-proclaimed independent Chechen State, who had been in hiding at the time. 50. On 2 September and on the morning of 3 September the attackers tried to contact the North Ossetian authorities of North Ossetia with the assistance of the school director, Mrs Tsaliyeva. Two hostages – children of the head of the North Ossetian Parliament, Mr Mamsurov – were allowed to call their father on his mobile telephone and tell him that they were suffering without water and food. It appears that family members of other possible contacts among officials and public figures (district prosecutor, a well-known sportsman) were singled out by the terrorists but no contact was established. 51. In parallel to the negotiations carried out through Mr Z., on 2 September direct contact with the terrorists was established through Mr Gutseriyev, an influential businessman of Ingush origin. He supplied Mr Aushev with the requisite telephone numbers, participated in conversations with Mr Akhmed Zakayev and eventually tried to liaise with Mr Maskhadov. 52. As can be seen from various information sources, at around 5 p.m. on 2 September Mr Aushev, Mr Dzasokhov and Mr Zakayev had a telephone conversation during which Mr Zakayev promised to involve Mr Maskhadov in the negotiations (see paragraphs 129, 321, 331, 339 below). Some sources indicate that these talks apparently resulted in Mr Maskhadov agreeing to go to Beslan. (d) Coordination of the authorities’ actions and the involvement of army and other security detachments 53. At about 10.30 a.m. on 1 September 2004 the OH started to function on the premises of the Beslan town administration. The exact composition, leadership and powers of this structure remain disputed. According to most sources, it was initially headed by Mr Dzasokhov, the North Ossetian President, and as of 2 September by General V. Andreyev, the head of the North Ossetian FSB. It was later established that the OH included the deputy head of the counter-terrorism commission of North Ossetia Mr Tsyban, the Minister of the North Ossetian Ministry of Emergency Situations (Emercom) Mr Dzgoyev, the North Ossetian Minister of Education Mrs Levitskaya, deputy head of the information programmes department of the State television company, Rossiya, Mr Vasilyev and the commander-in-chief of the 58th Army of the Ministry of Defence General Sobolev (see paragraphs 130, 158, 183, 312-333 below). 54. The detachments of the 58th Army started to arrive in Beslan during the afternoon of 1 September. On 2 September 2004 eight armoured personnel carriers (APCs) and several tanks of the 58th Army arrived. They were placed under the command of the FSB special purpose units and positioned around the school out of the terrorists’ sight. 55. In the early morning of 3 September the FSB special purpose units went to Vladikavkaz for joint training with the Ministry of the Interior and the Ministry of Defence to prepare for a possible storming. (e) Situation with the hostages’ relatives outside the school 56. Thousands of people in Beslan were directly affected by the crisis. 57. Despite the attempts of the authorities to clear the area, local residents and ethnic Ossetians from outside Beslan, some of whom were armed, remained around the school building throughout the siege. 58. On the afternoon of 1 September the hostages’ relatives were invited to the town’s Cultural Centre. Until the end of the siege the Cultural Centre remained a hub for communicating with relatives and providing medical and psychological assistance to them. 59. At 7 p.m. on 1 September the North Ossetian President Mr Dzasokhov, the deputy speaker of the North Ossetian Parliament Mr Kesayev and the North Ossetian Deputy Minister of the Interior Mr Sikoyev met with relatives in the Cultural Centre. During the meeting Mr Sikoyev informed them that the terrorists had not put forward any demands and had refused to accept food, water or medicine for the hostages. 60. At about 9.30 p.m. on 1 September Dr Roshal participated in the meeting at the Cultural Centre. He assured those present that the conditions in the school were “acceptable” and that the hostages could survive for several days without food or water. He also stated that the terrorists had not put forward any demands to the authorities. 61. On 2 September a psychological aid unit was set up at the Cultural Centre. 62. Late in the evening of 2 September Mr Dzasokhov held another meeting with the relatives at the Cultural Centre. 63. At 11.15 a.m. on 3 September he announced to the relatives that there would be no storming and that “new public figures” had appeared in the negotiation process. 64. Some of the applicants were among the relatives who had gathered outside the school building or stayed at the Cultural Centre, and submitted written statements describing the events. (f) Information about the crisis 65. From the outset the information about the hostage-taking was strictly controlled by the authorities. Mr Vasilyev, a member of the OH and a senior employee of Rossiya, was put in charge of contacting the journalists. 66. On the afternoon of 1 September the media announced, referring to official sources, that about 250 people had been taken hostage. Later that day the media reported a “corrected” number of hostages: 354 people. According to some hostages, this news outraged the terrorists and prompted them to execute men or throw their bodies out of the window. It also transpires from the hostages’ statements that after the announcements the terrorists refused to allow them to drink or go to the toilet, saying that “there should be no more than 350 of you left anyway” (see paragraph 285 below). 67. On the evening of 2 September Dr Roshal held a press conference. He announced that he had talked on the telephone to a terrorist nicknamed “Gorets” (highlander), who had put forward no demands. 68. At 1 p.m. on 3 September State television showed some of the terrorists’ relatives of Ingush origin asking them to release the hostages. One woman, the wife of a presumed hostage taker, said that she and her children were being held somewhere “against their will” and asked her husband to do everything “to avoid harming the children”. 4. Storming and rescue operation (a) Morning of 3 September 2004 69. The hostages in the gymnasium were extremely exhausted and suffered from thirst and hunger. They had gone two days without sleep in cramped conditions and the physical state of many had worsened: people started to lose consciousness and some children were hallucinating, having seizures and vomiting. 70. In the early morning the terrorists lifted the IEDs in the gymnasium from the floor, hanging them along the walls. 71. At 11.10 a.m. the terrorists agreed to a request by Mr Aushev and Mr Gutseriyev to allow Emercom to collect the bodies from the school courtyard. 72. At about noon Mr Dzasokhov informed the OH that he had reached some sort of agreement with Mr Zakayev (see paragraph 331 below). According to some sources, that agreement could have extended to the possibility of Mr Maskhadov arriving in Beslan. 73. At 12.55 p.m. an Emercom truck and four officers entered the school courtyard. The men had Mr Gutseriyev’s mobile telephone to communicate with the terrorists. One of the terrorists came out and supervised their work. The explosions inside the gymnasium at 1.03 p.m. came unexpectedly to the group. The ensuing exchange of gunfire resulted in two officers being killed. (b) The first three explosions in the gymnasium 74. At 1.03 p.m. a powerful explosion occurred in the upper east part of the gymnasium. Part of the roof was destroyed, the insulation caught fire and fragments of the burning ceiling and roof fell into the gymnasium, killing and injuring those seated underneath. Many of the surviving hostages described the first explosion as a “fireball” or “column of fire”, followed by silvery white powder falling from the ceiling. It appears that the explosion caused a fire in the roof space of the gymnasium (see paragraph 288 below). Twenty seconds later another explosion ripped through the lower part of the wall under the first window on the north-east side. The nature and origins of these explosions are disputed (see documents referred to below). 75. The two explosions killed both terrorists who had been holding the detonators, though most of the IEDs remained intact (see paragraph 307 below). Dozens of people were killed, others were wounded or received burns of varying degrees, and almost everyone was shell-shocked. Many applicants submitted witness statements about these events. 76. Those who could move and were able to reach the opening in the wall on the north side started to climb through it and run outside. The terrorists fired at them from the upper floor, prompting an exchange of gunfire between the terrorists and the security forces. 77. At this point General Andreyev issued an order to storm the building and proceed with the rescue operation and neutralisation of the terrorists. 78. Several terrorists were killed or wounded during the first two explosions but the majority of them survived, including “Polkovnik”. They rounded up the survivors in the gymnasium (about 300 people) and forced them to walk to other parts of the main building, mostly in the south wing: the canteen, the kitchen, a meeting room and craft classrooms. Some hostages remained in the rooms adjacent to the gymnasium, namely the weights room and changing rooms. 79. The dead, injured and shell-shocked remained in the gymnasium, where fire continued to spread in the roof space. 80. At about 1.30 p.m. a third powerful explosion occurred in the south part of the gymnasium, which appears to have been caused by one of the large IEDs catching fire. Soon afterwards flames spread around the gymnasium, taking to the floor and walls. Some hostages continued to escape through the openings in the walls. 81. Between 1.30 and 2.50 p.m. servicemen of the security services and local residents broke the west wall of the gymnasium and entered the hall. They helped to evacuate survivors. Their movements were covered by an APC which went close to the school. No terrorists were found there, but the gymnasium was under fire, probably from terrorist snipers on the first floor. 82. At about 1.40 p.m. part of the burning roof collapsed. 83. Hundreds of wounded hostages and servicemen were taken to the Beslan Hospital in private cars and ambulances. A field hospital had been set up by Emercom in the hospital courtyard in order to sort the wounded and cope with the influx of casualties. Many of the injured were taken to hospitals in Vladikavkaz. The hostages’ relatives were not allowed to enter the hospital. Over 750 civilians and over fifty servicemen received medical help on 3 September 2004 (see paragraphs 242 et seq. below). (c) Hostages in the south wing 84. Over 300 hostages who had survived the explosions and fire in the gymnasium were taken by the terrorists to the canteen and kitchen situated on the ground floor in the south wing. Other hostages were taken to the main meeting room situated above the canteen on the first floor. There they found stocks of water and food and could relieve their thirst for the first time in two and a half days. 85. The women and children in the canteen and meeting room were forced by the terrorists at gunpoint to stand in the windows as human shields and wave their clothes; some were killed or wounded by gunfire and explosions. (d) Ensuing fighting 86. As shown by many of the witness statements, but not corroborated by the results of the criminal investigation, after 2 p.m. a tank with hull number 320 entered the schoolyard and fired several rounds at the canteen. It appears that another tank with hull number 325 or 328 also fired at the school from a distance of about 20 to 30 metres. Some of the rounds were fired with solid shots, while others were probably done with ammunition (see paragraphs 293, 294, 298, 303, 411 below). 87. Two APCs entered the schoolyard and took part in the fighting with their large-calibre machine guns. 88. The army and the FSB assault troops were positioned on the roofs of 37, 39 and 41 Shkolny Lane, five-storey apartment blocks located on the east side of the school. These servicemen fired at the school with portable grenade launchers and flame-throwers, although the exact timing of the attacks is disputed (see paragraphs 142, 293, 300, 408, 410 below). Two MI‑24 helicopters circled above the school. According to some sources, although not corroborated by the official investigation, at least one rocket was launched from a helicopter on the school roof (see paragraph 410 below). 89. At 3.10 p.m. the OH ordered fire brigades with water cannons to intervene, by which time the gymnasium was ablaze and other parts of the building were on fire (see paragraphs 150, 199, 304 below). At the same time the head of the OH ordered the servicemen of the FSB special forces units Alfa and Vympel to enter the building. 90. At about 3.30 p.m. the entire roof of the gymnasium collapsed. After 4.30 p.m. the fire was contained; the servicemen of the special forces and firefighters entered the gymnasium, but found no survivors. 91. It appears that the servicemen of the special forces entered the canteen at about 4 p.m. through the openings in the walls and through the windows whose metal bars had fallen off as a result of the explosions or having been pulled out with an APC. Amid fierce fighting they evacuated the surviving hostages. 92. Numerous bodies of terrorists and hostages were found in the canteen, meeting room and rooms and corridors of the south wing. 93. At about 5 p.m. a strict security perimeter was established around the school. All civilians, Emercom staff, firefighters and servicemen of the army were ordered to leave, leaving only the FSB special forces inside. At about 5.25 p.m. the servicemen of the FSB special units held a minute’s silence in the corridor of the south wing in order to honour the memory of their comrades: ten members of the elite Vympel and Alfa units, including three group commanders, had lost their lives and about thirty were wounded – the biggest losses ever sustained by the units in a single operation. 94. After 6 p.m. several shots were fired at the south wing of the building from anti-tank missiles and flame-throwers. 95. At about 9 p.m. two tanks fired at the school. Several powerful explosions followed, which completely destroyed the walls and roof of the craft classrooms in the south wing. 96. The gunfire and explosions at the school continued until past midnight. 97. One terrorist, Nurpashi Kulayev, was captured alive. The rest, it appears, were killed during the storming. Consistent rumours circulated that some terrorists had escaped or had been captured secretly. 5. Events of 4 September 2004, identification of bodies and burials 98. On the night of 4 September President Putin arrived in Beslan and stayed for several hours. He visited the town hospital and administration. 99. The school building had remained surrounded by soldiers throughout the day. 100. At 7 a.m. Emercom staff started to collect the bodies and clear the debris. Between 112 and 116 charred bodies were found in the gymnasium, and about eighty bodies in the adjacent changing rooms and weights room. It appears that between 106 and 110 bodies were found in the south wing of the school and on other premises, although no exact information was recorded in this respect (see paragraphs 119-122 below). The bodies of eighteen men were collected from the courtyard. About 330 bodies (including those of over 180 children) were placed in the schoolyard and taken to the Vladikavkaz morgue. 101. Later during the day on 4 September bulldozers and trucks arrived at the school. The remaining debris was loaded onto trucks and taken to the town rubbish dump. The victims alleged that they and other locals had later found a number of important items of evidence among this rubbish, including the terrorists’ personal belongings such as backpacks and razor blades, human remains, hostages’ clothes and parts of IEDs. 102. At 6 p.m. on 4 September the security cordons in Beslan were lifted. After 8 p.m. the units of the 58th Army withdrew from the town. 103. On 5 September 2004 the first funerals took place. Over the days that followed collective burials of over 100 people took place. The local cemetery was too small and had to be extended. A special memorial was later erected there (see paragraph 422 below). 104. Many of the bodies were charred beyond recognition. On 17 September seventy-three bodies were taken to a forensic laboratory in Rostov‑on‑Don for identification through DNA testing. The identification and burials continued throughout December 2004 (see paragraphs 340, 341 below). 105. After declaring 5 and 6 September 2004 days of national mourning, on 6 September 2004 President Putin delivered a televised address to the nation, announcing future measures to improve agency cooperation in counter-terrorism measures. He called the attack a “direct intervention of international terrorism against Russia”. 6. Assuming responsibility for the terrorist act 106. On 5 September 2004 the website Chechenpress.org published a message signed by “the President of Ichkeria” Mr Aslan Maskhadov, condemning the hostage-taking and terrorist attacks against civilians, but blaming the Russian authorities for the radicalisation of Chechens. 107. On 17 September 2004 the website Kavkazcenter.com circulated an email, allegedly from Mr Shamil Basayev, a leader of the radical wing of the Chechen separatist movement who used the titles “Amir of Riyad‑us Saliheen Brigade of Martyrs” and “the chief of the high military madjlisul shura of the united Caucasus mujahidin”. Mr Basayev, who at the time lived secretly in the Russian North Caucasus, claimed that his “battalion of martyrs” had carried out the attack in Beslan, as well as the explosions in Moscow and the aeroplane crashes in August 2004. 108. The email alleged that the special forces had started the storming and that the IEDs set up by the attackers in the gymnasium had not exploded. Mr Basayev also claimed that the following demands had been put to the authorities: that military action in Chechnya be stopped, that troops be pulled out and that President Putin step down from his post. The note stated that all the hostages, including children, had declared a “dry hunger strike” until these demands were granted. The letter contained details of the number and types of IEDs used, indicated the ethnic origin of thirty‑three “mujahedin” who had taken part in “Operation Nord-West” (as they had named the attack at the school) and alleged that the group had gathered and trained for the last ten days under Mr Basayev’s personal leadership near the village of Batako-Yurt [near Psedakh in Ingushetia]. The letter also mentioned the message to President Putin, which had been transmitted through Mr Aushev, and contained its full text. Mr Basayev alleged that the only surviving terrorist, Mr Nurpashi Kulayev, had been taken into the group the night preceding the operation. The document further stated that the leader of the operation, “Polkovnik”, had called him after the storming had started to say that they had counterattacked, and that the last call from him had been received at 2 a.m. [on 4 September]. Lastly, the letter cited the alleged costs of the terrorist attacks of August and September 2004: 8,000 euros (EUR) for “Operation Nord-West”, 7,000 US dollars (USD) for the explosions in Moscow and USD 4,000 for the aeroplanes. 109. In August 2005 the same website published another message signed by Mr Shamil Basayev containing passages suggesting that a member of the group which had seized the school, Mr Vladimir Khodov, had been a double agent of the FSB and Mr Basayev and had ensured the group’s “cover” during the preparation for the attack and their unhindered passage to North Ossetia. 110. On 10 July 2006 Mr Basayev was killed by an explosion in Ingushetia. It was announced that his death had been a result of a special operation by the Russian security services. It was also reported that the blast had resulted from the mishandling of explosives. C. Criminal investigations 1. Criminal investigation no. 20/849 111. On 1 September 2004 the North Ossetian Prosecutor opened criminal investigation no. 20/849 concerning a terrorist attack at the school by an armed group and the murder of twelve male hostages. 112. On 2 September 2004 Mr Fridinskiy, Deputy Prosecutor General, ordered the transfer of the investigation concerning the hostage-taking of over 600 people to the Prosecutor General’s Office in the North Caucasus. On the same day Mr Fridinskiy appointed a group of over sixty investigators from the prosecutors’ offices of the Southern Federal Circuit to take over the investigation, under the command of a special investigator of the Prosecutor General’s Office in the North Caucasus. 113. The investigation was extended on several occasions and is still pending (adjourned). 114. Many important investigative steps aimed at establishing the exact circumstances of the preparations for and carrying out of the terrorist act, as well as the explosions in the gymnasium and the ensuing storming, were taken in the course of these proceedings. The applicants claimed that in the course of the proceedings they had not been allowed full access to the documents of the file and challenged this aspect of the proceedings. At the Court’s request, the Government submitted the list of documents in the criminal case. According to this list, by 2012 the case file contained 235 volumes, each ranging on average between 200 and 350 pages. The available information may be summarised as follows. (a) Reconstruction of the events preceding the hostage-taking and identification of the organisers of the crime 115. The investigation found out that the group which had committed the terrorist act had been organised by Mr Aslan Maskhadov, Mr Shamil Basayev, “a mercenary of Arab descent” called Taufik-al-Jedani (Abu‑Dzeyt), and their entourage. The aim of the group had been “to disturb the public peace and scare the population to put pressure on the State authorities in order to achieve the withdrawal of troops from Chechnya”. In July and August 2004 the men had put together a plan to take hostage a large number of pupils and parents of school no. 1 in Beslan and murder civilians, police officers and military servicemen. 116. In the second half of August 2004 the men had put together an organised criminal group (gang) comprising over thirty people. Its members had included residents of Chechnya, Ingushetia, other regions of Russia and foreign mercenaries. The organisers of the terrorist act had entrusted the command of the operation to an active member of the gang, Mr Khuchbarov from Ingushetia, who had used the nickname “Rasul” and the radio call‑name “Polkovnik” (colonel). Twenty-four terrorists were identified by name, while at least six remained unidentified. 117. On 31 August 2004 the gang had gathered in the vicinity of Psedakh in the Malgobek District of Ingushetia. They had had the following arms and ammunition (partly originating from the attacks in Ingushetia on 21 and 22 June 2004): at least twenty Kalashnikov assault rifles, four Kalashnikov machine guns (RPK-74 and PKM), one tank machine gun (PKT), two portable anti-tank missile launchers (RPG-7V), four hand pistols and corresponding ammunition, including cartridges of different calibres and grenades of various modifications. In addition, the group had had two identical IEDs comprised of plastic explosives and hexogen and filled with metal pellets and electro detonators (with a minimum impact radius of 200 metres), six IEDs made of OZM-72 anti-personnel circular fragmentation mines and so-called “suicide bomber belts” – IEDs containing plastic explosives and projectiles made of cut metal wires and metal sheets. The gang had also used mobile telephones and portable radio transmitters. The members had been supplied with camouflage clothes, balaclavas and gas masks. They used a GAZ-66 truck. 118. On 31 August 2004 Mr Khuchbarov had informed the members of the gang about the forthcoming attack and distributed roles amongst them. In the early morning of 1 September 2004 they had travelled towards Beslan. As they had passed through the village of Khurikau they had captured a local policeman, S.G., seizing his handgun and vehicle. (b) Examination of the crime scene 119. Between 7 a.m. and 6.25 p.m. on 4 September 2004 a group of investigators and experts, in the presence of twelve attesting witnesses, compiled a report of the school building and courtyard. The examination of the site was conducted while the clearing of the debris and rescue operation were taking place. It ran to forty-three pages and was accompanied by video and photographic material (over 150 pages). 120. The report mostly concentrated on descriptions of the items found in the school, including personal belongings and documents of the hostages, the terrorists’ equipment and ammunition, damage to the structure of the building and the terrorists’ bodies. Very little information was given about the location and state of the hostages’ bodies. Most notably, page 24 of the report contained the following passage: “[in the gymnasium] from the floor up to 40 to 50 centimetres high there are hundreds of burnt bodies of women, children and men, occupying about half of the gymnasium floor space”. Only three individual descriptions of hostages’ bodies were made. On page 13 it was noted that the body of a twelve to fourteen-year-old boy had been found next to the corpse of a terrorist in a classroom located on the ground floor and on page 25 that the bodies of an elderly man and woman had been found in a storage room adjacent to the gymnasium. The report noted that the bodies had been carried out by Emercom staff into the courtyard. Among relevant items noted as “found among the rubble in the gymnasium” and taken by the sappers and Emercom staff into the courtyard were parts of explosive charges from grenade launchers, launching tubes of grenade launchers, a security cap from an RPO-A Shmel flame-thrower, parts of hand grenades, anti-personnel mines, automatic firearms, pistols, cartridges and ammunition and parts of IEDs. Other similar items were listed simply as “collected at the site”, without specifying in which part of the school they had been found. 121. The description of the canteen on page 15 failed to mention the state of its two windows facing the railway line or to give any details about the nature and extent of damage to its walls other than “signs of damage from firearms ... [resulting in] whitewash falling off”. Page 21 described the damage to the main meeting hall, including a partially destroyed external brick wall and two openings measuring 15 by 20 centimetres in the wall facing the railway line. The adjacent corridor bore signs of numerous impact traces and was scattered with parts of a destroyed wall and furniture. 122. The description of the south wing on page 23 was limited to the following: “the wing is almost destroyed and the Emercom servicemen are clearing the debris, as a result of which no examination of this wing is being carried out”. 123. Subsequent expert reports cited additional examinations of the site. Several reports cited examinations which had taken place on 2 February 2005, 14 September 2005 and 21 February 2007. The reports of these examinations contained much more detailed descriptions of the structure, findings and traces of impact. They were accompanied by a collection of samples, such as scrapes and swabs, in order for chemical examinations to be carried out. The documents indicated that most of the samples had been unable to yield any relevant results. (c) Expert report no. 1 124. Following requests by the investigation in October and November 2004, on 23 December 2005 “comprehensive forensic expert examination no. 1” (комплексная судебная экспертиза  hereinafter “expert report no. 1”) was produced. The request was to evaluate the conduct of the OH and various military and security agencies from 1 to 3 September 2004. The experts visited the site in Beslan and examined numerous items of evidence, including the testimony of servicemen and other witnesses, photographs, graphs and tapes of telephone and radio conversations. The report ran to over seventy pages. It concluded that the actions of the officials had been lawful and reasonable in the circumstances. In particular, it found that the members of the OH and servicemen of the Ministry of the Interior, the internal troops, the FSB and Emercom “had not committed any offences which could bear a causal relationship with the negative consequences resulting from the terrorist act of 1 to 3 September 2004”. 125. This document was extensively cited and relied upon in the subsequent proceedings, although it was later declared invalid (see paragraph 156 below). 126. The report focused on several questions. (i) Actions of the Operative Headquarters (OH) 127. Firstly, the report found that the actions of the OH had been focused on negotiations with the terrorists in order to obtain the release of and ensure safety for a maximum number of people. The terrorists’ demands transmitted through Mr Aushev could not serve as the subject of negotiations, since they had threatened the basis of the constitutional order and Russia’s territorial integrity. 128. The involvement of Mr Aushev and Mr Gutseriyev as negotiators, as suggested to the OH by the FSB, and the success of Mr Aushev’s mission when he had taken out twenty-six people, had served as an antidote to the escalation of the ethnic Ossetian-Ingush conflict. 129. With respect to Mr Maskhadov’s involvement in the negotiations, the report found that Mr Dzasokhov and Mr Aushev had talked to Mr Zakayev on the morning of 3 September. He had told them that his connection with Mr Maskhadov had remained on a one-way level. They had suggested to Mr Zakayev that he contact Mr Shamil Basayev, but he had refused in view of their past differences. 130. The report also covered the question of Mr Dzasokhov’s involvement in the OH. It stated that on the morning of 1 September 2004 Mr Dzasokhov had taken an active part in the work of the OH. Under his command the officials had ensured a security perimeter around the school, informed the public about the measures taken, supplied the local population with the necessary provisions in the Cultural Centre, and set up a field hospital. Information to the inhabitants had been provided hourly through Mr Dzugayev, the North Ossetian President’s press secretary. Mr Dzasokhov had taken care of the immediate needs of the first day of the siege, coordinating various agencies involved and increasing the security of other vital objects in the Republic. When the terrorists had named him as a negotiator, Mr Dzasokhov had been prepared to go ahead, but the OH had formally forbidden him from doing so. 131. Having scrutinised the taped conversations between the hostage takers and the OH and between the terrorists inside the building and their collaborators outside (namely several conversations with someone using the call-name “Magas” recorded after the start of the storming), the experts found that the terrorists had unconditionally refused to discuss any measures aimed at alleviating the hostages’ situation or any other arrangements except for political demands relating to the situation in Chechnya, and had insisted that the hostages had voluntarily joined them in declaring a “dry hunger strike”. The telephone conversations had often been ended by them in an aggressive manner and without apparent reason. Furthermore, they had anticipated and planned their own deaths, as well as numerous deaths among the hostages, as attested by the cheers and support received by them from “Magas” once the storming had started. These later conversations had contained references to “meeting in heaven”, “fulfilling the duty” and becoming martyrs (shahid), and had welcomed the killing of infidels and referred to the storming as “going normally”. (ii) Prevention of the terrorist act 132. The report relied on numerous telexes, orders and decrees issued by the Ministry of the Interior and the FSB in July and August 2004 indicating a heightened terrorist threat in the North Caucasus and ordering various measures to be taken by the local police and security forces. As of 22 August all forces of the Ministry of the Interior in the Southern Federal Circuit had been put on alert (усиленный вариант несения службы). On 24 and 31 August the local police stations had been requested to take special measures to prevent terrorist acts from taking place during the Day of Knowledge on 1 September. 133. With respect to the Pravoberezhny ROVD of Beslan (situated next to the school building), the report concluded that the commanding officers had failed to take certain preventive steps. In particular, the personnel of the ROVD had not been told what action to take in case of an emergency, and no plan had been put in place to ensure additional security during ceremonies in the schools. The only police officer at school no. 1 had been unarmed, namely Mrs Fatima D. The two other police officers who had been scheduled to guard the school during the ceremony had been absent. Two patrol officers of the transport police had been transferred elsewhere to secure the passage of Mr Dzasokhov’s convoy along the “Kavkaz” federal highway. As a result, the terrorists had had unhindered access to the school and had been able to force a large number of hostages inside. No reaction from the local law-enforcement bodies had been forthcoming during the first fifteen minutes of the attack. 134. The servicemen of the Pravoberezhny ROVD, having received no instructions beforehand and having no preliminary plan of action in the event of a terrorist act, had received arms and ammunition at the ROVD and by 10 a.m. had set up a security cordon around the school. Information about the school siege had been immediately transmitted to the North Ossetian Ministry of the Interior. The report found that the actions of the senior staff of the Pravoberezhny ROVD had amounted to professional negligence. 135. With respect to the situation in the Malgobek District of Ingushetia, the report concluded that the local police had failed to prevent the members of the gang from assembling and training there at the end of August. Reference was made to the pending criminal case against the senior officers of the Malgobek ROVD (see paragraph 363 below). (iii) Actions of the internal troops of the Ministry of the Interior 136. The report concluded that the servicemen of the internal troops had been deployed only in the outer security perimeter around the school, the FSB special forces being deployed in the inner one. They had taken no part in the fighting, and their actions and equipment had fully complied with the relevant legal regulations and with their mission. (iv) Actions of the special units of the FSB 137. Servicemen of the FSB special forces had taken part in the operation. They had been armed with customary weapons and special equipment such as RPG-26 portable grenade launchers and RPO‑A Shmel portable flame-throwers. 138. Turning to the events of 3 September 2004, the report gave the following chronology. By 1 p.m. no plan had been in place to start the storming operation. Two special forces groups had been training outside Beslan, snipers and intelligence groups had kept monitoring the object from their designated positions, an emergency group of thirty‑two people had been positioned behind the housing blocks and the remaining servicemen had stayed at the assembly point. 139. The explosions which had occurred at 1.05 p.m. had been caused by two IEDs. No shots had been fired at that time, as Emercom staff had been working in the front yard of the school. In any event, the place of the explosion had been invisible from the snipers’ positions. 140. No flames could be seen in the gymnasium after the two explosions. The hostages had started to run out through the openings in the walls. The terrorists had opened fire on the escaping people using automatic rifles and machine guns. On the instruction of the head of the OH, the servicemen of the special forces had been ordered to save the hostages. The terrorists had been aimed at by the fire-support group and three APC-80s. 141. A group of servicemen had entered the weights room and evacuated from it several women with small children. This group had then entered the gymnasium and started to take out the hostages. The terrorists had opened fire at them. Two servicemen had taken position on the floor and returned fire, while the rest had continued to lead the hostages out. Between 1.40 and 1.50 p.m. the terrorists had fired several shots from portable grenade launchers (RPG‑18 Mukha) at the gymnasium, killing and injuring several hostages, wounding two officers of the special forces and starting a fire in the gymnasium. 142. The rescue operation had lasted until 2.40 p.m., at which time all available FSB forces had been regrouped pursuant to a previously adopted plan. At 3 p.m., upon an order from the commander, they had stormed the building. Their movements inside the building had been slowed down by low visibility from smoke and whitewash powder and the presence of hostages whom the terrorists had been using as human shields. The terrorists had used automatic weapons, hand grenades and portable grenade launchers, while the FSB forces had been constrained to fire single shots, to avoid excessive harm to the hostages. By 6 p.m. no hostages had remained in the building. Only once this had been ensured had the forces of the FSB used heavy weapons against the terrorists who had refused to surrender. Hand grenades, RPG‑20 portable grenade launchers and Shmel flame‑throwers had been used for the first time after 6 p.m. At 9 p.m. a T-72 tank had been used to make openings in the walls and suppress enemy firing points, since further movement in the building had been impossible because of mines laid by the terrorists. The records of the site examinations and video material showed that no bodies of hostages had been found in places where the terrorists had been killed by heavy arms and indiscriminate weapons. 143. Ten servicemen of the special forces had been killed during the operation, and eleven had received injuries. The fatalities had included two lieutenant-colonels [group commanders], one of whom had died during the first few minutes of the storming as he had rushed to the school shielding the escaping hostages; the second had died in the main meeting room while trying to release the hostages detained there. 144. The report also analysed the circumstances of the deaths and injuries of each serviceman of the special forces which occurred between 1.20 p.m. and 3 p.m. on 3 September and concluded that their actions had been lawful and adequate and had demonstrated high professionalism, courage and self‑sacrifice. (v) Actions of the army 145. The commander of the 58th Army of the Ministry of Defence, General Sobolev, had been informed of the hostage-taking at 9.38 a.m. on 1 September. By 1.30 p.m. the third ring of the security perimeter had been set up around the school by the 58th Army servicemen. The servicemen had been armed with various automatic weapons and portable grenade and mine launchers, but they had not used any of them since their task had been limited to maintaining the security cordon. 146. As to the use of military vehicles, the report found, on the basis of various descriptions, plans, logbooks and servicemen’s testimony, that on 2 September three T-72 tanks with hull numbers 320, 325 and 328 had been transferred under the command of the FSB officers. Tanks with hull numbers 320 and 328 had manoeuvred around the school following the commands of the FSB officers but had not opened fire. A tank with hull number 325 had fired seven high-fragmentation shots (125 millimetre calibre) at the canteen situated in the right wing of the school, following the instructions of the FSB officer in charge. The shots had been fired between 9 and 9.30 p.m. on 3 September 2004. The report concluded that the tank had been used after the end of the rescue operation at 6 p.m., when no harm could have been caused to the hostages and it had been guided by the need to suppress enemy fire in the most efficient way. 147. Several other military vehicles had been used during the operation, also under the command of the FSB officers. Eight APC-80s had been stationed at various points around the school from 1 or 2 September 2004 onwards. Two of them, with hull numbers 823 and 824, had taken part in the storming operation. APC number 823 had used a heavy machine gun (calibre 7.62 millimetres) between 2 and 2.20 p.m. to suppress the terrorists’ firing positions on the school roof. At the same time an APC with hull number 824 had fired several rounds from a heavy machine gun at the windows of the first floor, covering the Alpha servicemen who had entered the building. The remaining military vehicles had taken no active part in the fighting. The experts concluded that the use of machine guns had been fully appropriate in the circumstances and could not have resulted in injuries or deaths among the hostages. (vi) Actions of Emercom 148. From 9.35 a.m. on 1 September, various services of Emercom from North Ossetia and neighbouring regions had begun to arrive at school no. 1. They had included brigades specialising in extinguishing major fires and fire engines with water tanks or cisterns. Rescue workers had arrived with special equipment and search dogs. At 5 p.m. on 1 September 2004 fourteen psychologists had started working with the relatives, and by 4 September 2004 fifty‑one psychologists had been working in Beslan. The hub of psychological assistance had been in the Cultural Centre, to which ambulance doctors had been called when necessary. In total, between 1 and 4 September 2004, 254 people and seventy Emercom vehicles had been deployed in Beslan. 149. At 12.40 p.m. on 3 September four servicemen of the Emercom rescue team had been instructed to retrieve bodies from the school courtyard. They had received safety guarantees and a mobile telephone to communicate with the terrorists in the school. Following the explosions in the gymnasium, chaotic firing from the upper floor and roof by the terrorists had left two servicemen dead and two injured. 150. The report then focused on the actions of the fire brigades on 3 September. At 2.51 p.m. a fire alert had been given to the fire service. At around 3.20 to 3.25 p.m. fire brigades had arrived at the scene. The delay in their arrival had been caused by the order of General Andreyev, who had considered that the firemen and their engines could have been attacked by the terrorists, rendering the rescue operation more complex. At 3.26 p.m. two brigades had rolled out fire hoses and proceeded to extinguish the fire. Each cistern had been full and had contained about 2,000 litres of water, which had been used within three to five minutes. The fire hydrant in the school could not be used as it had been located in the military engagement area. At 3.35 p.m. two other fire units had arrived and had been stationed on the north and east sides of the gymnasium. The North Ossetian Deputy Minister of Emercom Colonel Romanov had assumed the role of incident commander. Five fire hoses had been deployed. A supply of water from a water hydrant situated within 200 metres had been ensured, and the firemen had also used water from newly arrived tanks. 151. The fire had been contained and extinguished by 9.09 p.m. The operation had been protracted since on two occasions the firemen had been removed from the school at the request of the special forces. 152. In the meantime, Emercom rescue workers had evacuated hostages from the school building. By 4 p.m. they had taken out over 300 people, including 100 children. After the fire had been extinguished, rescue teams had started to search the debris in the gymnasium. They had had to stop at 10.25 p.m. when unexploded IEDs had been discovered and sappers had been called in. 153. Immediately after midnight on 4 September a fire had started in the south wing of the school building where the canteen, craft classrooms, library and meeting room had been situated. Four fire brigades had arrived on the spot and the fire had been extinguished by 3.10 a.m. 154. At 7 a.m. on 4 September Emercom rescue workers and military servicemen had started to clear the debris and search for the bodies. In total, 323 dead bodies had been collected and sent to the forensic unit in Vladikavkaz. By 7 p.m. the search and rescue operation in the school had been completed. 155. The report concluded, with reference to the evidence contained in the case file, that the deaths of 112 people whose bodies had been found in the gymnasium had been caused by the explosions of the IEDs. The bodies found there had had been 70 to 100% carbonised; the carbonisation had occurred post mortem. The firefighters had had to act in extreme and life-threatening conditions. The organisation and equipment supplied had been sufficient to enable them to carry out their tasks. (vii) Challenge to the report’s conclusions 156. On 9 November 2006 the Leninskiy District Court of Vladikavkaz, following an application by the applicants, declared expert report no. 1 invalid owing to a number of serious breaches of the procedural legislation governing the appointment of experts and the carrying out of expert evaluations. (d) Chronology of the OH’s actions 157. The investigation established the following time frame concerning the action taken by the OH (as set out in expert report no. 1 and other documents): (i) 1 September 2004 158. At about 10.30 a.m. the OH was set up, in accordance with the plan of action in the event of a terrorist threat issued on 30 July 2004. Initially it was headed by the President of North Ossetia Mr Dzasokhov, the head of the North Ossetian FSB General Andreyev and the North Ossetian Minister of the Interior Mr Dzantiyev. Prior to his appointment on 2 September 2004 as head of the OH, General Andreyev had been in charge of coordinating the actions of various law-enforcement and military structures, including the FSB units arriving in Beslan. Two deputy heads of the FSB, Mr Pronichev and Mr Anisimov, who had arrived in Beslan on 2 September, acted as consultants and did not interfere with the command of the operation. 159. Between 11 a.m. and 2 p.m. the operative headquarters ensured the evacuation of residents from adjacent premises and cordoned off the school. The police and security forces searched basements and attics of the nearby buildings, cleared the adjacent streets of parked vehicles and closed them to traffic, closed the local railway line and took other necessary measures. In order to avoid harm to the hostages and other civilians, they were also ordered not to respond to the random shots fired by the terrorists. Scanning of radio frequencies in the vicinity of the school had been put in place by the Ministry of the Interior, the FSB and the army. 160. At 11.05 a.m. the terrorists sent out the first note, containing a telephone number and naming possible negotiators. However, the telephone number had been noted down incorrectly and no contact could be established. 161. Between 11.30 a.m. and 1.30 p.m. two safety perimeters were put in place around the school, composed of police and army servicemen using seventeen APCs. At noon the APCs were moved out of the terrorists’ view, in order to avoid provocation. 162. At 11.40 a.m. the OH started compiling a list of the hostages. 163. At 12.35 p.m. the OH invited the North Ossetian mufti to take part in the talks, but the terrorists opened fire on him when he tried to approach the seized building. 164. At 1.55 p.m. all reserve forces of the North Ossetian police were placed on high alert, including local policemen in towns and villages along the administrative border with Ingushetia and police academy students. 165. At 4.05 p.m. hostage Mrs Mamitova took out a second note with the correct telephone number. 166. Between 4.05 and 5 p.m. a series of gunshots and explosions were heard inside the school. The OH instructed Mr Z., a professional negotiator from the North Ossetian FSB, to contact the terrorists by telephone. The hostage taker presented himself as “Shahid” and said that he had executed ten people and blown up twenty others because the authorities had been slow in contacting them. He then insisted that the men indicated in their note (Mr Zyazikov, Mr Dzasokhov, Mr Aslakhanov and Dr Roshal) should come to the school together. Mr Z. pleaded for some time to bring the four men to Beslan. The terrorist said that the gymnasium had been mined and would be blown up in the event of a storming. 167. At 4.30 p.m. Mr Kudzayev escaped from the school by jumping out of a first floor window. He identified a photograph of one terrorist from Ingushetia; on the same day his relatives were brought from Ingushetia by the FSB. However it transpired that the identification was incorrect. This man was later killed in Ingushetia while actively resisting the authorities. 168. During the day the OH collected information about possible hostage takers and their relatives, so as to involve the latter in the negotiations. 169. At 5 p.m. the terrorists fired several random shots from automatic weapons and portable grenade launchers. About a dozen bodies were thrown out of the window. The OH took steps to prepare for the evacuation of the injured to the local health establishments, and psychological support had been called in for the hostages’ relatives. 170. At 5.45 p.m., in order to prevent the dissemination of incorrect information, it was decided that all contact with the media should be carried out by General Andreyev, Mr Dzantiyev and Mr Dzugayev. Mr Peskov from the Russian President’s administration was given the task of liaising with journalists. 171. At 6 p.m. the North Ossetian Ministry of Health designated hospitals to be on stand-by, and twenty-eight ambulance vehicles were deployed. 172. At 6.30 p.m. special forces of the FSB (подразделения центра Специального назначения (ЦСН) ФСБ России) arrived in Beslan and set up their headquarters. They started contemplating various ways of liberating the hostages and neutralising the attackers. 173. At 7.20 p.m. hundreds of bottles of water, juice and food rations were stocked by the headquarters for the hostages’ eventual needs. 174. At 9.30 p.m. Dr Roshal arrived in Beslan. The terrorists refused to accept water or food from him. They continued to insist that all four men indicated by them should come to the school. Dr Roshal was permitted to talk on the telephone with the school director, who described the situation inside. 175. At 9.36 p.m. the OH continued talks with the attackers. They tried to involve journalists of an Arab television company in the negotiation process, but this was rejected by the terrorists. At the same time, they contacted the former President of Ingushetia Mr Aushev and an influential businessman, Mr Gutseriyev. 176. At 10.20 p.m. the OH tried to arrange the release of hostages in exchange for money and unhindered passage to Chechnya or Ingushetia. Twenty buses were requested in the event that the terrorists agreed. 177. By the end of the day, six hostages who had escaped from the school had been questioned in order to obtain information about the number and location of the terrorists and hostages inside the school, as well as to draw a plan of the IEDs. (ii) 2 September 2004 178. At 9.30 a.m. some hostages were allowed to call their relatives in order to put pressure on the authorities. 179. At 10 a.m. the OH authorised Mr Gutseriyev’s participation in the negotiations. His offers of money and guarantees of unhindered passage were rejected by the hostage takers. 180. At 1 p.m. General Andreyev spoke to the hostages’ relatives and assured them that no storming would take place. This was done in view of rumours circulating among the local population and the idea by civilians of forming a “life ring” around the school. 181. At 1.50 p.m. religious Muslim leaders of Chechnya, Ingushetia and North Ossetia delivered a televised address calling for peace and the end of further ethnic clashes. 182. At 2.40 p.m. Mr Aslakhanov spoke to the attackers on the telephone; he assured them that their demands would be passed on personally to the Russian President. The terrorists insisted that he come to Beslan with Mr Aushev. 183. At 2.45 p.m. the FSB of Russia appointed General Andreyev the head of the OH and appointed its members by coded message. Report no. 1 listed thirteen members, including two deputy heads of the OH: General Tikhonov, the commander of the FSB Special Services Centre, and Mr Dzantiyev, the North Ossetian Minister of the Interior. It also listed the following members: the North Ossetian President Mr Dzasokhov, the head of the Ingushetian FSB General Koryakov, the commander of the 58th Army General Sobolev, the deputy commander of the internal troops of the Ministry of the Interior General Vnukov, the head of the operational management group at the North Ossetian Ministry of the Interior Lieutenant-Colonel Tsyban, the North Ossetian Minister of Health Mr Soplevenko, the North Ossetian Minister of Education Mrs Levitskaya, the North Ossetian Minister of Emercom Mr Dzgoyev, the director of the All‑Russia Centre of Disaster Medicine at the Ministry of Public Health (“the Zashchita Centre”) Mr Goncharov and the deputy head of the information programmes department of Rossiya. All members of the OH were informed of their positions. 184. At 3.23 p.m. Mr Aushev was permitted to enter the school. Between 4 and 4.30 p.m. he negotiated with the terrorists; as a result of his mission twenty-six people were released: babies aged under two and their mothers. Mr Aushev also took out a letter signed by Mr Shamil Basayev with a demand for troops to be withdrawn from Chechnya. 185. At 5.30 p.m. an additional debriefing of former hostages took place in order to obtain more information about the positions of the hostages and terrorists and the location of the IEDs. 186. At 5.40 p.m. the OH ordered measures aimed at identifying and neutralising possible accomplices of the terrorists outside the school. 187. At 6.05 p.m. Mr Aushev proposed to the terrorists that the bodies be collected. They agreed to consider this proposal. 188. At 7.20 p.m. the attackers told Dr Roshal, Mr Gutseriyev and Mr Z. that the hostages had refused to accept food, water or medicine. 189. At 8 p.m. the terrorists fired random shots from automatic rifles and portable grenade launchers out of the school windows. The OH ordered that the surrounding territory be cleared of parked vehicles. (iii) 3 September 2004 190. In the morning an agreement was reached through Mr Aushev and Mr Gutseriyev to clear the bodies from the schoolyard. 191. At 12 noon Emercom officers were appointed and transport was arranged. They received instructions and means of communication. At 12.40 p.m. the officers started to collect the bodies. One terrorist went down to the courtyard to supervise their work. 192. At 1.05 p.m. two powerful explosions occurred in the gymnasium. Part of the wall collapsed and the hostages started to panic and exit through the opening. The terrorists opened fire on them from automatic rifles and RPG‑18 portable grenade launchers from the windows of the first floor. Twenty-nine people were killed as a result of gunshot wounds. 193. At 1.10 p.m. the head of the OH, General Andreyev, gave written orders to the units of the FSB special forces to commence the operation aimed at saving the hostages and neutralising the terrorists. 194. At 1.15 p.m. the first hostages were taken to hospitals in Beslan and Vladikavkaz. 195. At 1.20 p.m. one terrorist, Mr Kulayev, was detained and handed over to the investigators. 196. As a result of the explosions and the ensuing fire at least 250 hostages died; the rest were forced by the terrorists to move to the meeting room and other premises of the school. 197. At 2.50 p.m. a fire broke out in the gymnasium. The expert report on fire and explosions established that the source of the fire had been located in the roof of the gymnasium, above the exit. 198. Mr Andreev ordered the firemen not to intervene immediately, in view of the continuing fighting, the risk to the firemen’s lives and the danger of delaying the rescue operation, which would result in more victims. 199. The OH ordered the firefighters to intervene at 3.10 p.m. They arrived at 3.20 p.m. and proceeded to extinguish the fire. 200. At 6 p.m. the rescue operation was over. The OH ordered the deployment of heavy weaponry to neutralise the terrorists. 201. At 12.30 a.m. on 4 September the sweeping of the school building was over and a security cordon was set up. At 1 a.m. the demining started. (e) Information about FSB actions and questioning of senior FSB officers 202. Two deputy heads of the FSB, Mr Pronichev and Mr Anisimov, were in Beslan during the crisis. 203. A number of high-ranking FSB servicemen were questioned in the course of the investigation, including General Andreyev (on 29 September 2004), General Koryakov (on 30 September 2004) and Generals Anisimov and Pronichev (October 2005). The documents of the criminal investigation submitted by the Government do not contain the record of questioning of General Tikhonov, the commander of the FSB Special Services Centre, who was in charge of the storming operation. His name is not listed among the witnesses/members of the OH in volume 124 of file no. 20/849. The list of documents examined by the experts who had produced expert report no. 1 does not mention his testimony either. 204. In July 2007 the applicants wrote to the head of the FSB and referred to the meeting they had had with the Deputy Prosecutor General in charge of the case, who had told them that the relevant video and audio material could not be found. In December 2006 State television aired a film entitled “The Final Assignment” containing video and audio material made by the special forces in Beslan from 1 to 3 September 2004. They sought to ensure that the footage would be given to the Prosecutor General’s Office. They also asked that the members of the special forces be questioned during the investigation. In September 2007 the FSB informed the applicants that any such action would be done in response to the relevant requests by the prosecutor’s service and in line with the legislation. (f) Information about the arms and ammunition used, explosives, fire and ballistics expert reports 205. The investigation file contains a number of documents concerning the use of arms and ammunition by various State bodies; some are cited in other documents (see below). Dozens of various individual experts’ reports were ordered by the investigation on firearms (hand pistols, guns and automatic weapons), ammunition and IEDs supposedly used by the terrorists, as well as weapons and ammunition used by the security forces. Some of the cartridges were marked by experts as suitable for identification of the weapons (for example, expert report no. 263 of 4 October 2004 marked fifty spent cartridges from a Kalashnikov automatic rifle as suitable for weapon identification). These reports were submitted to the Court by the Government, and the most relevant ones are summarised below. The victims challenged certain procedural steps related to the commissioning of some of the reports, complaining that they had not been allowed to take copies of them but had been able to view them in the prosecutor’s office for a limited amount of time. 206. According to a document dated 9 September 2004 (act no. 3), one military unit of the 58th Army of the Ministry of Defence deployed in Beslan used about 6,500 cartridges for automatic weapons and machine guns (5.45 and 7.62 mm calibre), 340 tracer bullets (5.45 mm T), 450 armour-piercing incendiary cartridges for large-calibre machine guns (14.5 mm BZT and B-32) and ten hand grenades (RGD-5). 207. Dozens of witness statements were collected by the investigation between September 2004 and August 2007 from the military and police servicemen, officers of Emercom, firefighters and members of the OH. These statements, consistently and in detail, denied the use of grenade launchers, flame-throwers and a tank cannon prior to 6 p.m. on 3 September 2004. (i) Expert reports of explosive and thermobaric weapons 208. The investigation ordered individual expert reports on parts of explosive charges and launch tubes of explosive, thermobaric and armour-piercing weapons found at the school and in the nearby areas. These included launch tubes of twelve RPO‑A Shmel flame-throwers with batch and individual serial numbers, parts of artillery shells, hand grenades, smoke grenades, spent cartridges of different calibres, tubes and charges for grenade launchers. The reports contain the following relevant descriptions of the weapons used. (α) Flame-throwers 209. Two reports examined launch tubes of five RPO‑A Shmel tubes with different batch and serial numbers (expert report SI-76 of 10 September 2005: batch 3-02, nos. 115, 171; batch 7‑95, no. 896; batch 1‑3, nos. 51 and 52) and seven RPO‑A Shmel tubes (expert report SI‑132 of 11 October 2005: batch 3-02, nos. 109-13 and 116; batch 1‑03, no. 13). The reports describe the RPO‑A Shmel as follows: “[A] portable anti-personnel flame-thrower RPO‑A Shmel is designed to impact fortified firing points of the enemy ... destroy light armoured vehicles and other vehicles, sheltered and exposed manpower... Technical characteristics: - range of direct fire 200 m; - effective range600 m; - maximum range1,000 m; - temperature of burning of the combustible mixture 1,800˚C; - destruction caused in a closed structure 80 m²; - destruction of manpower50 m²” The fire experts’ report of 22 December 2005 mentioned an additional expert report, SI–92 of 20 September 2004, which had examined several parts of RPO-A spent charges. 210. In addition to the above-mentioned twelve tubes of RPO‑A with identified batch and serial numbers, the file contained a document dated 25 September 2004 and signed by Lieutenant-Colonel Vasilyev from the 58th Army. This document stated that the FSB units had received seven RPO‑A flame-throwers (batch 4-96, nos. 945-48, 486-88) from military storage. After the operation two flame-throwers with the indicated numbers, plus one with a different batch and number (batch 1-0, no. 12), had been returned to storage. It does not appear that the remaining five RPO‑A devices from batch 4-96 were spotted and examined by experts. 211. Three expert reports concerned over forty used capsules with readable serial numbers, which the experts were first unable to identify or describe otherwise than “special purposes ammunition”, for which no descriptions or technical characteristics were available to the experts of the Ministry of the Interior (expert reports SI‑83 of 15 September 2004, SI‑85 of 16 September 2004, SI‑90 of 17 September 2004). In April 2007 these spent capsules were identified as charges for a light infantry flame-thrower LPO‑97 (expert report nos. 750/17, 757/17 of 25 April 2007). This latest report also contained detailed information about the thermobaric charge for an LPO-97. Upon an explosion, impact is created by a “sphere of fire” with temperatures ranging from about 2,300˚C in the centre to about 630˚C at 1 metre and 80˚C at 3 metres distance, and secondary effects. Due to the very short “time span of the sphere of fire” (less than four milliseconds), the explosion cannot lead to the combustion of wooden structures. People located within 1 metre of the explosion can receive thermal burns on exposed body parts and within 1.6 metres various injuries, including a perforated eardrum. 212. On 31 January 2005 Colonel B. from a unit of the 58th Army issued a note stating: “[the] use of rocket propelled infantry flame-throwers RPO‑A and light infantry flame-throwers LPO‑97 is not prohibited by international conventions. They have been widely used during combat operations in Afghanistan and Chechnya.” 213. On 4 February 2005 a military unit located in Vladikavkaz forwarded detailed technical characteristics of RPO‑A and LPO‑97 flame‑throwers to the military prosecutor’s office. The functionality of an RPO‑A was described as: “[the] destruction of manpower in fortified firing points, buildings, vehicles, [and] the creation of islands of fire in the above‑mentioned objects and on the ground.” The functionality of an LPO‑97 (introduced into service in 2002) was described as “[the] destruction of manpower inside buildings by means of high-temperature field and a field of extensive pressure ...” (β) Grenade launchers 214. Expert report no. SI-75 of 10 September 2004 examined five launch tubes from RPG‑26 Aglen disposable anti-tank grenade launchers, bearing identifiable batch and serial numbers. 215. Expert report no. SI‑81 of 17 September 2004 examined the following items that were found in the gymnasium: one grenade type VOG‑17M for an AGS‑17 automatic mounted grenade launcher with an identifiable batch number; one grenade type VOG‑25 for an under-barrel grenade launcher GP‑25 with a batch number; an RGD‑5 hand grenade; an F1 hand grenade; an RGN hand grenade; an RDG‑2B smoke grenade; a shell of a GSZ-F stun grenade, and one security cap from an RPO‑A Shmel. 216. Expert report no. SI‑98 of 8 October 2004 examined one used anti‑tank grenade type PG‑7L with an identifiable batch and serial number, used by reloadable portable grenade launcher type RPG‑7 and its modifications; four spent parts from RPG-26 disposable anti-tank rocket launchers, with identifiable batch numbers; and one spent part of an anti-tank grenade (RPG‑27 disposable grenade launcher), with a batch number. 217. On 10 November 2004 the military unit in Vladikavkaz responded to a question from the military prosecutor’s office and submitted a table containing the technical characteristics of four types of grenade launchers: the reloadable RPG‑7 and GP‑25, and the disposable RPG‑18 and RPG‑22. (ii) Fire expert’s report of 22 December 2005 218. On 22 December 2005 the Russian Federal forensic expert centre produced fire expert’s report (заключение пожаро-технической судебной экспертизы) no. 2576/17, 320‑328/18‑17. The voluminous report consisted of 217 pages, accompanied by about sixty pages of tables and photographs. The report started by reviewing a number of relevant pieces of evidence, including extracts from witness statements, expert reports, information about the arms and ammunition used, an examination of the building materials and a review of available photo and video material. 219. In particular, the report cited a “joint record” dated 10 September 2004 of the arms and ammunition used by the military servicemen, which included about 7,000 cartridges for automatic weapons and machine guns (5.45 mm PS, 7.62 mm LPS), 2,160 tracer bullets (5.45 mm T), ten disposable anti-tank rocket launchers (RPG‑26 Aglen), 18 armour-piercing charges for reloadable anti-tank grenade launchers (PG‑7VL), eight high‑fragmentation warheads for a 125 millimetre calibre tank gun (125 mm OF) and ninety smoke grenades (81 mm ZD6) (page 128 of the report). The same report contained references to expert examinations of a number of parts of used RPO‑A Shmel flame-throwers (report SI‑ 92 of 20 September 2004) and a list of six empty tubes from an RPO‑A Shmel collected by the members of the parliamentary commission citing their serial numbers (batch 3‑02, nos. 109‑13 and 116) (see paragraph 409 below). It also mentioned a document dated 25 September 2004 and signed by Lieutenant‑Colonel Vasilyev from the 58th Army about the use of five RPO‑A flame‑throwers with batch number 4‑96 (see paragraph 210 above). On 25 September 2004 Lieutenant‑Colonel Vasilyev from the 58th Army was questioned and stated that he had received back two flame-throwers from batch 4‑96, plus one from another batch, which had not been issued from that storage (batch 1–03, no. 12); Major Ts. from the FSB Vympel unit explained that the others had been used (pages 129‑30 of the report). 220. The report further mentioned a witness statement of Colonel K., who explained that he had led a group of officers who had taken part in the storming of the school building. The group had used RPG‑26 grenade launchers and RPO‑A flame-throwers, but not at the premises where the hostages had been present (page 131 of the report). One witness, M.K., a member of a storming group, stated on 23 November 2004 that he had used RPG‑26 grenade launchers and RPO‑A flame-throwers upon “enemy firing points which had been designated in advance and identified during the storming”. The firing points identified in advance had been located in the window of the attic area and the third window on the first floor of the main building. No hostages had been there at the time. For the second time the flame-thrower had been used at night, at about midnight, upon a group of terrorists in the craft classrooms on the ground floor. At that time the rest of the building had been in the firm control of the security forces and Emercom staff had been finishing carrying the bodies out of the gymnasium (page 183 of the report). The report listed the main characteristics of an RPO‑A Shmel: a thermobaric charge of over 2 kilograms upon explosion creates a powerful combustion zone (a sphere of fire 5 to 7 metres in diameter) burning at temperature of about 1,800oC; accompanied by an extremely powerful shock wave caused by a complete burning of oxygen in the detonation zone. An expert described the effects of this charge upon people, which would include severe fractures caused by the shock wave and lung collapse; and upon buildings as a “blowing out” of the external walls and collapse of the structure. The report referred to the records of two experiments carried out on 13 October 2005 wherein disused buildings had been fired at with RPO‑A flame‑throwers, as a result of which the buildings had been demolished but no fire had started (page 183 of the report). Relying on the testimonies of security personnel, the pattern of destruction of the roof in the main part of the building, parts of RPO‑A charge found in the attic of the “left wing” of the school and the absence of any such parts in the gymnasium, the conclusion was that there had been no explosions of a thermobaric charge from an RPO‑A there. The report concluded as follows on the use of flame‑throwers (pages 185 and 217 of the report): “RPO‑A Shmel were used during the special operation aiming to free the hostages. Criminal case file no 20/849 contains no material to conclude that RPO‑A Shmel flame-throwers had been used on the roof and the structure of the gymnasium of school no 1. The use of an RPO‑A Shmel flame-thrower on the roof of the gymnasium could not have led to a fire in its wooden parts.” 221. In so far as the first explosions were concerned, the report concluded that the explosions in the gymnasium which had occurred within several seconds at about 1.05 p.m. on 3 September 2004 had resulted from the IEDs attached to a basketball hoop near the west wall (equivalent to about 1.2 to 1.3 kilograms of TNT) and located on a chair placed about 0.5 metres away from the north wall under the window (and equivalent to 5.2 kilograms of TNT). Both IEDs had been filled with numerous small metal objects. The third explosion had resulted from the IED placed under a basketball hoop at the north wall catching fire, its metal filling falling on the floor and the explosion of a small amount of explosives (equivalent to about 100 grams of TNT), as a result of exposure to heat (pages 170-73 of the report). 222. The experts considered and accepted as “probable” the hypothesis that the fire in the gymnasium had started as a result of use of armour‑piercing and incendiary charges, which could have been used by the terrorists (page 185 of the report). As to the place where the fire had started, having analysed the extent and degree of damage to various constructions of the gymnasium, the experts concluded that it had most probably been located in the attic area located more or less above the basketball hoop in the north part of the room; the fire on the floor had started only after the burning parts of the ceiling and roof had fallen down. The extent of damage caused by the fire and explosions prevented any detailed analysis of the number of places where the fire had started and its exact cause and spreading in the building (pages 215-17 of the report). (iii) Expert report no. 4-106 223. On 30 December 2005 the FSB’s Institute of Forensic Studies (Институт Криминалистики ФСБ РФ) produced expert report no. 4/106. The report focused on the examination of the IEDs used by the terrorists in the gymnasium. It concluded that the terrorists had placed at least sixteen IEDs in the gymnasium, joined into a single chain by electric cables and detonators. On 3 September at least three IEDs had exploded in the north-west part of the gymnasium: one at the basketball hoop on the west wall (made of an OZM‑72 anti-personnel mine, equivalent to about 0,66 kilograms of TNT), the second on the right-hand side of the door leading into the gymnasium on the west wall (a sphere‑shaped IED equivalent to at least 0.5 kilograms of TNT) and the third on the windowpane of the first window on the north-west wall (an IED in a plastic bottle equivalent to at least 1 kilogram of TNT). The total force of the explosions had been equivalent to no less than two kilograms of TNT; however it was impossible to confirm their exact timing and sequence. The most likely cause of the explosions was intentional or non-intentional impact upon the detonator pedal; the reasons why the whole chain had failed to react were unclear, but it could be that the first explosions had damaged the electric cables connecting the rest of the IEDs (pages 18-29 of the report). (iv) Expert report no. 16/1 224. On 25 October 2006 a comprehensive forensic report on the explosions (комплексная криминалистическая экспертиза математического моделирования взрывов) was ordered from experts of the State‑owned scientific and production company Bazalt (ФГУП ГНПП “Базальт”) and the Central Research and Testing Institute, named after Karbyshev of the Ministry of Defence (Центральный Научно-исследовательский испытательный институт им. Карбышева Министерства Обороны РФ). The applicants submitted that the document in its entirety had been unavailable to them prior to the exchange of the parties’ observations in 2012. 225. In January 2007 Mrs Tagayeva applied to the prosecutor’s office to have the experts of Bazalt dismissed, as they had been administratively dependent on the Ministry of Defence. Her application was rejected on 30 January 2007 because no subjective bias of the experts could be discerned and, objectively, the Ministry of Defence had not been a party to the criminal proceedings. 226. Expert report no. 16/1 was produced on 14 September 2007 and ran to over 300 pages, accompanied by detailed charts and photographs. It appeared to dismiss the doubts expressed, notably, by a member of the State Duma investigative committee and a renowned expert in the field of explosions, Mr Savelyev, about the external origins of the first two explosions in the gymnasium (see paragraphs 406, 408, 410 below). The conclusions of report no. 16/1 are found on pages 264 to 273. They can be summarised as follows: the first explosion was the result of the detonation of a large IED, equivalent to between three and six kilograms of TNT. The origin of this explosion was not linked to the electric wires and detonator, but resulted, most probably, from mishandling of the device by the terrorists guarding it. This IED exploded in the north-east part of the gymnasium, at a spot about a metre away from the north wall and 5 metres away from the east wall. The second explosion occurred about twenty seconds later and consisted of the simultaneous detonation of several (between five and ten) smaller IEDs in the north-west part of the hall; this explosion most probably resulted from one of the terrorists intentionally or unintentionally using the detonator pedal. It could not have been caused by a cumulative charge launched from the outside. The report also concluded that out of all the recorded damage to the gymnasium walls, only two marks could have been caused by either a thermobaric charge or a cumulative charge projected from outside. These projectiles could not have been launched from the roofs of houses at 37, 39 or 41 Shkolny Lane (as alleged by some experts). The damage caused to the south wing of the school could have been caused by the use of various weapons and explosives, including a tank cannon, flame-throwers and grenade launchers; however, the extent of the destruction excluded the possibility of any detailed reconstruction of the events. The report dismissed as improbable the launching of a thermobaric charge from a helicopter, pointing out that it could lead to the destruction of the helicopter and death of the crew. Lastly, the report listed the following types of weapons used by the members of the counter-terrorist operation, reconstructed on the basis of video material and the documents contained in criminal case file no. 20/849: “- portable grenade launchers RPG-7V and their modifications with anti-tank charges PG-7VL, PG-7VM, PG-7VS, fragmentary warhead OG-7V; - disposable anti-tank rocket launchers RPG-26, RPG-27; - propelled attack grenades RShG‑1 with a thermobaric warhead; - flame-throwers RPO‑A Shmel with a thermobaric warhead; - light infantry flame-throwers LPO‑97 with a thermobaric charge (probably); - firearms and portable grenade launchers.” Based on the same sources, the report concluded that the terrorists had used an RPG-7V portable grenade launcher with anti-tank charges type PG‑7VL; RPG-26 disposable anti-tank rocket launchers, possibly a grenade launcher with a thermobaric charge; no fewer than ten “bottle” type IEDs, no fewer than two IEDs made out of MON‑90 anti-personnel mines and no fewer than four IEDs made out of OZM-72 anti-personnel mines; and firearms and portable grenade launchers (pages 263-73 of the report). 227. As a follow up to that report, on 14 October 2007 the North Ossetian Ministry of the Interior’s expert laboratory examined the explosion marks on the south walls of the gymnasium and confirmed the above conclusions about the possible trajectory of the charges having been fired from the first floor of the south wing of the school and that these shots could not have been fired from houses at 37, 39, 41 Shkolny Lane or the garage roof (report no. SI‑63, page 12). (v) Expert report no. 16/2 228. Expert report no. 16/2 was ordered by the investigation in April 2007 in order to dispel Mr Savelyev’s allegations about the origins of the second explosion in the gymnasium which had resulted in the destruction of a section of the wall under the window on the north side. It was completed on 11 December 2009 (see paragraph 406 below). Like report 16/1, it was carried out by experts of Bazalt. The experts tested all the possibilities suggested by Mr Savelyev, including the use of various types of grenade launchers and flame-throwers upon a similar construction and concluded that their impact had been incompatible with the damage in the gymnasium. The report ran to over 130 pages and concluded that the “origin of the hole in the north-west wall of the gymnasium ... was the detonation of an IED with the equivalent of about six kilograms of TNT, placed at a height of about 500 millimetres from the floor, near the radiator... The power of this explosion’s impact upon the wall was exacerbated by an almost simultaneous explosion of several other IEDs located in the north-west part of the gymnasium, further away from the first explosion” (pages 99-100 of the report). (g) Decision not to charge servicemen with crimes 229. On 3 December 2004 the Vladikavkaz deputy military prosecutor issued an order not to prosecute unnamed military servicemen of the 58th Army of the Ministry of Defence and internal troops of the Ministry of the Interior. The document stated that the investigation had established that the personnel of the army and Ministry of the Interior had used automatic weapons, RPG‑25 grenade launchers, RPO‑A Shmel flame‑throwers and T‑72 tanks. The document then proceeded to describe the events of the siege and storming, in line with witness statements of General Sobolev of the 58th Army. In particular, the document stated that on 1 September 2004, during the first meeting of the OH, it had been decided that Mr Dzasokhov’s involvement in the negotiations was “devoid of purpose” (нецелесообразно) since there was a threat of his being taken hostage as well. It further stated that although the decision to clear the area around the school of civilians and armed “volunteers” had been taken at about 12 noon on 1 September, it had not been implemented until 3 September. Furthermore, on 2 September the terrorists had demanded that Mr Dzasokhov, Mr Zyazikov, Mr Aslakhanov and Dr Roshal arrive for negotiations, but the OH had decided that such talks were also “devoid of purpose”. After the first explosions at 1.10 p.m. the terrorists had opened fire at the hostages running out of the gymnasium, following which the servicemen of the second security perimeter had returned fire. At 2 p.m. a group of sappers under the command of Colonel Nabiyev had started to demine the gymnasium; at the same time he had called for firemen to extinguish the fire. The first fire vehicle had arrived at 2.45 p.m. and contained 2,000 litres of water; the second vehicle had arrived at 3.45 p.m. and proceeded to extinguish the fire. By 9 p.m. the storming of the building had been over, while the search for and elimination of terrorists had continued until 12.30 a.m. on 4 September 2004. 230. The document then summarised the witness statement of Lieutenant-Colonel Tsyban, who explained that the OH had officially been created on 2 September 2004 at about 12 noon under the command of General Andreyev. The OH had decided that Mr Dzasokhov’s involvement in the negotiations could not be authorised in view of the threat of his being taken hostage. 231. The document then related the witness statements of about a dozen servicemen from the 58th Army – sappers, tank and APC commanders. They stated that the tanks had fired seven shots in the evening of 3 September 2004 and that none of them had fired at the school during the daytime. 232. The document referred to several hundred names of military servicemen who had been deployed within the security perimeter. Their statements were summarised in the following manner: “... while securing the area no instances of any loss or stealing of arms or ammunition were noted, and there were no attempts by the terrorists to break through or to get away. Since the commanders had issued an order not to open fire unless there was an open breakthrough of the terrorists, no fire was opened and the use of firearms was regulated by section 11 of the [Army Field Manual]. There were no noted instances of breaches of order or unauthorised use of firearms. No ammunition was used.” 233. The document concluded that the servicemen of the Ministry of the Interior and Ministry of Defence had used “personal, authorised, small‑arms weapons, engineering hardware and chemical weapons, destined to cause harm to manpower, but this ammunition was used in line with the [applicable] regulations and on account of the inability to prevent the terrorists’ actions by any other means; the use of the above weapons resulted in the terrorists’ elimination or detention”. The document further stated that the investigation had obtained no evidence that the use of the above-listed weapons had resulted in harm to any of the hostages. Accordingly, there was no evidence of an offence having been committed. 234. The decision of 3 December 2004 was quashed on 12 September 2005 due to certain technical deficiencies. It is unclear what happened next in this respect. (h) Results of internal inquiries and decisions not to charge officials with crimes (i) Emercom staff 235. On 29 October 2004 a commission from the North Ossetian Emercom carried out an internal investigation into the actions of the Emercom staff during the crisis. According to its findings, the firefighters were aware in advance of the locations of the fire hydrants in the vicinity of the school, but could not use them because they could have been shot at by the terrorists. Hence, they first used mobile cisterns. The staff in charge had drawn up a plan of access for the fire engines to the school, but it was not within the firefighters’ powers to ensure that these routes were accessible – that should have been coordinated by the OH on the basis of that plan. Failure to intervene during the initial stage had been based on the instructions of the OH. Lastly, the use of more powerful hydraulic cannons was deemed impractical by the commission, in view of the limited choice of locations where they could be placed, the distance to the source of the fire of about 60 metres, narrow access to the fire and the danger from the “hot vapour” to those who might still be alive in the burning building. The commission concluded that the actions of the Emercom staff had been correct and justified. 236. On 10 December 2004 an investigator from the Prosecutor General’s Office in the North Caucasus decided not to charge the North Ossetian Minister of Emercom Mr Dzgoyev and his deputy and head of the fire service, Colonel Romanov, with crimes under Article 293 of the Criminal Code (criminal negligence). The decision referred to witness statements made by Colonel Romanov, Mr Dzgoyev and a number of other firefighters and officials of the service. They confirmed that the information about the fire had first come in after the first explosions, soon after 1 p.m., but that the OH had only allowed the firefighters to intervene after 3.20 p.m. They said that seven fire engines had been ready to take part in the operation, but that the access routes to the school had remained busy with cars and people. The two closest fire hydrants had not been accessible; at first the engines had used cisterns to extinguish the fire from two water cannons; later a line to the next hydrant had been made. The decision discussed the question whether the firefighters could have used a more powerful hydraulic water cannon, but the firefighters argued that it could only have produced the desired effects if the distance to the source of fire had been less than 30 metres – that could not have been ensured in view of the ongoing fighting. The decision concluded that at the time of the firefighters’ intervention, the general management of the operation had been taken by the OH headed by the FSB, without whose permission no action could have been taken. The FSB had not allowed the firefighters to intervene for about two hours, in view of a lack of special equipment for them, and thus their members could have been injured or died. In such circumstances, the actions of the Emercom officials contained no elements which could lead to the conclusion that a crime had been committed. It is unclear when the applicants were informed of this decision and whether they had appealed against it. 237. In March 2006 the victims lodged an application to have the competent officials, including Mr Dzasokhov, General Andreyev, Mr Popov and Colonel Romanov, charged with criminal negligence and withholding information entailing danger to people’s lives and health, with serious consequences (Articles 293 § 2 and 237 § 2 of the Criminal Code). In particular, they argued that no necessary preventive measures had been taken prior to the terrorist act; that the OH had remained passive and failed to ensure meaningful negotiations with the hostage takers; that as a result of the inaction of the OH the hostages’ conditions had deteriorated from 1 to 3 September 2004, thus rendering them weak by the time of the storming; that the failure of Mr Dzasokhov, Mr Zyazikov and Mr Aslakhanov to appear for negotiations had excluded the possibility of a dialogue; that the security perimeter around the school had not been properly ensured; and that the storming operation had not been thoroughly prepared. The victims also alleged that the military and security forces had acted without a plan and used excessive and indiscriminate weapons after 1 p.m. on 3 September. In support of that assertion they referred to several dozen witness statements collected during the trial of Mr Nurpashi Kulayev attesting to the use of flame-throwers, grenade launchers, tanks and APCs. They further alleged that there had been a one-and-a-half hour delay between the start of the fire in the gymnasium and the commencement of the extinguishing operation, and that the firefighters had been unprepared since they had lacked water supplies. As a result, dozens of hostages including children in the gymnasium had been burnt alive, since they were injured, shell‑shocked, disoriented or too weak to leave on their own. 238. On 14 March 2006 the Deputy Prosecutor General rejected the application, finding that the decisions of the investigating officers had been lawful and that the actions sought by the victims were not necessary as the relevant facts had been established through other steps. On 26 June 2007 the Promyshlenny District Court of Vladikavkaz allowed an appeal by the victims against the decision and ordered the Deputy Prosecutor General to examine the victims’ applications in detail and provide them with reasoned answers to each of their arguments. On 15 August 2007 the North Ossetia Supreme Court quashed and remitted the District Court’s decision. On 24 August 2007 the District Court confirmed the validity of the decision of 14 March 2006. It was then approved by the North Ossetia Supreme Court on 3 October 2007. Subsequent requests by the victims for a supervisory review were unsuccessful. 239. In the meantime, and in parallel to the above-mentioned proceedings, on 20 April 2006 the head of the investigation team, an investigator of the Prosecutor General’s Office in the Southern Federal Circuit, decided not to open a criminal investigation, under the same provisions of the Criminal Code, in respect of the head and members of the OH. The investigator found that there were no constituent elements of an offence in the officials’ actions. He relied heavily on the conclusions of expert report no. 1, saying that the actions of the OH had been in conformity with the relevant rules and regulations. The victims appealed, and on 3 April 2007 a judge of the Leninskiy District Court of Vladikavkaz quashed the investigator’s decision, since expert report no. 1 had been found to be unlawful. On 2 May 2007 the North Ossetia Supreme Court quashed and remitted the District Court’s decision, finding that it was not based on all the material available. On 6 June 2007, in a new set of proceedings, the Leninskiy District Court rejected all the applications and found that even though expert report no. 1 had been invalidated, the evidence on which it had relied remained valid and supported similar conclusions. On 15 August 2007 the North Ossetia Supreme Court upheld this decision. 240. In a separate decision, also dated 20 April 2006, the same investigator decided not to open criminal proceedings against the North Ossetian Deputy Minister of Emercom and head of the fire service Colonel Romanov and the head of the fire service of the Pravoberezhny District Mr Kharkov. The decision referred to Article 293 § 2 of the Criminal Code, which concerned criminal negligence, and to witness statements confirming that the first information about the explosions and fire in the gymnasium had been received soon after 1 p.m. on 3 September, as well as to the fact that Colonel Romanov had, on several occasions between 1.20 and 3.20 p.m., ordered the firefighters to intervene and then cancelled his orders due to a lack of authorisation by the head of the OH. At 3.25 p.m. two fire engines had arrived at the school with a full load of water, which could last for about 3 to 5 minutes. Once it had been used, two other fire engines had been called in; later, water had been obtained from a fire hydrant because the closest hydrants could not be used. The decision referred to expert report no. 1 and to the fire expert’s report no. 2576/17, 320-328/18-17 (see paragraphs 218 et seq.). (ii) Ministry of Health officials 241. On 30 September 2005 the Russian Ministry of Health informed the Prosecutor General’s Office of the results of its internal inquiry into the actions of its staff from 1 to 3 September. The Ministry conceded that the scale and circumstances of the events had been unprecedented even for its most experienced staff, and that the situation had been “exacerbated by a lack of verifiable information about the number of hostages, the unpredictability of the events and the difficulty in predicting the types of injuries”. The report noted that the situation at the site of the paediatric field hospital set up in Beslan on 2 September 2004 had been made difficult by the presence of a large number of local residents, who had “sometimes turned into a mob displaying signs of emotional/psychological instability”. The work of a mobile group of psychologists had helped to dispel the pressure and create the conditions necessary to administer medical aid. The overall input of the Zashchita Centre was described as vital. 242. The Government, in their submissions made in September 2013, summarised the documents contained in file 20/849 relating to the work of the medical staff as follows. 243. On 1 September 2004 the Ministry of Health set up a coordination cell, joining the forces of the local and federal ministries of health, Emercom, the Zashchita Centre and the Ossetia State forensic bureau (Бюро Судебно‑медицинской экспертизы (БСМЭ) – “the forensic bureau”). From the evening of 1 September, special psychological aid units were put in place for the relatives. A number of other urgent steps were taken, such as putting medical personnel in a number of local hospitals on standby, preparing supplies of necessary equipment and material, including blood for transfusion, ensuring the preparedness of the intensive care and surgery units. 244. On 2 September an emergency paediatric field hospital was set up in Beslan. The “federal and local headquarters” worked out access to the school and evacuation routes and instructed the drivers and medical and paramedical personnel involved. 245. On 3 September an additional hospital was set up in Beslan, equipped to perform urgent surgical operations and other types of emergency care. Measures were taken in order to assist a large number of the injured. A total of 1,300 places were reserved at various hospitals in the region. Both before and after the storming medical teams were brought in from other regions, including highly qualified doctors from Moscow. 246. By the time of the first explosions, over 200 doctors, 307 medical staff and seventy ambulances were in Beslan. This made ninety-four mobile medical teams, including fourteen reserve ones. 247. Between 1.15 and 6.30 p.m. on 3 September 2004, 556 injured people, including 311 children, were transferred to the local hospitals. By 7 p.m. all patients had been placed in hospitals in Beslan and Vladikavkaz and forty-seven urgent operations had been performed. 248. Over 1,000 people were provided with psychological aid. 249. From 4 September 2004 special medical teams visited families, assisting those hostages and their family members who had gone home. Between 5 and 15 September over 200 patients (including 137 children) were transferred for treatment to Moscow by special flights. 250. Between 3 September and 16 December 2004 about 800 patients received medical aid. A total of 305 died at the school, while twenty-six people died in hospital. By 16 December 2004 twenty-six patients (including seven children) continued to receive medical aid in hospitals; others had been discharged. North Ossetia received twenty-six tonnes of medical equipment and supplies in relation to the crisis. (iii) Other officials and members of the OH 251. In May 2007 the applicants applied to the Prosecutor General’s Office in the Southern Federal Circuit to have Mr Dzantiyev, the North Ossetian Minister of the Interior, charged with criminal negligence. On 1 June 2007 that application was dismissed. Following an appeal by the victims, on 18 February and 27 March 2008 the Promyshlenny District Court of Vladikavkaz and the North Ossetia Supreme Court upheld that decision. 252. In July 2007 the applicants requested that the prosecutor’s office “evaluate” the actions of the North Ossetian senior officials who had failed to prevent the terrorist act and inform the population of the imminent threat or ensure a proper security perimeter around the school. They also asked it to verify the lawfulness of the actions of the members of the OH who had authorised the use of indiscriminate weapons and had failed to ensure that the fire was promptly extinguished. They referred to the information contained in the Federal Assembly report (see paragraphs 398 et seq.), also seeking to have the officials concerned and the victims questioned. On 2 August 2007 this application was dismissed in part by the investigator, who found that the questions raised by the victims were the subject of the pending criminal investigation. (i) Establishing the causes of death and injuries 253. On the basis of the medical documents and forensic reports, the causes of death were established for 215 people; the exact cause of death of 116 people could not be established owing to extensive post mortem burns. As to the injured, seventy-nine people received gunshot wounds, ninety-one shrapnel wounds, 302 people suffered from the consequences of the explosions, ten people received concussion, eighty-three people suffered from fractured bones and contusions, thirty-six people received thermal injuries and 109 people suffered psychological and neurological problems. 254. The investigation concluded that the deaths and injuries of the victims were not connected with any actions or omissions on the part of State agents, including the use of firearms. 255. The applicants in their numerous complaints stressed that the forensic expert reports had been carried out without the extraction of bullets, shrapnel and other objects from the bodies. They also stressed that the forensic reports for many people had failed to establish the cause of death altogether, owing to extensive burns. (j) The victims’ applications and complaints 256. In the course of the domestic proceedings the victims lodged several hundred applications with the prosecutor’s office requesting various procedural steps to be taken. They appealed against the results of most of these decisions in the district courts. Copies of most of the applications and complaints, as well as the authorities’ reactions, were submitted to the Court or described by the applicants in their submissions. 257. In July 2006 the victims asked the investigator in charge of the case to find out who had decided against presenting the four men sought by the terrorists for negotiations; to hold confrontations between civilian and police witnesses on the one hand and army servicemen on the other; and to investigate the use of tanks and flame-throwers in the afternoon of 3 September 2004. On 24 July 2006 the investigator rejected the application, stating that the decision to use the appropriate weapons had been taken by the OH and that witness confrontations were not considered useful by the investigation. 258. In January 2007 the applicants asked the investigator to determine who had decided that the four men requested by the terrorists should not participate in the talks and who had authorised the use of tanks and flame‑throwers during the storming. On 30 January 2007 the investigator in charge granted the application and informed the applicants that they would be kept up to date with the investigation results. 259. In August 2007 the applicants asked the investigation to find out the number of hostages that had been communicated by the OH to the FSB, the Ministry of the Interior and the Russian President on each day of the crisis and to question the relevant officials. On 14 August 2007 this application was granted. 260. In November 2007, referring to the results of the forensic reports and witness statements obtained during the trial of Nurpashi Kulayev (see paragraphs 269 et seq.), the victims argued that the bodies of 116 people had been severely burned, rendering it impossible in most cases for the cause of death to be established. However several forensic reports indicated extensive burns as the cause of death. The victims sought to find out who had ordered the delay in the firefighters’ intervention in the gymnasium and whether they had been properly equipped upon arrival. On 16 November 2007 the investigator dismissed the application to bring charges against several officials, referring to the pending investigation. 261. At the victims’ request, on 23 November 2007 the investigator appended to the file the records of the trials of the officers of the Pravoberezhny and Malgobek ROVDs. 262. In December 2007 the investigator granted the victims’ applications, based on information obtained during the trial of Mr Kulayev, to have a number of senior officials questioned about the steps taken in August 2004 with the aim of preventing the terrorist act, in order to clarify the extent of the local police’s involvement in securing Mr Dzasokhov’s passage on the morning of 1 September and to find out how the OH had come up with the figure of 354 hostages that was aired during the crisis. The investigator also granted the victims’ application to have the commander of the FSB Special Services Centre (ЦCН ФСБ России) General Tikhonov questioned, in order to ascertain the details of the use of indiscriminate weapons on the school. 263. On 10 May 2007 the Promyshlenny District Court of Vladikavkaz reviewed, at the applicants’ request, about 120 applications lodged by them with the investigator between December 2005 and March 2007, the results of which they found unsatisfactory. The complaints mostly concerned the following points: the applicants’ attempts to obtain additional evidence about the exact cause of their relatives’ deaths and injuries; information about the reasons for the first three explosions in the gymnasium; the details of the involvement of various military and security units in the storming; information about the types and results of examinations of the weapons found in the school, evidence related to the actions of the OH; information about the actions of firefighters immediately after the first explosions; the extent of the officials’ responsibility for the outcome of the crisis; and the victims’ requests to acquaint themselves with various documents in the file. The applicants’ complaint was dismissed in full, the District Court finding that the investigators had acted lawfully and within the limits of their professional discretion. The court also noted that the proceedings were still pending. The applicants appealed, but on 13 June 2007 the North Ossetia Supreme Court upheld the decision. 264. On 23 October 2007 the Promyshlenny District Court of Vladikavkaz rejected a complaint by the victims about the investigators’ decisions in response to seven applications they had lodged to ascertain the reasons for the first explosions and the origins of the firearms which had caused the hostages’ deaths and injuries, to find out more about the communications with the terrorists, to identify the person who ordered the deployment of tanks, APCs, flame‑throwers and grenade launchers, and to establish the reason for the carbonisation of 116 bodies. The court also rejected the victims’ complaint of inefficiency and delays on the part of the prosecutor’s office. On 8 February 2008 the North Ossetia Supreme Court upheld this decision. 265. On 10 January 2008 the Promyshlenny District Court rejected another complaint in relation to five complaints lodged by the victims with the investigator. They concerned the victims’ access to the expert report on the explosions, ballistics reports and documents relating to the existence of a real threat of a terrorist act prior to 1 September. The court, referring to Article 161 § 3 of the Code of Criminal Procedure, concluded that the restrictions on the victims’ access to the documents had been justified. The remaining actions of the investigation were also found to be lawful. This decision was upheld on appeal on 27 February 2008. 266. According to the decision of the Promyshlenny District Court of 13 March 2008, sixty-two victims and their representatives complained to the Prosecutor General’s Office and then to the court about the investigators’ decisions to reject twelve complaints lodged between December 2007 and January 2008. They included the following demands: to find out the exact reasons for the victims’ deaths where the conclusions of the post-mortem reports had been incomplete; to ascertain whether the carbonisation of the bodies had been caused prior to or after death; to seek an explanation for six victims as to why the conclusions about the reasons for their relatives’ deaths had been based on external inspection without autopsy reports; to establish the causal relationships between the use of flame-throwers, grenade launchers, tanks and APCs during the storming and the hostages’ deaths; to obtain additional questioning of the servicemen of the Malgobek ROVD and of a military unit stationed in the Malgobek District about the prevention of the terrorist act; to clarify the reasons for the appointment of General Andreyev as the head of the OH on 2 September 2004; and to obtain full access to the material of the case file and copies of the complex expert report (including mathematical computations of the explosions, ballistics and explosion examinations). The victims also alleged that they had received no timely responses to their applications and requests, that the investigation had been protracted and lacked objectivity and, in particular, that they had not had access to the most important case documents. The Promyshlenny District Court dismissed all the appeals, finding that the victims’ demands had been satisfied by the investigation wherever possible, or had not been based on the pertinent legislation. On 23 April 2008 the North Ossetia Supreme Court upheld that decision on appeal. 267. On 10 December 2008 the Promyshlenny District Court dismissed another complaint lodged by a group of victims against the decisions taken in response to their complaints to the investigators. Eleven complaints, lodged between February and September 2008, concerned the victims’ access to the ballistics reports and the records of negotiations with the terrorists, obtaining copies of certain documents in the case file and the decisions ordering expert reports. The victims also alleged that the investigation had been unnecessarily protracted, with important steps being delayed, which in turn could have led to a loss of evidence and make the judicial examination of the matters less effective. They asked for the actions of the investigators to be declared unlawful in so far as they had not conducted an effective investigation, had refused to allow victims access to the case file and had failed to establish the extent of the officials’ responsibility. The court found that some documents requested by the victims were confidential, while access to others was regulated by Article 161 § 3 of the Code of Criminal Procedure. On 11 February 2009 the North Ossetia Supreme Court upheld the District Court’s decision. 268. The victims’ subsequent attempts to seek a supervisory review of these decisions were unsuccessful. In September 2015 a group of applicants sought the latest information about the developments in the investigation from the head of the investigation team. They reiterated that they had received no information about the state of proceedings since 2013, particularly in respect of the actions concerning the military and the OH. 2. Criminal investigation in respect of Mr Nurpashi Kulayev 269. The applicants submitted voluminous documents related to the criminal investigation and trial concerning Mr Nurpashi Kulayev, the only terrorist captured alive. In particular, they submitted four volumes of trial records (about 2,000 pages), copies of the trial court judgment (319 pages) and cassation court decision and their appeals to the cassation and supervising courts. The most relevant documents and the applicants’ submissions can be summarised as follows. (a) Investigation and trial before the North Ossetia Supreme Court 270. On 19 January 2005 the criminal investigation in respect of the only surviving terrorist, Mr Kulayev, was separated from criminal case no. 20/849 and assigned the number 20/870. 271. On 17 May 2005 the North Ossetia Supreme Court opened the trial of Mr Kulayev. He was charged with aggravated murder, terrorism, hostage-taking, membership of a criminal gang, illegal firearms handling and attempts on the life of law-enforcement personnel (Articles 105, 205, 206, 209, 222 and 317 of the Criminal Code). Between May 2005 and February 2006 the trial court held sixty-one hearings. (b) Statements by Mr Nurpashi Kulayev 272. In court Mr Kulayev stated that he had joined the group on 31 August 2004. His brother, Mr Khanpash Kulayev, had been a clandestine fighter since the early 1990s, but had lost an arm and had lately been living in Psedakh, their home village. On 31 August 2004 a group of armed men had arrived in a VAZ-2110 and accused his brother of working for the FSB. Both brothers and two of their friends had gone with the armed men to a camp situated about 300 metres away from the road. Late in the night on 31 August 2004 the man in charge of the camp, “Polkovnik”, had told all those present to get into a GAZ-66 truck. There had been thirty-two people, including two women wearing masks. Explosives and arms in backpacks had been placed under the benches and the men had taken seats on the floor of the truck. Responding to the victims’ questions, Mr Kulayev stated that he had not seen any wooden boxes for cartridges (which had later been found in the school canteen). 273. They had spent the night in the valley and in the early hours of the morning had continued their journey. The body of the truck had been covered with canvas and they could not see out. At one point the vehicle had stopped and Mr Kulayev had heard someone asking for the driver’s documents. They had then been told that a policeman had been captured and they had travelled on. The policeman had later been released because he had been a relative of one of the fighters. The ride had lasted around two and a half hours. During the capturing of the school one fighter had been fatally injured and “Polkovnik” had ordered the killing of twenty male hostages. In the school Mr Kulayev had been assigned to the canteen. On 1 September there had been a dispute among the fighters and “Polkovnik” had detonated the explosive device carried by a female suicide bomber. This explosion had fatally wounded the other woman and another fighter of Arab origin. According to Mr Kulayev, many members of the group, including himself and his brother, had been unaware of the nature of their mission, but “Polkovnik” had referred to Basayev’s orders and executed anyone attempting to object. The terrorists had talked between themselves in Ingush and “Polkovnik” had called someone to receive instructions in Russian. 274. Referring to the conversations among the terrorists, Mr Kulayev said that “Polkovnik” had told Mr Aushev that if the four men indicated by them came to the school, they would release 150 hostages for each of them. He also understood that some hostages and fighters would have been able to move in buses to Chechnya if the Russian troops had pulled out of the mountainous districts. 275. Speaking about the first explosions in the gymnasium, Mr Kulayev testified that “Polkovnik” had said that a sniper had “killed the man [holding the switch]”and had then cried to someone over the telephone “What have you done?!” before breaking it; after that he had encouraged the terrorists to fight until the bitter end. Mr Kulayev had jumped out of the canteen window and shouted to the soldiers that they should not shoot there because there were women and children. He denied that he had used his machine gun and had walked into the gymnasium while the hostages were detained there. 276. Two people convicted earlier for terrorist activities testified that they had known Mr Khanpash Kulayev, the accused’s brother, as an active member of the underground terrorist movement and that in 2003 both brothers and several other members of the armed group, together with their families, had lived in a rented house in Ingushetia (Ganiyev R., vol. 4, page 1562 of the trial records, Muzhakhoyeva Z., vol. 4, p. 1611). (c) Reconstruction of the events preceding the hostage-taking and identification of the leaders 277. Some local residents stated in court that they had seen unknown men and suspicious boxes at the school prior to 1 September 2004 (Tomayev V. vol. 1, pp. 360-63; Gutnova L. vol. 1, p. 458; Levina Z. vol. 1, p. 474; Kokova R. vol. 3, p. 1243; Rubayev K. vol. 3, p. 1305). During August 2004 the school building had been partially renovated, but the teachers and director denied that anyone other than the school staff and their families had been involved (Guriyeva N., vol. 2, p. 542; Ganiyeva Ye. vol. 3, p. 1157; Digurova Z. vol. 3, p. 1238). Some teachers testified that they had inspected the school in the early morning of 1 September and there had been no one there (Tsagolov A. vol. 1, p. 265; Avdonina Ye. vol. 2, p. 871; Komayeva‑Gadzhinova R. vol. 2, p. 874; Shcherbinina O. vol. 2, p. 931). 278. The police officer who had been captured by the terrorists on the administrative border on the morning of 1 September 2004 testified that he had stopped the GA‑66 vehicle between 7 a.m. and 8 a.m. The armed men had taken his service pistol, VAZ vehicle and police cap and had driven to Beslan. He had escaped as soon as the shooting started. He denied having known any of the terrorists and confirmed that the terrorists had spoken Ingush between themselves and to him (G.S., vol. 4, p. 1546). 279. As to the prevention of the terrorist act, a senior police officer of the Pravoberezhny ROVD testified in court in November 2005 that at about 8 a.m. on 1 September the school had been inspected, possibly with a service dog. He admitted that, unlike in previous years, no patrol police had been deployed at the school (Khachirov Ch. vol. 3, p. 1215). Mr M. Aydarov, the former head of the Pravoberezhny ROVD, had been aware that the school had been inspected with service dogs on the morning of 1 September, but no appropriate records had been provided (vol. 3, p. 1410). 280. The trial court noted that criminal proceedings in respect of the organisers of the terrorist act were the subject of a separate criminal investigation (no. 20/849, see above). The court cited statements and documents from investigation file no. 20/849. It identified nineteen terrorists (including Mr Kulayev) and referred to thirteen unidentified individuals (including “Abu-Radiy” and “Abu-Farukh”). (d) Questioning of the hostages and granting of victim status 281. It transpires that between October and December 2004 numerous hostages and the victims’ relatives were questioned and granted victim status. By the opening of the trial several hundred people had been granted victim status in the proceedings. Over 230 victims were questioned during the trial; statements by others given during the investigation were read out. 282. The victims questioned in court mostly denied having seen Mr Kulayev in the gymnasium, although several hostages had seen him in the gymnasium, in the corridor between 1 and 3 September and in the canteen during the final stage of the assault. Most of the hostages had not seen Mr Kulayev’s brother Khanpash, who had lost his right arm. Several of them also referred to one particular terrorist: a shaven man with a large scar on his neck, who had been particularly cruel to the hostages and whom they had not identified after the siege was over (witness Mitdziyeva I. vol. 2, p. 520). Most hostages had seen two women suicide bombers, although some hostages said they had seen another woman of Slavic appearance on the first floor of the school on 2 September and possibly a fourth one also on 2 September (Mitdziyeva I. vol. 2, p. 518; Misikov K. vol. 2, p. 571; Scherbinina O. vol. 2, p. 935). One woman told the court that on 2 September terrorist “Abdulla” had asked her if she was Ingush and suggested that they would let her family members go free if she agreed to act as a suicide bomber, since “their two girls had been killed by an ammunition round” fired from the outside (Kudziyeva L. vol. 2, p. 525). The hostages estimated the number of terrorists at between thirty and seventy. 283. With respect to the taking of the school, many hostages testified that as soon as the fighters had surrounded the gathering in the courtyard and started to shoot in the air, another group of fighters had fired from the top of the building. Some witnesses stated that when the shooting had started some children had tried to escape through Shkolny Lane, but there had been fighters there who had forced them to return. Many had seen fighters running to the school from the railway line (Kusayeva R. v. 1 p.147; Misikov Yu. v. 1 p. 471; Daurova M. v. 2 p.574). Others said that when they had entered the school there had already been armed fighters guarding the stairs to the first floor. One boy aged nine at the time testified that on 2 September he and about ten older boys had been forced to take boxes with grenades and mines from an opening under the stage in the meeting hall (Khudalov S. v. 2 p. 866), but no one else from this group could be identified. One witness testified that when the fighters had broken the floors in the gymnasium on 1 September they had taken out a long tube which she supposed had been a grenade launcher (Tsakhilova A. v. 2 p. 896). 284. Police officer Fatima D. gave detailed submissions about the hostage-taking and subsequent events. According to her, a second police officer had failed to arrive at the school. At about 8.50 a.m. one mother told her that a strange truck had been parked nearby. When she went out to check, she heard a suspicious noise. She ran to the staffroom on the first floor to alert the police but as soon as she took the telephone, she was surrounded by several fighters wearing camouflage uniforms. They told her that “everything would be serious this time” and led her to the gymnasium. She estimated that there were about seventy fighters (vol. 1, p. 365). 285. On 1 September the teachers, on the terrorists’ orders, drew up lists of the children aged below seven, although they were never used (Levina Z. v. 1 p. 475; Shcherbinina O. vol. 2, p. 937). Numerous hostages told the court that the terrorists had been extremely annoyed by the information about the number of people being held in the school and that their attitude had become harsher after the figure of 354 people had been announced. They testified that the terrorists had refused to allow them to drink or go to the toilet since “nobody needed them anyway and there would only be 350 of them left” (Kokayeva I. vol. 1, p. 413; Kaloyeva F. vol. 1, p. 448; Pukhayeva Z. vol. 1, p. 461; Daurova Z. vol. 1, p. 481). The hostages complained of mocking, insults and ill-treatment and explained how the terrorists had hit the elderly and children, subjected them to false executions, held parents and grandparents at gunpoint in the children’s view, and had fired into the air in order to keep them quiet. 286. The hostages saw the terrorists’ attitude deteriorating further on 2 September after Mr Aushev had left the school. Several of them said that on 2 and 3 September the terrorists had attempted in vain to liaise with the authorities through those who had had relatives among officials or public figures. 287. The school director Mrs Tsaliyeva was a hostage, together with members of her family. She stated that she had inspected the school on the morning of 1 September, denying allegations that anyone except staff and their relatives had been involved in the renovation. She had been called by the fighters to negotiate and testified that they had been annoyed by the absence of contact with the authorities. On 3 September she had attempted to involve the children of Mr Taymuraz Mamsurov and a prosecutor’s mother in the negotiations, but to no avail (Tsaliyeva L., v. 1 p. 432). 288. Many hostages testified about the explosions in the gymnasium. They said that prior to the explosions the fighters had been behaving in a relaxed manner and preparing lunch. Others mentioned some agitation probably caused by electricity failure in the gymnasium. Some hostages testified that they had seen an IED fixed to a basketball hoop explode (Dzarasov K. v. 1 p. 213; Archinov B. v. 1 p.274). Others insisted that when they had been leaving the gymnasium they could still see large IEDs intact on the basketball hoops (Sidakova Z. v. 1 p. 315) or that only the third explosion had come from that IED (Bekuzariva I. v. 2 p. 962). Some described the first blast as a “fireball” (Dzestelova A. v. 2 p. 538). Many testified about the fire and heat emanating from the explosions, enflaming their clothes and hair and causing burns (Agayeva Z. v. 2 p. 600; Dzheriyeva S. v. 2 p. 614; Kochiyeva F. v. 2 p. 631; Tsgoyev A. v. 2 p. 748; Bugulova F. v. 2 p. 764; Makiyev V., v. 2 p. 826; Khanikayev Sh. v. 2 p. 831; Kokova T., v. 2 p. 884). Many testified that the fire could have killed, injured and shell‑shocked people who had been unable to leave the gymnasium on their own (Tomayeva L. v. 1 p. 357; Gagiyeva I. v. 1 p. 444; Kudziyeva L. v. 2 p. 526; Fidarova S., v. 2 p. 584; Skayeva T. v. 3 p. 1001; Mitdziyeva Z., v. 3 p. 1043; Alikova F. v. 4 p. 1577). Some hostages described how they had been saved by local civilians from the gymnasium and adjacent premises after the explosions (Gagiyeva I. v. 1 p. 444). Numerous witnesses also gave evidence that when the hostages had started to run from the gymnasium through the opening in the wall they had been shot at from the first floor of the school, and many had been wounded. 289. Those hostages who had been taken by the fighters to the canteen and the meeting room testified about the fierce fighting which had taken place there. They stated that the fighters had tried to force the hostages – women and children – to stand in the windows and wave their clothes, and some had been killed by shots fired from outside and by powerful explosions (Kusayeva R., v. 1 p. 152; Sidakova Z., v. 1 p. 313; Urmanov S. v. 1 p. 426; Daurova Z., v. 1 p. 483; Badoyeva N. v. 2 p. 823; Makiyev V. v. 2 p. 826; Svetlova T. v. 2 p. 956; Katuyeva V. v. 2 p. 971). 290. Many also stated that they had not been satisfied with the results of the criminal investigation and that they did not intend to seek damages from the accused, since they considered that the State officials had to bear responsibility for the deaths and injuries. (e) Testimony of the Pravoberezhny ROVD police officers 291. Mr M. Aydarov, former head of the Pravoberezhny ROVD, was questioned in court (vol. 3, pp. 1394-4014) while under investigation in criminal case no. 20/852 for criminal negligence (see paragraph 355 below). He explained that he had only been appointed in mid‑August 2004. The administrative border with Ingushetia in the district was 57 kilometres long and had been mostly unguarded. Many small roads through the fields had been closed off and rendered impassable in view of the heightened terrorist threat; however, this had not suited the locals, who very often had removed the barriers. In August 2004 information had been received about a gathering of armed groups near Psedakh in Ingushetia and a number of steps had been taken on both sides of the administrative border, but at the time the measures had produced no known results. 292. He also explained that out of the fifty-three officers of the ROVD who had been present on 1 September, over forty had been women. It had been difficult to maintain the staff on alert for a long time. As soon as shooting could be heard from the school, at about 9.15 a.m. on 1 September, he had ordered his staff to maintain security around the building. Two servicemen of the ROVD had witnessed the hostage-taking and exchanged fire with the terrorists. 293. Mr T. Murtazov, deputy head of the Pravoberezhny ROVD, was also under investigation for criminal negligence at the time of questioning. He gave detailed submissions about the use of Shmel flame‑throwers on the school from three snipers positioned on the roofs of a technical building on Lermontova Street, a five-storey housing block on the corner of Shkolny and Batagova Streets and the caretaker’s house (vol. 3, p. 1418). He did not know where the snipers had come from. Between 2 and 4 p.m. he had witnessed a tank shooting at the school and the use of grenade launchers by the military. The officer remarked that not a single bullet had been extracted from the bodies of the deceased hostages which could have led to the identification of the servicemen of the Ministry of the Interior (v. 3 p. 1424). 294. Mr Dryayev, another senior ROVD officer, testified that immediately after the first explosions on 3 September he had seen soldiers (of the army or internal troops) firing automatic weapons at the school in response to enemy fire. Soon after 3 p.m. he had seen a tank stationed on Kominterna Street firing about ten shots at the corner of the school from a distance of about 30 metres. These rounds, possibly non-explosive, had damaged the wall and the roof (vol. 3, p. 1428). 295. Police officers of the Pravoberezhny ROVD testified that by the evening of 1 September they had carried out a house-to-house inspection in the district and compiled a list of 900 hostages’ names, which they had submitted to the officer on duty (Khachirov Ch. v. 3 p. 1212; Friyev S. v. 3 p. 1217). 296. The policemen also explained that two men had been assaulted by the crowd on 2 September and detained at the ROVD on suspicion of aiding the terrorists. They turned out to be civilians from a nearby town; both men had been identified and testified in court about this incident. (f) Statements by civilians and police officers who participated in the rescue operation 297. The court questioned several civilians who had helped to evacuate hostages from the gymnasium. Mr Dudiyev testified that he had entered the gymnasium after the first explosions, together with the special forces units, to search for his wife and three children. He had taken out his wounded wife and the body of his daughter, while his brother had evacuated his injured son; his eldest child had also been killed (Dudiyev A. vol. 1, p. 251). Other witnesses, both civilian and police, told the court that they had entered the burning gymnasium several times, taking out injured women and children before the roof had collapsed (Adayev E., vol. 2, p. 659, Totoonti I., vol. 4, p. 1595). One policeman witnessed the fire spreading very quickly on the roof of the school, saying that the firemen had failed to intervene (Badoyev R. vol. 3, p. 1295). 298. Some witnesses saw tanks shooting at the school soon after the explosions (Khosonov Z. vol. 3, p. 1110); one man was injured by an explosion while taking a child out of the gymnasium (Gasiyev T. vol. 2, p. 676). One witness, E. Tetov, explained that he had served in the army as a tank crew member and was well acquainted with tanks and the ammunition used by them. Shortly after 1 p.m. on 3 September he had counted between nine and eleven non-explosive rounds fired from a tank gun. He was also of the opinion that the first explosions and the fire had been started from the outside, by either a flame-thrower or a tracer bullet (vol. 2 pp. 729‑30). One civilian witness stated that he had served in the army as a grenade launcher operator and had identified at least two shots fired from grenade launchers or flame-throwers between the second and third major explosions in the gymnasium (Totoonti I., vol. 4, p. 1603). 299. Several police officers testified that the storming of the building had started unexpectedly and that this explained the casualties. Some of them had had no time to put on protective gear and rushed to the school as soon as they had heard the shooting. Some servicemen described the situation after the first explosions as “chaotic”, when various forces had been shooting at the school building using automatic weapons and other arms (Khosonov Z., vol. 3, p. 1109). They referred to the terrorists’ high level of training and preparedness, which had allowed them to mount resistance in the face of the elite Russian units (Akulov O., vol. 1, p. 492). 300. An officer of the Pravoberezhny ROVD testified that at about 9 a.m. on 3 September, while he had been ensuring the security cordon around the school, he had seen two full carloads of portable grenade launchers (RPG) and flame-throwers (RPO‑A Shmel) being delivered by servicemen of the Ministry of the Interior driving a white Gazel vehicle. He estimated that at least twenty flame-throwers had been unloaded and taken to the snipers’ positions, located about 200 metres from the school. The snipers and the forces of the Ministry of the Interior had used these flame-throwers soon after the explosions at the school, responding to enemy fire from grenade launchers and machine guns (Khachirov Ch. vol. 3, p. 1212). Another policeman counted up to ten shots from flame‑throwers in the direction of the gymnasium roof at around 2 p.m. (R. Bidzheov, vol. 3, p. 1222). Other policemen testified that between 3 and 5 p.m. they had seen a tank firing at the school (Friyev S. vol. 3, p. 1218; Khadikov A. vol. 3, p. 1224; Khayev A. vol. 3, p. 1227; Karayev A. vol. 3, p. 1231) and that shots had been fired from grenade launchers (Karayev A. vol. 3, p. 1231; Aydarov M. vol. 3, p. 1400). (g) Statements by local residents 301. The hostage-taking and subsequent events were witnessed by numerous local residents; some of them were questioned in court. Several passengers of vehicles who had found themselves on the street in front of the school on the morning of 1 September had seen a GAZ‑66 truck arriving in the schoolyard. Some said that they had seen three or four women jumping out of the vehicle. Mr K. Torchinov had been a teacher at school no. 1 and a former investigator of the prosecutor’s office; he lived in the house opposite the school and had watched the ceremony from his window, from a distance of about 200 metres. He gave detailed explanations about the hostage-taking. In particular, he had counted the men who jumped out of the GAZ‑66 vehicle and said that there had been twenty-seven. He had also seen two other fighters in the schoolyard and between seven and eight who had run from the railway lines; at the same time there had been shots fired from the roof and the first floor of the school; he thus estimated the number of fighters at at least forty or forty-five. Mr Torchinov also stated that from 1 to 3 September there had been no soldiers or police lined up along the backyard of the school and that it had been possible to walk there from his house and back (vol. 2, pp. 847-59). 302. Numerous local residents whose relatives had been held in the school stated that they had been appalled by the announcement of the number of hostages. They said that the school had had about 900 students – lists could have been obtained from the local department of education – and that numerous parents and relatives had also been captured. Officials from the local department of education testified that on the morning of 1 September the number of students (830) had been transmitted to the administration with an indication that many relatives could be present at the ceremony (Dzukayeva B. vol. 3, p. 1334; Burgalova Z. vol. 3, p. 1349). Moreover, on 1 September volunteers and police had drawn up lists of over 1,000 hostages. In view of this, they could not explain how the officials had arrived at a figure of 350 (Khosonov Z. vol. 3, p. 1107). 303. Many local residents testified that they had seen or heard a tank shooting at the school after the explosions (Duarov O. vol. 3, p. 1083; Pliyev V. vol. 3, p. 1085; Dzutsev Yu. v. 3 p. 1121; Gagiyev E. vol. 3, p. 1300; Malikiyev A. vol. 3, p. 1308; Savkuyev T. vol. 3, p. 135; Ilyin B. vol. 1, p. 1453). Mrs E. Kesayeva had remained outside the school, where four members of her family were being held hostage. She testified that a tank positioned on Kominterna Street had fired several rounds between 1 p.m. and 4 p.m. (vol. 1, p. 325). One local resident saw a tank enter a courtyard on Pervomayskaya Street and heard it shooting at the school before 3 p.m. on 3 September. The witness was about 50 metres away from the tank (Khabayeva A. vol. 3, p. 1289). All those witnesses described the tank cannon shots as being particularly strong and clearly identifiable despite the overwhelming noise of fierce fighting. 304. Several residents testified about the firemen’s actions. They alleged, in particular, that the firemen had lost time before intervening in the gymnasium and that once the fire engines had arrived, they had been of little use since the water supplies in the cisterns had been quickly exhausted. Moreover, the pressure in the water hoses had been weak and they could not reach the gymnasium from where the machines were stationed. Some witnesses deplored the lack of preparedness by the firemen, who had failed to find out beforehand where to find water locally around the school rather than bringing it in cisterns (Tetov E. vol. 2, p. 729; Katsanov M. vol. 2, p. 802). Other witnesses told the court that they had seen a fire engine stuck in the courtyard and trying to find water for the cistern (Pliyev V. vol. 3, p. 1086). (h) Statements by the servicemen of the internal troops, army and FSB 305. Colonel Bocharov, brigade commander of the internal troops deployed in Beslan on 1 to 4 September, testified in November 2005 that servicemen under his command had ensured the security cordon. Their task had been to prevent the terrorists from breaking through. Four APCs from his brigade had been transferred to the FSB forces on 2 September (v. 3 p. 1209). 306. Officers of the 58th Army testified that their task had been to ensure the “third ring” of security around the school. One officer explained that General Sobolev, the commander of the 58th Army, had instructed him to follow the orders of the FSB officers. Each army vehicle deployed in Beslan had been reinforced by an officer of the FSB who had given orders and coordinated the crews’ actions (Isakov A. vol. 3, p. 1260; Zhogin V. vol. 3, p. 1265). They denied having heard or seen grenade launchers, flame‑throwers or tanks being used prior to late on the evening of 3 September. The tank unit commander stated that between 8.56 p.m. and 9.30 p.m. one tank had fired seven high-fragmentation shells at the school (although the seventh had failed to explode), following orders of the FSB officer in charge. No shots had been fired from the tank guns before or after that (Kindeyev V. vol. 3, p. 1277). 307. One officer, a sapper, testified that he had entered the gymnasium at around 2.40 p.m. on 3 September and had deactivated an IED attached to a basketball hoop. Most IEDs had not exploded and had been deactivated the following day. The officer testified that he had entered the gymnasium with a group of seven servicemen and fifteen or twenty civilians who had evacuated the hostages for about one hour. Initially there had been no fire there, but the premises had been under attack from the north wing of the school. Soon afterwards he had noticed a fire starting in the roof, above the entrance to the gymnasium from the side of the weights room (Gagloyev A. vol. 4, pp. 1715 and 1733). 308. Mr Z., a professional negotiator from the North Ossetian FSB, was called to Beslan at 9.30 a.m. on 1 September. He had a meeting with General Andreyev and then informed him of the talks and received instructions from him. He was placed in a separate room, with a psychologist, and maintained telephone contact with the terrorists every 30 to 35 minutes. His efforts to establish psychological contact with his interlocutor (who called himself “Shahid”) were unsuccessful and he failed to obtain any concessions aimed at alleviating the hostages’ situation. The conversations were conducted in a rude manner; the gangsters insulted him and Dr Roshal. The terrorists repeatedly said that they would talk to the four men named by them and did not present any other demands. They did not specify the number of hostages they were holding, saying only that they had “enough”. They spoke of about twenty people shot dead on the first day and said that they had three days to wait for the authorities to bring the four men together. When asked if Mr Dzasokhov could come alone, the terrorists refused. The first telephone conversation took place at about 4 p.m. on 1 September, the last one after 1 p.m. on 3 September immediately following the first explosion. The witness remembered saying “What have you done?!” and “Shahid” responding “We have fulfilled our duty”. Responding to the victims’ questions, Mr Z. admitted that the negotiations involving Mr Aushev and Mr Gutseriyev had been carried out without him and that he had only been informed of these developments after they had occurred (vol. 4, pp. 1819-43). 309. The head of the FSB in Beslan at the relevant time stated in court in January 2006 that he had not been aware of the information and telexes sent by the Ministry of the Interior in August 2004 about the heightened terrorist threat during the Day of Knowledge. The FSB had not been involved in the protection of the administrative border, but their services had cooperated with the Ministry of the Interior in examining the area around the border (Gaydenko O. v. 4 pp. 1847-54). He did not have any information about the possible escape of terrorists after the storming. 310. The former head of the FSB department in Ingushetia, General Koryakov, confirmed that there had been sufficiently precise information about the activities of terrorist groups in Ingushetia in the summer of 2004 as a number of successful special operations had been carried out, but there had been no information about the armed group in the Malgobek District. He testified that he had arrived in Beslan on the morning of 1 September and had remained there for three days, working in close cooperation with General Andreyev. He was not certain if he had been a member of the OH, but he had been fully aware of its work. On the morning of 1 September General Koryakov had called the Ingushetian President Mr Zyazikov and informed him of the terrorist act; at that time no demand to involve Mr Zyazikov in the negotiations had been made. He could not reach Mr Zyazikov later since his mobile telephone had been switched off. By questioning the escaped hostages, they had tried to identify terrorists from Ingushetia and involve their relatives in the negotiations. They had therefore brought in the wife and children of a presumed terrorist, but her appeal had had no effect. The witness had not been aware of the note taken out by Mr Aushev (v. 4 pp. 1841-90). 311. Most of the army and internal troops servicemen failed to testify in court, and their witness statements collected during the investigation of criminal case no. 20/849 were read out (see paragraph 207 above). (i) Statements by members of the OH and other senior officials (i) Lieutenant-Colonel Tsyban 312. On 15 November 2005 the court questioned Lieutenant-Colonel Tsyban (v. 3 pp. 1192-203), who at the relevant time headed the operational management group at the North Ossetian Ministry of the Interior (начальник группы оперативного управления по РСО при МВД РФ). The group was created on 11 August 2004 by an order of the Minister of the Interior with the mission of preventing terrorist acts, planning and carrying out special operations and controlling and managing resources allocated for counter‑terrorism activities. When asked about the meetings, functions and actions of the commission prior to 1 September 2004, he could not recall any details. 313. Lieutenant-Colonel Tsyban learnt of the hostage-taking at 9.30 a.m. on 1 September and went to Beslan. By late morning, he had organised the security perimeter around the school. As of noon on 1 September he reported to the deputy commander of the internal troops of the Ministry of the Interior, General Vnukov. Although he was a member of the OH, he stated that his participation had been limited to ensuring the second security perimeter. He had not been aware of the number of hostages, the nature of the terrorists’ demands or the negotiation attempts. He had not taken part in any meetings or discussions of the OH. As to the rescue operation, he stated that the servicemen of the internal troops had not used weapons, approached the school or taken part in the rescue operation. He had not been at the school on 3 September. He refused to answer when asked whether any terrorists could have passed through the security perimeter. (ii) General Sobolev 314. General Sobolev, the commander of the 58th Army of the Ministry of Defence, was questioned in November 2005 (vol. 3, pp. 1316-30). He was the most senior officer from the Ministry of Defence in the OH. He described the OH’s principal strategy of negotiation with the hostage takers, but said that the attempts had been futile because the terrorists had only been prepared to talk if the four people named by them came. Dr Roshal had attempted to contact the terrorists, but they had refused to talk to him; Mr Dzasokhov had been prevented by the OH from going to the school, and no contact had been established with Mr Zyazikov. The danger to the lives of the four men had been too high in the absence of any goodwill shown by the terrorists. In General Sobolev’s view, no negotiations were possible in the circumstances; the storming of the school should have taken place immediately, before the IEDs had been assembled. He believed that the terrorists had been supported and funded by foreign services, including the Central Intelligence Agency (of the United States). His task had been mostly limited to ensuring the security perimeter around the school and providing the necessary equipment; he was not aware of the number of hostages, negotiation strategies or the rest of the plan drawn up by the OH. 315. He named the forces and equipment brought in by the army. Eight APCs and three tanks had been transferred under the command of the FSB to be used as cover in the event of a storming. A group of sappers had demined the gymnasium on the afternoon of 3 September; they had found four mines and ten smaller IEDs connected by a “double chain” which had allowed them to be activated all at once or one by one. Three IEDs had exploded prior to demining; in one of them only the detonator had exploded but not the main charge. 316. Turning to the storming, General Sobolev explained that it had started unexpectedly. Officers of the FSB’s Alpha unit had been training in Vladikavkaz and had to be brought in urgently; many of them had had no time to prepare. This had led to an extremely high number of casualties: a third of the elite troops who had stormed the building had been injured or killed. He had not been aware that flame-throwers or grenade launchers had been used. The tank cannon had fired seven shots after 9 p.m. He was of the opinion that the army had successfully concluded its mission. (iii) Mr Dzantiyev 317. Mr Dzantiyev testified in November 2005 that at the relevant time he had been the North Ossetian Minister of the Interior. He had arrived in Beslan at about 10 a.m. on 1 September and followed Mr Dzasokhov’s orders. As of 3 p.m. on 1 September General Andreyev, the head of the North Ossetian FSB, had taken over the command of the operation. Mr Dzantiyev’s tasks had been to ensure security around the school and evacuate civilians from the area. The victims referred to the decree of the Russian Prime Minister of 2 September 2004 by which Mr Dzantiyev had been appointed deputy head of the OH; however, the witness insisted that he had not been informed of this, had not assumed such responsibilities and had been excluded from the OH meetings. Mr Dzantiyev had received orders from the Russian Minister of the Interior and his deputy Mr Pankov, who had arrived in Beslan, and on two occasions the deputy head of the FSB Mr Anisimov had asked him to check the situation in two villages. Mr Dzantiyev had been aware by the evening of 1 September, from the lists drawn up by the local police, that the number of hostages had been at least 700. He did not know where the figure of 354 had come from. He had no information about the use of heavy weapons during the storming but knew that later a number of empty tubes from Shmel flame‑throwers had been found on the nearby roofs (vol. 3, pp. 1371‑94). (iv) Mr Dzugayev 318. In November 2005 the court questioned Mr Dzugayev (v. 3 pp. 1430‑45). At the relevant time Mr Dzugayev was the head of the information and analytical department of the North Ossetian President’s administration. He testified that he had arrived in Beslan on 1 September 2004 at about 10 a.m. He had been instructed by Mr Dzasokhov and General Andreyev to liaise with the press, but had not been aware of the OH’s work, composition and strategy. He was asked a number of questions about the figure of 354 hostages which he had consistently announced to the press between 1 and 3 September. He explained that he had been told the figure by General Andreyev, who had referred to the absence of any exact lists. He had always stressed the preliminary nature of this information. (v) General Andreyev 319. General Andreyev, who at the relevant time was the head of the North Ossetian FSB and head of the OH, was questioned in court in December 2005 (vol. 3-4, pp. 1487-523). He gave a detailed account of his actions and the work of the OH during the crisis. According to him, no formal leadership over the operation had been assumed prior to 2 p.m. on 2 September, but informally all the people with responsibility – members of the operational management group – had carried out their tasks under his and Mr Dzasokhov’s guidance. According to General Andreyev, as of 2 September the OH included seven officials: himself as the head, Lieutenant-Colonel Tsyban as his deputy, Mr Sobolev, Mr Dzgoyev, Mr Goncharov, the North Ossetian Minister of Education Mrs Levitskaya, and Mr Vasilyev from the State television company. 320. Mr Pronichev, deputy head of the FSB, had assisted the OH in a personal capacity but had assumed no formal role. General Andreyev referred to the Suppression of Terrorism Act, which stipulated the plan of action in the event that the hostage takers put forward political demands. The same law excluded political questions from the possible subjects of negotiations. He believed that the terrorists’ primary aim had been to achieve a resumption of the Ossetian-Ingush ethnic conflict, of which there was a real threat. From the first hours of the crisis, work had been carried out in close cooperation with the head of the FSB in Ingushetia. 321. General Andreyev detailed the authorities’ unsuccessful attempts to negotiate with the terrorists: their mobile telephone had initially been switched off, and the school telephone had been disconnected. The terrorists had often interrupted the contact, saying that they would call back. The OH had involved a professional negotiator, who was a staff member of the FSB. The terrorists had behaved in an aggressive and hostile manner and refused to discuss any proposals unless the four men indicated by them came to Beslan. General Andreyev insisted that Mr Zyazikov, the Ingushetian President, could not be found, while the three other men had been in contact with the OH (Mr Aslakhanov had talked to the terrorists over the telephone and had arrived in Beslan on the afternoon of 3 September). The OH had invited two influential men of Ingush origin, Mr Aushev and Mr Gutseriyev, to take part in the negotiations. The terrorists had been inflexible and refused to consider any proposals aimed at aiding the hostages or the possibilities of a ransom and exit. No written demands had been issued and a number of political demands had been made verbally through Mr Aushev. Responding to the questions about the number of hostages, General Andreyev insisted that there had been no exact lists beyond the 354 names and the OH had not wanted to release unreliable information. Responding to the victims’ questions, he reiterated that in the course of the negotiations the terrorists had not referred to the number of hostages and that in his opinion they had not been particularly interested in the figure announced. He testified that on the evening of 2 September Mr Gutseriyev had talked to Mr Zakayev in London and the latter had promised to establish contact with Mr Maskhadov. However, no direct line of communication with Mr Maskhadov had been established. 322. The OH’s strategy had been to negotiate, and no plan consisting of resolving the situation by force had been considered. General Andreyev explained that the involvement of the special forces had only been foreseen in the event of a mass killing of the hostages. 323. Turning to the special forces of the FSB, General Andreyev specified that the FSB Special Services Centre, under the command of General Tikhonov, had their own temporary headquarters located on the third floor of the Beslan administration building, at the local department of the FSB. Questions concerning the types and use of special weapons, such as flame-throwers, lay within the competence of that Centre. General Andreyev had issued an order to start the operation aimed at liberating the hostages and at neutralising the terrorists as soon as the latter had started to shoot at escaping hostages. He conceded that at the beginning of the operation there had been shots fired by other servicemen, and the FSB forces had been in danger of friendly fire. He insisted that the tanks and flame-throwers had been used only after 9 p.m. on 3 September, when there had been no hostages still alive in the school. General Andreyev stated that two terrorists had been captured alive, but one of them had been lynched by the locals. 324. During questioning, the victims openly accused General Andreyev of incompetence, concealing the truth and being responsible for the fatalities. They were reprimanded by the presiding judge. (vi) Mr Dzgoyev 325. The court heard a statement by the North Ossetian Minister of Emercom Mr Dzgoyev (v. 4 pp. 1523-44). He explained that he had been informed that he was a member of the OH on the evening of 2 September; however, both before and after that time he had functioned semi-autonomously. He had estimated the number of hostages at around 800 and on 2 September Mr Aushev had informed him personally that there were over 1,000; this information had been sufficient to prepare the rescue operation. 326. Mr Dzgoyev answered numerous questions about the extinguishing of the fire in the gymnasium. He stated that the information about a fire at the school (but not in the gymnasium) had been noted by their service at 1.05 p.m. on 3 September. The message that the roof of the gymnasium was starting to collapse had been noted at 2.40 p.m. General Tikhonov, the commander of the Special Services Centre, had authorised the firemen to move in at 3.10 p.m. and at 3.20 p.m. they had arrived at the scene. Mr Dzgoyev was told that by that time there had been no hostages still alive in the gymnasium; this information had later been confirmed by the forensic reports. Five fire brigades had been involved. By 4 p.m. the fire had been contained. Later the fire brigades had been ordered by the FSB to leave the gymnasium. They had then entered again and left the building at 6 p.m. 327. The witness explained that another fire vehicle had been brought in by a relative of a hostage from a nearby factory; it had been seen by many witnesses but had not been an Emercom car. He also insisted that the vehicles and cisterns had been fully prepared, that hoses had been laid from the nearest water hydrants and that the fire equipment had been sufficient. 328. At 7 a.m. on 4 September Emercom teams had started the clearance operation. They had worked in parallel with the staff of the FSB, army sappers and the prosecutor’s office. They had collected the remains of 323 hostages, of which 112 had been found in the gymnasium and adjacent premises. The bodies of thirty-one terrorists had also been found. During the day the Emercom staff had cleared the debris with the use of cranes, bulldozers and excavators; the debris had first been shifted manually to collect human remains and other relevant items. Only after sifting had the rubble been loaded onto the trucks supplied by the local administration. Mr Dzgoyev had personally inspected the destroyed wing of the school, where two floors had collapsed onto the cellar. He had seen the terrorists’ bodies but no hostages’ remains. Emercom had finished the clearance work by 7 p.m. on 4 September, after which the building had been handed over to the local administration. (vii) Mr Dzasokhov 329. Mr Dzasokhov was questioned on 27 December 2005 (v. 4 pp. 1562‑690). Then the North Ossetian President, he stated that at about noon on 1 September General Andreyev had received a verbal instruction from the FSB, with reference to the Russian Government, to head the OH. Mr Dzasokhov had not been a member of the OH, which he considered had been a mistake. However, he had done whatever he had thought was right and within his powers. He had been prepared to go and negotiate with the terrorists, but he had been told that he would be placed under arrest if he did so. He had not talked to the terrorists over the telephone, since this had been done by a professional negotiator. He had participated in the meeting with the relatives at the Cultural Centre on 1 and 2 September. He had also had several talks with General Tikhonov, the commander of the FSB Special Services Centre, who had shared his concerns about the use of force. 330. Mr Dzasokhov believed that too much operative information of low quality had been circulated prior to the terrorist act, which had made it difficult to react. In particular, there had been insufficient clarity about the terrorists’ plans in the summer of 2004, although the heightened security threat had been evident. 331. Turning to the negotiations, Mr Dzasokhov testified that he had seen the handwritten note allegedly signed by Mr Basayev which Mr Aushev had taken out of the school. He also explained that on 2 September he had talked to Mr Zakayev in London. At 12 noon on 3 September Mr Zakayev had confirmed that the request to take part in the negotiations had been transmitted to Mr Maskhadov. Mr Dzasokhov had informed the OH accordingly. (viii) Other officials 332. Mr Ogoyev, a former member of the counter-terrorism commission of North Ossetia and secretary of its security council testified that the OH appointed on 2 September had excluded all other people from its meetings. He had had no access to the OH, and Mr Dzasokhov and Mr Mamsurov had only been invited to its meetings on two occasions (Ogoyev U. vol. 3, p. 1362). He could not recall the work of the North Ossetian counter– terrorism commission created on 23 August 2004, of which he had been a member. 333. Mrs Levitskaya was the North Ossetian Minister of Education at the relevant time. She testified that she had gone to Beslan on 1, 2 and 3 September. She had been at the town administration and had had a number of discussions with Mr Dzasokhov and several other Ossetian officials. She had not participated in any OH sessions or other meetings. She had learnt that she had been a member of the OH on 10 September 2004 during a meeting of the North Ossetian Parliament (vol. 4, p. 1696). She had been informed on 1 September by the local department of education about the number of pupils at the school; she had also been told that this information had already been transferred to the district authorities. 334. The North Ossetian Deputy Minister of the Interior admitted that their resources had been insufficient to monitor the border crossing points with Ingushetia. He had also been aware of the attempts to block small roads in the Pravoberezhny District and the problems that had been encountered in August 2004 – a lack of staff, sabotage by the locals and the absence of funds to pay for the works (Popov V., vol. 4, p. 1807). (j) Questioning of doctors 335. The director of the Zashchita Centre Mr Goncharov (vol. 3, pp. 1166‑78) testified that on 2 September he had been told that about 300 people were being held hostage and that medical assistance had been planned accordingly. Only after he had met with Mr Aushev on 2 September had he realised that the number of hostages had actually been much higher. That evening he had set up emergency paediatric teams, called in ambulances from the region, carried out training and prepared for the arrival of patients. They had mostly expected victims of injuries; the probability of gas poisoning had been considered low. He testified that although he had been a member of the OH as an official of the Ministry of Public Health, he had not taken part in any meetings or discussions. He had not received any information from the OH, as, in his view, the number of hostages had been the only relevant factor and that had been communicated to him personally by Mr Aushev. His own experience and available resources had been sufficient. Being highly experienced in providing emergency treatment to a large number of victims, his work had been relatively independent from the rest of the OH. Besides, his previous experience had shown that the “security structures” would not share their plans with the medics, out of a need to keep such considerations secret. 336. Turning to the organisation of medical assistance, Mr Goncharov explained that by the morning of 3 September they had had about 500 people on standby in Beslan, including 183 doctors, over seventy ambulances, one field paediatrician hospital and several intensive care units. “Carriers” with stretchers had been grouped about 700 metres from the school, with ambulances and medical vehicles placed in several spots around the building. The idea had been to take the injured to Beslan Hospital where the sorting would take place, urgent operations and life–saving measures would be carried out in the paediatric field hospital and, for adults, in Beslan Hospital and then those who could be transported to Vladikavkaz would be taken there (about 20 kilometres away). 337. Immediately after the explosions at 1 p.m. on 3 September he had received a call from the OH to bring in the medical rescue team. For four hours on 1 September the sorting centre at Beslan Hospital had treated 546 patients and carried out seventy-six urgent operations. Five people had been taken to the hospital in agony and had died within a few hours; fourteen other patients had died within twenty-four hours. In total, 199 adults had been evacuated to other hospitals after urgent medical assistance; fifty-five children had been in a life‑threatening condition and had had to be treated on the spot, seven children had had emergency surgery. On the night of 3 September six children in a critical condition had been taken to Moscow in a specially equipped aeroplane. There had been difficulties in maintaining the necessary security around the school, and later around the hospital, to avoid disruption of services by the relatives. 338. Mr Soplevenko, then North Ossetian Minister of Public Health, was questioned in court on 15 November 2005 (vol. 3, pp. 1179-91). He also testified that between 1 and 3 September he had not received any particular instructions, but rather general indications by Mr Dzasokhov that “adequate medical aid” should be provided. He had not been part of the OH or any other body during the crisis. He had learnt from the nursing mothers who had walked out with Mr Aushev on 2 September that more than 1,000 people were being held in the school. In cooperation with Mr Goncharov he had alerted the hospitals in Vladikavkaz that they would have to admit patients: beds had been freed at five hospitals, surgery and intensive care teams had been put on standby, and stocks of medical and dressing material had been set aside. 339. Dr Roshal, director of the Moscow Institute of Emergency Paediatric Surgery, was questioned in February 2006. He stated that he had been informed by journalists on 1 September about the hostage-taking and had immediately gone to Beslan. He had been taken to the town administration where the OH and other officials had been stationed. He had been taken to a room with Mr Z. where he had received brief instructions from him. On several occasions he had called the terrorists; each time they had reacted in a hostile manner and refused to discuss anything unless all four men requested by them came. His attempts to convince them to accept water, food, medicine or to allow him to examine and treat the wounded and sick had been flatly rejected; moreover, the terrorists had said that all the hostages had declared a “dry hunger strike” in support of their demands. On 2 September at about 11 a.m. the terrorists had called him and let him talk to the school director, who had pleaded with him to intervene since their situation was dire. On 2 September Dr Roshal had personally telephoned Mr Zakayev in London and let Mr Dzasokhov talk to him (v. 4 pp. 1900-25). (k) Information about forensic reports 340. In December 2005 the court, following an application by the victims, questioned a senior expert of the forensic laboratory in Rostov‑on‑Don, who on 13 September 2004 had been appointed the chief of the team in charge of identifying the remains by DNA testing. The expert explained that their laboratory was the best equipped in Russia and that the genetic testing would take between three days and five weeks, depending on the quality of the material under examination. All work in the Beslan cases had been completed within a month and a half. Mr Korniyenko stated that the results obtained through genetic pairing had been final and could not be challenged on grounds of possible misidentification. He admitted that many relatives had refused to believe that their loved ones had died and that on some occasions they had carried out second rounds of tests with other relatives’ DNA, primarily out of respect. The expert cited difficulties in identifying the remains which had been burnt “to ashes” and in identifying body fragments, a process which had lasted until summer 2005. The same expert group had worked with the terrorists’ remains: twenty-three had been identified, while eight remained unidentified (v. 3 p. 1469). 341. Hundreds of forensic reports on the victims were examined by the court. They included examinations of bodies, results of the identification of remains through DNA testing, conclusions of experts regarding damage to the health of the surviving hostages and other documents. Over 110 forensic reports concluded that the cause of death could not be established in view of many of the remains being extensively charred and burned and the absence of other injuries. Other reports named extensive burns, gunshot wounds, traumatic amputation of the extremities and injuries to the head and body as the causes of death. Injuries from gunshots and explosions, burns and psychological trauma were recorded for the surviving hostages. (l) Additional requests and applications lodged by the victims 342. In the course of the proceedings the victims lodged several hundred applications. Some of them were lodged with the district courts in Vladikavkaz, where the investigation was being conducted, while others were lodged directly with the North Ossetia Supreme Court. Some of them were submitted to the Court, while others were mentioned in the statement of facts or in the trial records. 343. On 29 September 2005 the victims sought the withdrawal of the head of the investigation team, Deputy Prosecutor General Mr Shepel. They argued that the investigation had been incomplete and failed to take into account all the relevant information about the crime. They indicated that copies of many expert reports had been unavailable to them, that the prosecutor’s office had ignored numerous facts and statements which had differed from the facts “selected” to form the basis of Mr Kulayev’s indictment, and that the role of various officials in the hostages’ deaths had not been clarified. This complaint was dismissed. 344. In January 2006 the victims sought the withdrawal of the prosecution and the judge presiding in the case, referring to the incomplete nature of the investigation and the repeated dismissal of their complaints by the judge. They also questioned the logic behind separating the investigation concerning the terrorist act and its consequences into several sets of criminal proceedings. These complaints were also dismissed (vol. 4, p. 1801). 345. In November and December 2005 and in January 2006 the victims applied to the trial court for permission to have a number of additional witnesses called and questioned: members of the OH, senior civilian and FSB officers who had been present in Beslan during the operation, members of the North Ossetian Parliament’s investigative commission on Beslan, and people who had negotiated with the terrorists, including Mr Gutseriyev, Dr Roshal, Mr Z. and Mr Aslakhanov. The court agreed to question several Ossetian officials who were members of the OH, but refused to call other officials, negotiators and members of the North Ossetian Parliament. It also refused to include the results of the investigation of the North Ossetian parliamentary commission in the case file (v. 3 pp. 1311-312, v. 4 pp. 1570, 1589, 1651, 1778-783, 1796, 1929). In January 2006 the court granted the victims’ application to question Mr Z., Dr Roshal and some senior FSB officials. 346. In February 2006 the victims again sought the withdrawal of the prosecutor in the trial. They argued, with reference to the European Convention on Human Rights, that the investigation had been ineffective and incomplete in ascertaining the most important elements of the crime. They sought to have independent experts appointed in order to clarify key questions concerning the preparation of the terrorist act, the composition and powers of the OH, the reasons for the first explosions, the use of flame-throwers, grenade launchers and tank guns, and the belated arrival of the firefighters. The request was dismissed (v. 4 p. 1936). 347. In July 2006 the victims sought to acquaint themselves with the entire set of documents in the criminal case and to be allowed to take copies. Similar requests were lodged in March and July 2007, but apparently to no avail. (m) The judgment of 16 May 2006 348. In his final submissions of February 2006 the prosecutor asked the court to apply the death penalty to the accused. The victims argued that the investigation and the trial had failed to elucidate many key elements of the events and that the officials responsible should be prosecuted for their actions which had led to the tragedy. 349. On 16 May 2006 the North Ossetia Supreme Court found Mr Nurpashi Kulayev guilty of a number of crimes, including membership of a criminal gang, handling of unlawful arms and explosives, aggravated hostage-taking, murder, and attempts on the life of law–enforcement personnel. The 319-page judgment summarised witness and victim statements and referred to forensic reports, death certificates, expert reports and other evidence. The court found that 317 hostages, one Beslan civilian and two Emercom workers had been killed; 728 hostages had received injuries of varying degrees (151 received serious injuries, 530 received moderately serious injuries and 102 received minor injuries). Ten servicemen of the FSB had been killed and fifty-five servicemen of the army and law-enforcement bodies wounded. The actions of the criminal group had caused significant damage to the school and private properties in Beslan. Mr Kulayev was sentenced to life imprisonment. (n) Cassation appeal before the Supreme Court 350. The victims appealed against the court’s decision. In detailed complaints of 30 August and 8 September 2006 they claimed that the court had failed to undertake a thorough and effective investigation and that its conclusions had not been corroborated by the facts. They argued that the court had failed to investigate the authorities’ failure to prevent the terrorist attack, apportion responsibility for the decisions taken by the OH, establish the exact places and circumstances of the first explosions in the gymnasium and assess the lawfulness of the use of indiscriminate weapons by the security forces. They also complained that the court had not allowed them full access to the case material. Their complaints were supplemented by reference to relevant statements and documents. 351. On 26 December 2006 the Supreme Court held a cassation appeal hearing. Four victims, the defendants’ lawyer and the prosecutor made oral submissions. The Supreme Court slightly amended the characterisation of one offence imputed to Mr Kulayev, while the remaining parts of the parties’ complaints were dismissed. In particular, the Supreme Court found that the questions raised by the victims had no bearing on the characterisation of Mr Kulayev’s actions and that the victims had been allowed full access to the case documents after the completion of the investigation. 352. On the same day the Supreme Court issued a separate ruling (частное определение) in respect of Deputy Prosecutor General Mr Shepel, who had acted as the State prosecutor in the trial. The court noted that his request to the trial court to apply the death penalty to Mr Kulayev had been contrary to the applicable legislation and as such incited the court to adopt a manifestly unlawful decision. (o) The applicants’ view of the investigation 353. The applicants in application no. 26562/07 submitted that during the trial they had heard testimony and examined other evidence. It had allowed them to draw conclusions about the actions of the OH and other officials, most of which could not be elucidated within the course of the trial. Referring to the case material and other evidence, the applicants made the following inferences: (i) from 1 to 3 September the hostages had been detained in inhuman conditions and subjected to intense physical and emotional stress including deprivation of food and water, humiliation, witnessing the suffering and death of family members, and a feeling of helplessness in the absence of any meaningful negotiation attempts from the outside world; (ii) the conclusion that the IEDs had caused the first explosions was not supported by the hostages’ statements and the state of the gymnasium; (iii) after the first explosions the servicemen of the army and FSB had used heavy indiscriminate weapons including a tank gun, APC machine guns, flame-throwers and grenade launchers; (iv) the OH had not made the saving of hostages its primary aim and had authorised the use of heavy weapons during the storming; (v) the firefighters’ intervention had been significantly delayed, resulting in additional victims in the gymnasium. 3. Criminal proceedings against police officers 354. In parallel to the proceedings in criminal case no. 20/849 and that concerning the actions of Mr Kulayev, two additional criminal investigations were conducted against police officers on charges of professional negligence. (a) Criminal proceedings against the servicemen of the Pravoberezhny ROVD 355. On 20 September 2004 the Deputy Prosecutor General Mr Kolesnikov ordered the opening of a separate criminal investigation for negligence on the part of the head of the Pravoberezhny ROVD, Mr Aydarov, his deputy on issues of public safety, Mr Murtazov, and the ROVD’s chief of staff, Mr Dryayev. This criminal case was assigned the number 20/852. 356. The police officers were charged with negligence entailing serious consequences and the death of two or more people under Article 293 §§ 2 and 3 of the Criminal Code. They were accused of failing to properly organise an anti-terrorist defence and to prevent terrorist attacks in August 2004, despite the heightened terrorist threat and the relevant telexes and orders of the North Ossetian Ministry of the Interior. 357. Over 180 people were granted victim status in the proceedings. Although no procedural documents were submitted, it appears from the cassation appeal by the victims that only those whose relatives had died were granted victim status in the proceedings, while other hostages were refused this status. 358. On 20 March 2006 the Pravoberezhny District Court of North Ossetia started hearing the case. The applicants submitted four volumes of trial records, comprising about 1,500 pages and covering sixty-nine court hearings. 359. On 29 May 2007 the court terminated the criminal proceedings against the three officials, applying to them the provisions of the Amnesty Act of 22 September 2006. They agreed to the application of that Act, which absolved them from criminal responsibility for the acts committed during the period covered by it (see paragraph 464 below). The prosecutor’s office supported the application of the amnesty, while the victims objected. Outraged by the verdict, the victims present in the courtroom ransacked the premises. 360. Between 5 and 8 June 2007 seventy-five victims appealed against this decision. They challenged the applicability of the Amnesty Act to the circumstances of the case, arguing in particular that the counter‑terrorism operation in Beslan had started after the crime in question had been committed. They also complained that the court had refused to consider civil claims at the same time, that many other hostages and relatives of the injured had been refused victim status in the proceedings, that one volume of the criminal investigation file (no. 43) had been declared confidential by the trial court and thus the victims had been denied access to it, that a number of key witnesses had not been called, and that the trial court had refused to take into account additional evidence such as the report of the North Ossetian Parliament about the investigation into the terrorist act. 361. On 2 August 2007 the Supreme Court of North Ossetia at last instance upheld the judgment of 29 May 2007. It found the victims’ allegations about procedural deficiencies to be irrelevant to the conclusion and confirmed the applicability of the Amnesty Act. 362. The victims applied for supervisory review of the above decisions, but to no avail. (b) Criminal proceedings against the servicemen of the Malgobek ROVD 363. On 7 October 2004 a separate criminal investigation was opened in respect of the head of the Malgobek ROVD, Mr Yevloyev, and his deputy, Mr Kotiyev, for negligence entailing serious consequences (Article 293 §§ 2 and 3 of the Criminal Code). It appears that at least one hundred former hostages or their relatives were granted victim status in these proceedings. 364. The applicants submitted various documents related to this trial, including about 200 pages of trial court records, corrections by the victims of these records, copies of their complaints and other documents. As shown by these documents, the officials of the Malgobek ROVD had been charged with failing to spot the terrorists who had gathered and trained in the district and had travelled on 1 September 2004 to North Ossetia. The investigation obtained a number of documents which contained sufficiently clear and precise information about the possible terrorist threat and the actions to be taken to counter it. In particular, on 22 August 2004 the Ingushetia Ministry of the Interior had issued Order no. 611 concerning a terrorist threat to public security, putting all staff of the Ministry on heightened alert until further notice. This document instructed all heads of district departments of the interior to contact the local municipalities, hunters and forest workers, in order to keep track of the movements of any suspicious looking men, and to check all trucks and other vehicles capable of transporting illicit cargo, if necessary using service dogs. On 23 August 2004 Mr Yevloyev issued a corresponding order on measures to be taken in the Malgobek District. 365. On 25 August 2004 the Ingushetia Ministry of the Interior issued Order no. 617 on security measures in schools and educational facilities. By this order the police were called to take special measures aimed at protecting educational facilities against possible terrorist acts. On 28 August 2008 Mr Yevloyev issued a corresponding document for the Malgobek District. 366. On 31 August 2004 the Ingushetia Ministry of the Interior sent a directive to all district departments, citing operative information about a possible terrorist act in educational facilities on the opening of the academic year. Again, a number of urgent steps involving local government and school principals were recommended. 367. The trial was conducted by the Supreme Court of Ingushetia in closed sessions in Nalchik, Kabardino-Balkaria. The defendants opted for a trial by jury. On 5 October 2007 the jury found the defendants not guilty. On the same date the Supreme Court of Ingushetia fully acquitted the defendants and rejected the civil actions lodged by the victims within the same proceedings. 368. The victims appealed, and on 6 March 2008 the Supreme Court confirmed the validity of the judgment. The victims’ subsequent applications for supervisory review were unsuccessful. D. Civil proceedings brought by the victims 1. First group of claimants 369. In November 2007 a group of victims lodged a civil claim against the Ministry of the Interior, seeking compensation for the damage caused by the terrorist act. The victims referred to the judgment of the Pravoberezhny District Court of 29 May 2007 in respect of the officers of the Pravoberezhny ROVD of Beslan. They argued that the application of the Amnesty Act did not exclude the possibility of claiming damages in civil proceedings. Arguing that the Ministry of the Interior had failed to take steps to prevent the terrorist act, they sought financial compensation in respect of each family member who had died or had been a hostage. 370. On several occasions the Pravoberezhny District Court requested the applicants to supplement their claims. On 22 May 2008 the court ordered the case to be transferred to the Leninskiy District Court of Vladikavkaz attached to the North Ossetian Ministry of the Interior. On 26 September 2008 the Leninskiy District Court ordered the case to be transferred to the Zamoskvoretskiy District Court of Moscow near to the Ministry of the Interior of Russia. On 21 October 2008 the North Ossetia Supreme Court, following an appeal by the applicants, quashed a ruling made by the Zamoskvoretskiy District Court and remitted the case to the Leninskiy District Court. 371. On 10 December 2008 the Leninskiy District Court of Vladikavkaz dismissed the applicants’ civil action against the Ministry of the Interior. It explained that the Suppression of Terrorism Act, which had been relied on by the claimants, did not provide for compensation for non-pecuniary damage by a State body which had participated in a counter-terrorism operation. As to the applicants’ attempt to link the compensation claim to the decision not to prosecute the officers of the Pravoberezhny ROVD, the court dismissed it as it concerned another defendant. 372. On 24 February 2009 the North Ossetia Supreme Court rejected an appeal by the applicants against the above decision. Their subsequent attempts to obtain supervisory review of these decisions were unsuccessful. 2. Second group of claimants 373. In separate proceedings another group of victims attempted to sue both the Russian and North Ossetian Ministries of the Interior for non‑pecuniary damage sustained by them by the terrorist act. On 9 December 2009 the Leninskiy District Court of Vladikavkaz dismissed the claim, giving similar reasoning. On 17 March 2009 the North Ossetia Supreme Court upheld this decision at last instance. E. Parliamentary inquiries 1. Report prepared by the North Ossetian Parliament 374. On 10 September 2004 the North Ossetian Parliament set up a commission to examine and analyse the events in Beslan from 1 to 3 September 2004. In its work the commission relied on the material available, including official documents, photographs, video footage and audio material, press articles, witness statements and their own information sources. The commission’s report was published on 29 November 2005. The report was forty-two pages long and contained chapters on the chronology of the terrorist act, facts and an analysis of the events preceding the hostage-taking, the actions of the OH and the various State agencies involved, an examination of the first explosions in the gymnasium, detailed information about the fighters and various statistical information relating to the act. The report ended with recommendations to the authorities. (a) Prevention of the terrorist act 375. The commission strongly criticised the local police and the Ingushetian and North Ossetian branches of the FSB. It expressed particular dismay at the fact that despite a “heightened security threat” the terrorist group had been able to gather and train unnoticed in the vicinity of a village and a major local road, as well as to pass unhindered to the school in the centre of a town across the administrative border, which was supposed to have been under special protection. The commission argued that the police’s attention had been diverted to the presidential elections in Chechnya which had taken place on 29 August 2004, following which no real attention had been paid to other security threats. (b) The work and composition of the OH 376. Turning to the work of the OH, the report was highly critical of its composition and functioning. It concluded that the “first, so‑called ‘republican’ OH” had been created on 1 September 2004 at 10.30 a.m., in line with the Suppression of Terrorism Act and the pre-existing plan dated 30 July 2004. It had comprised eleven people under Mr Dzasokhov’s command and had included the heads of the North Ossetian FSB, Ministry of the Interior and other officials. In the presence of the OH members, Dr Roshal and a number of other public figures, Mr Dzasokhov had announced that he was prepared to go to the school; however, the deputy Minister of the Interior of Russia, Mr Pankov, had replied that in that case he would be authorised to arrest him. Mr Dzasokhov himself had confirmed that he had been informed by senior officials in Moscow that he should not take “any steps which could lead to further complications in the operation aimed at liberating the hostages”. This “republican” OH had continued to consider possible strategies aimed at liberating the hostages throughout the crisis. It had also considered the possibility of inviting Mr Maskhadov to negotiate. 377. In the meantime, on the afternoon of 1 September 2004 the President of Russia, in accordance with a secret order issued by the Russian Government (no. 1146-rs), had determined the composition of the OH under the command of General V. Andreyev, the head of the North Ossetian FSB. The OH had included seven people: the deputy head of the counter-terrorism commission of North Ossetia Lieutenant-Colonel Tsyban, the commander of the 58th Army of the Ministry of Defence General‑Lieutenant V. Sobolev, the North Ossetian Minister of Emercom Mr Dzgoyev, the North Ossetian Minister of Education Mrs Levitskaya, the director of the Zashchita Centre Mr Goncharov, and the deputy head of the information programmes department of Rossiya, Mr Vasilyev. The report criticised the composition of the OH, which had excluded not only Mr Dzasokhov – the North Ossetian President – but also a number of other senior officials from the republic. It also noted that two deputy heads of the FSB who had arrived in Beslan, Mr Anisimov and Mr Pronichev, had not been officially designated to take on any tasks in the OH. This had led to a situation of a multitude of “leaderships”. 378. The report described the situation as follows: “The striking disunity of the headquarters is further proved by their locations. The Beslan administration building saw the following distribution of bodies and officials. In the left wing of the ground floor – [the] FSB (Generals V. Andreyev and T. Kaloyev). In the office next to them – Mr Pronichev and Mr Anisimov. On the third floor in the left wing were the Republic’s President, Mr Dzasokhov, Parliament’s speaker Mr Mamsurov, Plenipotentiary Representative of the Russian President in the Southern Federal Circuit Mr V. Yakovlev, and a group of Duma deputies headed by Mr D. Rogozin. In the right wing of the third floor worked the commanders of the Alfa and Vympel special forces units under the leadership of General Tikhonov. However, the most closed and mysterious structure was situated in the south wing of the ground floor of the [administration building], keeping its work secret from all members of the above-listed headquarters. In it worked people who did not belong to any official headquarters structure: Mr Anisimov and Mr Pronichev, Mr Pankov, Mr Kaloyev and others. Another secretive structure was located on the second floor of the building, in the centre. This was a sort of ‘ideological headquarters’ where all information going public was verified and edited prior to publication. Most probably, the announcement of the figure of 354 hostages had been decided there ... In addition, the commander of the 58th Army, Mr Sobolev, had set up his headquarters outside the administration building. Mr Dzgoyev, who, according to his own statement, had been “in reserve”, was also stationed outside the building, as was the North Ossetian Minister of the Interior ... The formal nature of [General] Andreyev’s appointment as OH commander is supported by well-known facts. The head of the North Ossetian FSB had left the headquarters on dozens of occasions and thus lost control over the situation: he talked to the Beslan citizens outside the OH, met with journalists [and] accompanied Mr Aushev to the school on 2 September and the Emercom group on 3 September. How could the General, on whose decisions the lives of hundreds of people depended, behave in this way? This is either excluded or, to the contrary, quite possible, if actual decisions for [General] Andreyev had been taken by his immediate superiors – Mr Pronichev, Mr Anisimov and, probably, the head of the North Caucasus department of the FSB, Mr Kaloyev. There is reason to believe that [General] Andreyev’s orders and directives were not formally recorded, that no meetings of the OH took place, and that everything was decided verbally in the course of working discussions with various agencies ... One gets the impression that the OH under [General] Andreyev’s command oscillated between two extremes: on the one hand, without making public the terrorists’ demands it was searching (or pretending to search) for negotiators who would be able to participate in such talks; on the other hand, it constantly announced the impossibility of a forced solution, while at the same time being obliged not simply to consider this option but to take steps in order to implement it ... By the end of the second day, not a single federal official who could at least partially discuss the terrorists’ demands had contacted them with the aim of negotiating. Becoming more and more convinced that their demands were not being considered and that the topic of negotiations remained the hostages’ supply with food and water, the liberation of the infants and elderly, an ‘escape corridor’ to Chechnya and the like, the terrorists hardened the hostages’ conditions. As to the terrorists’ agreement to allow the removal of two dozen bodies from the school courtyard, it was probably caused by the fighters’ wish to scare the population and make the OH more flexible, since one could easily predict the impression on the relatives of an Emercom truck loaded with corpses. Incomplete information about the development and content of the negotiations, and the lack of clarity about the videotape transmitted to the headquarters, leave many questions unanswered ... Without questioning the principle of non-compliance with the terrorists’ demands, although the Suppression of Terrorism Act speaks about minimal concessions to the terrorists, it appears that it would have been much more reasonable if the federal authorities, to whom the terrorists’ demands had been directed, had undertaken to implement it rather than delegate this problem to the regional authorities or even a paediatrician. It is obvious that any promises by the regional authorities not supported by appropriate guarantees by the highest officials could not have inspired the fighters’ confidence, and they could not have taken the so-called ‘security corridor’ seriously.” (c) The first explosions 379. The report argued that the first two explosions could not have come from the IEDs. The first explosion, according to the hostages’ testimony, had occurred in the north part of the gymnasium roof space, destroying part of the roof and creating a mushroom-shaped smoke cloud above the explosion. The report argued that this could not have been the result of an IED explosion for a number of reasons: the terrorists had not mined the roof or the roof space of the gymnasium, so not a single electric cable had led there; a mine in the gymnasium could not have destroyed the ceiling and roof 6 metres above; there would have been several simultaneous explosions because they had been connected in a single chain; the mushroom-shaped cloud could not have risen within seconds to about 13 to 15 metres above the roof from an IED explosion inside the gymnasium; the damage to the basketball hoop and the brick wall of the gymnasium bore evidence of the passage of a device fired from outside. The second explosion, which had created a half-metre-wide opening in the brick wall under the window, had not been the result of an IED either, since the floorboards immediately near the hole had not been damaged, unlike the floorboards under the basketball hoop where the IED had later detonated. 380. The report stated that the video-recording of the events had captured not only the smoke cloud from the first explosion, but also the sounds of both explosions, leading to the conclusion that the shots had been fired from a grenade launcher or a flame-thrower. The report considered that the nature of the destruction was consistent with this version. The choice of targets inside the gymnasium had been determined by the presence there of the pedal‑holding fighters; since a sniper could not have reached them, a grenade had resolved this situation. 381. The report found that the third explosion had most probably resulted from an IED being affected by spreading fire, following which the fire had spread from the ceiling to the floor of the gymnasium. 382. The document concluded by saying that the exploration of the first explosions should have been carried out properly within the framework of the criminal investigation. The report deplored the hasty clearing of the site, which had been opened to the public on 5 September 2004. It referred to “hundreds of people who had found objects which should have been of interest to the investigation”. A number of items had apparently been collected from the town rubbish dump where the debris had been taken on 4 September in trucks. 383. In a separate conclusion, the report stated that the active involvement of civilian volunteers immediately after the explosions had saved many hostages’ lives. The evacuation had been carried out by people who had taken on “the functions of the police, firemen and emergency workers”. (d) The actions of rescue and security forces 384. The report evaluated the number of army personnel and police officers (excluding the FSB) deployed within the security perimeter around the school at about 1,750 people. Three security cordons were judged to have been of little effect and had basically fallen apart once the operation had started. Hundreds of civilians and dozens of private cars had passed unhindered through the cordons, while filtration groups formed in advance from servicemen of the police special forces (Отдел милиции особого назначения (ОМОН)) and the Pravoberezhny ROVD had not stopped for an identity check any of the volunteers who had helped to evacuate the hostages. The report remarked that a number of men had arrived from elsewhere in Ossetia and spent two days around the school; they had often been unshaven, dirtied with blood and soot, and could not be distinguished from the terrorists. 385. The report then addressed the problem of the ambulance and fire services accessing the school, commenting that it had been made difficult by vehicles parked in the adjacent streets which had not been towed away. The first fire engine, which had arrived at the school at about 2 p.m., had not been carrying a full load of water in its cistern. Other fire brigades which had arrived even later had allowed civilian volunteers to operate the water hoses. 386. The report found it established that between 2 p.m. and 2.30 p.m. on 3 September a tank with hull number 328 stationed behind the railway line had fired several non-explosive rounds at the canteen and kitchen, while at around 4.30 p.m. a tank with hull number 325 stationed on Kominterna Street had fired at the canteen from a close distance, towards the area immediately above the entrance to the cellar. The commission’s members could not agree that the use of the tank to fire at the canteen before 5 p.m. had been justified in view of the probable presence of the last group of hostages with the terrorists. The commission had entered the cellar and found it entirely intact and bearing no traces of the terrorists’ alleged stay there. No complete information could be obtained about the use of tanks, helicopters, flame‑throwers or other heavy weapons. 387. The document separately noted the multitude of lines of responsibility within the various agencies involved. According to the commission’s information, the commander of the 58th Army had regularly reported to the Chief of Staff of the Ministry of Defence in Moscow and had obtained instructions from him in return. The Ministry of the Interior had commanded the largest contingent in Beslan and had initially followed the orders of its own headquarters based in the administration building; it later followed the instructions issued by the FSB. 388. Turning to the role of the FSB, the report stated the following: “The Russian FSB has remained the most closed structure in terms of the Commission’s efforts to obtain information in order to find out about its actions between 1 and 3 September 2004. Therefore, it is very difficult to accept, without further verification, the statement that, according to the operative groups of the Special Services Centre, by 6 p.m. there remained no living hostages with the terrorists (in the classrooms, cellar and roof space).” (e) The fighters’ identities 389. The report devoted some attention to the number of fighters and their identities. It noted discrepancies in the names and number of identified and non-identified terrorists in the documents issued by the prosecutor’s office in relation to the investigation in criminal case no. 20/849. Relying on the information provided by the Prosecutor General’s Office, the report listed thirty-eight names or aliases; of them twenty-two people (including Mr N. Kulayev) were identified by their full name, date of birth, ethnic origin and place of residence, and fourteen people were identified provisionally. In the list of thirty-eight people, at least nine had previously been detained by the law-enforcement authorities; some of them had been released for unknown reasons. According to the report, Mr Iliyev had been detained in 2003 in Ingushetia on charges of illegal arms and ammunition handling, but the case had been closed two months later; Khanpash Kulayev had been sentenced to nine years in prison in 2001; Mr Shebikhanov had been charged with attacking a military convoy in August 2003 and released by jury in July 2004; Mr Tarshkhoyev had been convicted at least three times and given suspended sentences for illegal arms handling and theft, most recently in March 2001; Mr Khochubarov (“Polkovnik”) had been on trial for illegal arms handling; and Mr Khodov had been wanted for a number of serious crimes including terrorist acts and had been detained in 2002 but released. Most of the other identified terrorists were known to the law‑enforcement authorities, who had retained their fingerprints, on the basis of which their bodies were identified. Many were on wanted lists for various crimes. 390. Some of those initially announced by the Prosecutor General’s Office as identified bodies in Beslan had later been killed in other places. Mr Gorchkhanov’s death had first been announced in Beslan, but in October 2005 his name had again been announced by the Deputy Prosecutor General Mr Shepel as one of the organisers of the attack at Nalchik, Kabardino‑Balkaria, who had been killed. Mr Kodzoyev had first been identified as one of the terrorists in Beslan and had apparently had a telephone conversation with his wife, whom the authorities had brought to the school on 2 September. His death had then been announced in an anti-terrorist operation in Ingushetia in April 2005. The report deplored the lack of clarity in such an important aspect of the investigation and asked the prosecutor’s office to issue clear and exhaustive information in this regard. (f) Statistical information 391. The report contained a table compiled on the basis of information provided by the Prosecutor General’s Office including various figures related to the total number of hostages and the number of people, killed, injured and liberated as a result of the anti-terrorist operation. The commission noted that the causes of death for 331 people had been as follows: twenty had died in hospital; fifty-one (including twenty-one men killed on 1 September) had died of gunshot wounds; 150 had died of shell wounds; ten had died of fire injuries and four had been killed by blunt force trauma injuries. In 116 cases the cause of death could not be established owing to extensive fire damage. Eighty-three bodies had been identified through DNA matching and six cases had called for exhumation and DNA testing, procedures which had lasted until April 2005. The report concluded that the real reasons for many victims’ deaths and injuries had not been established: bullets and shell fragments had not been extracted from the bodies, and no ballistics reports had been made to analyse the bullets and cartridges found at the scene. (g) The report’s publication, reactions and further information 392. The commission’s report was made public in December 2005. Mr Torshin stated that it posed more questions than it answered, and its findings and conclusions were not mentioned in the report prepared by the Federal Assembly (see below). 393. In 2007 the report was published as a separate document. By that time the authors had prepared additional statistical data. It included a complete list of the hostages, with indications as to their injuries and dates of death, and other important findings. Many of the figures arrived at by the authors of the report differed from those used by the prosecutor’s office. 394. In particular, the authors stated that 1,116 people (not 1,127 as indicated by the Prosecutor General’s Office) had been taken hostage; three people had escaped on 1 September; seventeen (not twenty-one) men had been shot dead on 1 September and twenty-four (not twenty-six) people had been led out by Mr Aushev on 2 September. By 1 p.m. on 1 September 1,072 hostages had remained alive in the school; 284 had been killed during the storming; ten had died in hospital within two months and three more had died by 2006. Ten special forces servicemen, two servicemen of Emercom and seven civilians had been killed: three civilians had been killed on 1 September by the assailants and four more had died during the storming while evacuating the hostages. Thirty-five civilians had been wounded, the majority of them while evacuating the hostages from the school. 395. The publication gave a list of the servicemen of the FSB, Ministry of the Interior and Emercom who had been killed (twelve) and injured (fifty-two) during the terrorist act. 396. Turning to the causes of death, the publication stated that the commission had examined over 300 orders for forensic expert reports issued by the prosecutor’s office on 3 and 4 September 2004 and the forensic reports issued by the forensic bureau. The document highlighted that the investigation’s orders had suggested that the experts should conduct external examinations of the bodies, and carry out a full autopsy only “where necessary”. Only a few cases had thus necessitated a full examination; one third of the expert reports had concluded that “the cause of death could not be established”. In total, the document stated that 159 bodies out of 333 had displayed burns, although for most cases the experts had noted that the carbonisation had most probably occurred post mortem. They also noted that a disproportionately high number of victims had died of gunshot wounds – forty-four civilians, including eleven women and nine children – while only seven servicemen out of eleven had died of gunshot wounds. 397. Lastly, the report noted that nine exhumations (and not six as indicated in the official documents) had been carried out for an additional verification of the remains. The report listed these cases. 2. The Federal Assembly report (a) Report prepared by the commission 398. On 20 and 22 September 2004 both chambers of the Federal Assembly (the Russian Parliament) – the State Duma and Federation Council – decided to create a joint commission in order to investigate the reasons for and circumstances of the terrorist act in Beslan. About twenty members of both chambers were appointed to the commission, which was chaired by Mr Aleksandr Torshin, deputy speaker of the Federation Council. The commission undertook a number of investigative measures, including visits to Beslan, Ingushetia, Chechnya and Rostov‑on‑Don. 399. The commission questioned forty-five senior officials, including the Prime Minister, several federal ministers, Mr Aslakhanov, an aide to the Russian President; Mr Patrushev, Mr Pronichev and Mr Anisimov, the head of the FSB and his two deputies; General Tikhonov, commander of the FSB Special Services Centre; several senior officials from the Prosecutor General’s Office, including four deputies to the Prosecutor General; North Ossetian and Ingushetian officials, including Mr Dzasokhov and Mr Zyazikov; and people who had negotiated with the terrorists: Mr Aushev, Mr Gutseriyev and Dr Roshal. The commission received several hundred telephone calls to a special line and letters. 400. On 22 December 2006 the commission’s report was presented to the Federal Assembly. It ran to 240 pages and included a chronology of the terrorist act, chapters on the actions of the State authorities, a historical and political analysis of terrorism in the North Caucasus and a number of legislative recommendations. Two commission members refused to sign it. One of them, Mr Savelyev, prepared an alternative report (see below). 401. The report’s main conclusions were principally in line with the conclusions of the criminal investigations. In particular, it found that: (i) prior to the terrorist act, a number of security measures had not been taken by the local administration and police forces in North Ossetia and Ingushetia. The conduct of the police in the Malgobek District was described as professional negligence and the actions of police in Ingushetia in general as “keeping aloof” from following the orders from the Ministry of the Interior (pages 107-08 of the report). The North Ossetian police had failed to comply with certain precautionary measures and this had facilitated the terrorists’ attack at the school; (ii) the actions of the federal authorities had been adequate and correct; (iii) the OH had been correct in its actions aimed at negotiations with the terrorists, however there had been a number of weak points in its composition and the way it had conducted its work and informed the population of the developments (pages 84 and 94 of the report); (iv) the first explosions in the gymnasium had been caused by two IEDs (page 87); and (v) the use of flame-throwers and the tank gun against the school had been authorised by the commander of the FSB Special Services Centre after 6 p.m. on 3 September and they had not caused any harm to the hostages, who by that time had been evacuated (page 89). (b) Separate report by Mr Yuriy Savelyev (i) The report 402. Mr Yuriy Savelyev, a deputy of the State Duma elected in 2003 from the Rodina party, was a member of the commission headed by Mr Torshin. He was a rocket scientist by profession, had a doctorate in technical sciences, was the director of the St Petersburg Military Mechanics Institute and had written numerous scientific works and training manuals on rocket construction, ballistics, thermodynamics and pertinent fields. 403. In the summer of 2006 Mr Savelyev announced that he strongly disagreed with the report drafted by the commission. Later that year he published a separate report, based on the material to which he had access as a commission member. The report, entitled “Beslan: The Hostages’ Truth” (“Беслан: Правда Заложников”), was in seven parts: (i) ’The first explosions in the gymnasium’, 259 pages with fifty‑eight photographs (“Part 1”); (ii) ‘The origin and development of the fire in the gymnasium’, 133 pages with forty-three photographs (“Part 2”); (iii) ’The use of portable flame-throwers and grenade launchers’, ninety‑seven pages with forty-nine photographs (“Part 3”); (iv) ’The use of T-72 tanks and APC-80 military vehicles’, 140 pages with fifty-two photographs (“Part 4”); (v) ’Women in the terrorist group’, sixty-nine pages with twelve photographs (“Part 5”); (vi) ’Losses among the hostages sustained outside the gymnasium’, 145 pages with fifty-four photographs (“Part 6”); and (vii) ’The circumstances of the seizure of hostages’, 296 pages with twenty-one photographs (“Part 7”). 404. This report was submitted to the Court, and its entire content was published on the Internet site www.pravdabeslana.ru. 405. Although based on the same factual material, the report also relied on the author’s own technical expertise and the way it was presented and its conclusions differed drastically from the document signed by the majority of the parliamentary commission and thus from the conclusions reached by that time by the criminal investigation. 406. To sum up the most important distinctions, in Part 1 Mr Savelyev concluded that the first explosion had resulted from the detonation in the attics over the north-east part of the gymnasium of a thermobaric grenade launched by a portable grenade launcher from the roof of a house at 37 Shkolny Lane. The terrorist holding the “dead man’s switch” right under the detonation had been killed instantly. The explosion had created a zone of powerful smouldering combustion in the wood and attic insulation material, which had later caught fire. The second explosion had occurred twenty-two seconds later under the first window of the north side of the gymnasium, destroying the brick wall and throwing the bricks outside, while the windowpane situated immediately above the opening had remained intact. Mr Savelyev concluded that the nature and extent of destruction in this particular area ruled out the idea that it had come from an IED inside the gymnasium. He argued that the explosion had probably been caused by a portable anti-tank missile fired from the roof of a house at 41 Shkolny Lane. The projectile had entered the gymnasium from the opposite window and created the opening in the wall below the windowpane. 407. Mr Savelyev also argued in Part 2 that the fire which had been triggered by the first explosion in the attics had continued to spread unabated until 3.20 p.m. The broken windows of the gymnasium and the opening torn in the roof by the explosion had created a powerful draught, feeding the smouldering insulation with oxygen. The fire had raged in the attics with sufficient force to destroy the wooden beams holding the roof slates, which had finally collapsed by 3.20 p.m., burying the hostages unable to leave under the burning fragments. The firemen had intervened after 3.20 p.m., by which time the fire from the collapsed roof had spread to the floor and walls of the gymnasium. 408. Part 3 of the report included detailed information and an analysis of the type and number of arms and ammunition used between 1 and 4 September 2004. This information was made available to the commission, whilst the victims had no direct access to it. According to the report, volume 1 of the criminal investigation file no. 20/849 contained a “joint record of the use of arms and ammunition during the military operation” (cводный акт об израсходовании боеприпасов при выполнении соответствующей боевой задачи), no. 27 of 10 September 2004. According to this record, various military units had used over 9,000 cartridges for automatic weapons (5.45 mm PS, 7.62 mm LPS, 5.45 mm T), ten disposable anti-tank rocket launchers (RPG‑26), 18 propelled anti-tank grenades (PG‑7VL), eight high-fragmentation warheads for a 125 millimetre calibre tank gun (125 mm OF) and ninety smoke grenades (81 mm ZD6) (see paragraphs 219 and 220 above). 409. The report also noted that on 20 September 2004 members of the parliamentary commission had discovered in the attic of 39 Shkolny Lane six empty tubes from RPO‑A flame-throwers and three empty tubes of disposable RPG‑26 anti‑tank rocket launchers, the serial numbers of which had been noted by the commission members in an appropriate record on 22 September 2004. These tubes had been transmitted to the prosecutor’s team carrying out the criminal investigation. According to the report, volume 2 of criminal case file no. 20/849 contained a document dated 25 September 2004 and signed by Lieutenant‑Colonel Vasilyev from military unit no. 77078 of the 58th Army. This document stated that the FSB units had received seven RPO‑A flame‑throwers from military storage and listed their serial numbers. After the operation two flame-throwers with the indicated numbers, plus one with a different serial number, had been returned to storage (see paragraph 219 above). At the same time, Mr Savelyev noted that the serial numbers of flame‑throwers mentioned in the commission’s record of 22 September 2004 and in the document issued by Lieutenant-Colonel Vasilyev on 25 September 2004 differed. He referred to other contradictory evidence given by military servicemen and statements by the Deputy Prosecutor General concerning the use of flame‑throwers, concluding that at least nine disposable RPO‑A flame‑throwers had been used by the special forces. Mr Savelyev also referred to the witness statements of one serviceman of the FSB given to the investigation (volume 5 p. 38 of file no. 20/849), according to whom RPG‑26 grenade launchers and RPO‑A flame-throwers had been used during the storming, in daytime (see paragraph 220 above), and the statement General Tikhonov of the FSB made to the commission on 28 October 2004 saying that the RPG grenade launchers and RPO‑A flame‑throwers had been used at 3 p.m. 410. Mr Savelyev listed detailed characteristics of each type of the projectiles. According to his conclusions, after the first two explosions at 1.03 p.m. the school building was subjected to the following assault: between 1.30 p.m. and 2 p.m. the windows of the first floor of the south wing were fired at with portable grenade launchers, probably types RPG‑26 and RShG‑2; between 2.50 p.m. and 3.05 p.m. flame-throwers (RPO-A) were used upon the roof of the main building, RPG‑26 and RShG‑2 grenade launchers were fired at the south-facing windows of the first floor of the south wing and a RPO-A flame-thrower upon the roof of the south wing at the point where it joined the main building. He also argued that at least one thermobaric grenade had been launched from a MI‑24 helicopter at a target in the central area of the roof of the main building above the Ossetian language classroom, at a terrorist sniper who could not have been suppressed by any other means. 411. Part 4 concentrated on the use of tanks and APCs during the storming. Having analysed numerous witness statements and material evidence, the report drew the following conclusions: three tanks with hull numbers 320, 325 and 328 had taken positions around the school. Tanks with hull numbers 325 and 328 had been positioned near a house at 101 Kominterna Street. These two tanks had repeatedly fired at the school building at 2.25 p.m. and then between 3 p.m and 4 p.m. on 3 September. Seven additional shots had been fired from a tank with hull number 325 at the canteen windows and the wall and stairwell of the south wing. 412. Part 5 of the report was devoted to an analysis of the witness statements and other evidence about the women in the terrorist group. Mr Savelyev concluded that the group had included five women: four suicide bombers who had changed places with each other so that there had always been two of them in the gymnasium at any one time, while the fifth woman had probably been a sniper and had remained on the top floor of the school. 413. Part 6 of the report examined the situation of the hostages whom the terrorists had forced to move from the gymnasium to the south wing after the first explosions. From photographs and video footage of the events and witness accounts, Mr Savelyev concluded that between 1.05 p.m. and 2.20 p.m. the terrorists had evacuated about 300 people to the south wing. The hostages had been divided in more or less equal numbers between the canteen and kitchen on the ground floor and the main meeting room on the first floor. The south wing had become an area of fierce fighting between the terrorists and the assault troops; eight out of ten FSB elite officers had died there. The presence of hostages in that wing had not been taken into account by the assaulting troops, who had used indiscriminate weapons. Mr Savelyev noted the absence of any detailed description of the location of the hostages’ bodies, even though this could have allowed the circumstances of the hostages’ deaths in the south wing to be established. He argued that the bodies in the gymnasium had been exposed to fire, while the number of people who had been found dead adjacent to the gymnasium had been known. He thus estimated the number of hostages who had lost their lives during the fighting in the south wing at about 110. 414. Appended to Part 6 was a “study case” – a document prepared by several authors, including the head of the forensic bureau, summarising their experiences regarding the Beslan terrorist act. The document listed various problems related to the collection, transportation and storage of remains, the organisation of the identification process and the compiling of forensic reports. In view of the large number of remains, many with extensive injuries and difficult to identify, together with the presence of numerous aggrieved relatives, on 4 September the prosecutor’s office had taken the decision first to permit the relatives to identify the remains and then to carry out forensic examinations. As a result, there had been a number of incorrect identifications which later had to be corrected. Furthermore, in view of these constraints most bodies had been subjected to an external examination only. The exact cause of death had been established in 213 cases: of those, gunshot wounds in 51 cases (15.5 %), shell wounds in 148 cases (45%), burns in 10 cases (3%), and blunt force trauma injuries in 4 cases (1.2%). The cause of death had not been established in 116 cases (35.6%) due to extensive charring. The document concluded by giving a number of recommendations for the future, including the establishment of a single information centre and careful compliance with various procedural stages, with people responsible for each stage. 415. Part 7 of the report covered the first moments of the school seizure on 1 September. On the basis of witness accounts, Mr Savelyev concluded that a small group of terrorists – between five and seven – had been in the crowd by 9 a.m. Following a signal by one of them, who had started to shoot into the air, another group of ten to twelve people had entered the school building from Shkolny Lane and other sides. Some of them had run to the first floor while others had broken windows and doors on the ground floor so that the hostages could enter the building. At this point the GAZ-66 vehicle stationed on Kominterna Street near the school fence had approached the main school entrance and up to fifteen people had descended from it. This vehicle had left after the fighters had descended. Lastly, a second GAZ-66 vehicle with a different registration plate had entered from Lermontovskaya Street to Kominterna at high speed, raising a large column of dust mentioned by many witnesses. Over twenty fighters, including four women, had descended from it and run towards the school; the vehicle had then broken down the school gates and stopped in the courtyard. The overall number of terrorists in the school had been between fifty-six and seventy-eight. (ii) Official and public reaction 416. In response to Mr Savelyev’s allegations about the origins of the first explosions and the use of indiscriminate weapons on the gymnasium, the Prosecutor’s Office ordered expert reports. In 2007 and 2008 experts from the State‑owned scientific and production company Bazalt and the Ministry of Defence Central Research and Testing Institute named after Karbyshev produced two expert reports on the explosions (see paragraphs 224 and 228 above). The results were not published, but were cited by several sources and by Mr Savelyev. The reports ruled out the idea that the first explosions had come from devices fired from outside, such as thermobaric grenades or projectiles. 417. In March 2008 Mr Savelyev published an extensive article in the Novaya Gazeta containing diagrams that indicated four different places and origins of the first explosions in the gymnasium: three from the expert reports ordered by the investigation and his own. He argued that the results of the three experts’ reports differed to such an extent that it was impossible to reconcile them. He further argued that the conclusions about the reasons and yield of the explosions contained in the most recent expert report were inconsistent with the witness statements and material evidence. Lastly, he drew attention to the fact that the remaining parts of his report concerning issues other than the first explosions had not been addressed by the investigation. F. Other relevant developments 1. Humanitarian relief 418. In accordance with Russian Government Order no. 1338-r of 11 September 2004, the victims of the terrorist act were awarded the following compensation: 100,000 Russian roubles (RUB) (approximately 2,700 euros (EUR) at that time) for each person who had been killed, RUB 50,000 for each person who had received serious and medium gravity injuries and RUB 25,000 for each person with minor injuries. People who had been among the hostages but escaped unharmed received RUB 15,000 each. In addition, the families received RUB 18,000 for each deceased person in order to cover funeral expenses. 419. On 6 and 15 September 2004 the North Ossetian President ordered (Order nos. 58-rpa and 62-rp) the payment of RUB 25,000 in funeral costs for each person who had died, RUB 100,000 for each deceased, RUB 50,000 to each person who had suffered serious and medium injuries and RUB 25,000 to each of the other hostages. 420. The terrorist act in Beslan triggered a major humanitarian response, resulting in collections of significant sums of money. 421. In accordance with North Ossetian Government Decree no. 240 of 17 November 2004, the North Ossetian Ministry of Labour and Social Development distributed the funds paid into their account devoted to humanitarian relief to the victims in the following manner: RUB 1,000,000 for each person who had died (approximately EUR 27,000 at that time); RUB 700,000 for each person who had received serious injuries; RUB 500,000 for each person with medium gravity injuries and RUB 350,000 for people who had suffered minor injuries or had been among the hostages. In addition, each child who had lost their parents received RUB 350,000 and other people who had been briefly detained but had not been among the hostages received RUB 75,000 each. Similar sums were allocated to injured servicemen of the FSB and Emercom and the families of those who had been killed. 422. In 2005 the memorial complex “City of Angels” was opened at the Beslan town cemetery. It comprised a single monument to the victims, individual graves of over 220 people and a monument to the FSB servicemen who had died on 3 September 2004. 423. In 2004 to 2008 there followed a number of other measures by the Russian and North Ossetian Governments, aimed at covering additional medical and social costs for the victims and financing other projects in Beslan. In November 2004 the Russian Government issued Decree No. 1507‑r providing for the construction of two new kindergartens and schools in Beslan, a multi‑functional medical centre, a social support centre for children and families and a number of housing projects aimed specifically at helping the victims’ families. Most of these projects, financed from the federal budget, were completed by 2010. 424. One sports boarding school opened in Beslan was constructed with the participation of Greece and was named after Mr Ivan Kanidi (also spelled Yannis Kannidis), a sports teacher from school no. 1. Mr Kanidi, a Greek and Russian national, was 74 years old at the time and refused to leave the school when asked to do so by the terrorists. After the explosions in the gymnasium on 3 September he got into a struggle with an armed fighter while trying to rescue children and was killed. In December 2004 he was posthumously awarded a Golden Palm Order by the Greek Prime Minister. 2. Other important public and media reactions 425. In September 2004 the entire North Ossetian Government were dismissed by Mr Dzasokhov. 426. On 13 September 2004 the President signed a decree aimed at setting up a more efficient system of anti-terrorist measures in the North Caucasus region. On the same day, at a joint meeting of the Government of Russia and the heads of Russia’s regions, he announced the following measures aimed at achieving greater national unity and better representation of the population’s concerns: cancellation of direct elections of the regional heads of the executive, who would be elected by the regional parliaments upon nomination by the Russian President; the setting up of a purely proportional system of parliamentary elections; establishment of a consultative body comprised of representatives of non-governmental organisations – a Civic Chamber (Общественная Палата); reinstatement of a special federal ministry charged with inter-ethnic relations; implementation of a plan for social and economic development of the North Caucasus region, and other steps. By the end of 2004 these administrative and legal measures had largely been implemented. 427. During and after the Beslan terrorist act, numerous journalists from all over the world covered the events. 428. In January 2005 the US network CBS aired a film about the hostage-taking in their programme 48 Hours. Shown in it, for the first time, was an extract filmed by the terrorists. The network alleged that the tape had been found by locals among rubble on the site and then obtained by their journalist. The tape had been made on 2 September 2004 inside the school and showed the fighters’ leader, “Polkovnik”, and about a dozen other terrorists in full military gear. It also showed the talks with Mr Aushev and the mothers with nursing babies being led out by him. In the final moments a baby girl (the youngest hostage aged six months) was handed to Mr Aushev by her mother who could not force herself to part with her two older children (aged three and ten; only the three-year-old boy survived). The extract ended with the school door being closed and locked by the terrorists filming from inside. The extract had been tagged by the operator “Fun Time‑2/09/2004”. 429. Several long reports were produced by the journalists who had been in Beslan during the siege and by those who had investigated the tragedy afterwards. Notably, over the years the Moscow-based Novaya Gazeta and Moskovskiy Komsomolets ran a series of reports dedicated to the hostage-taking and the investigation. Der Spiegel published a large report in its December 2004 issue and Esquire published a story entitled “The School” in March 2007. 430. A significant number of other television programmes, documentary films and books have covered the subject. The applicants in the present cases, in particular, have referred to the relevant chapter from Mr Rogozin’s book, “Public Enemy”. An Internet site http://pravdabeslana.ru was dedicated to the tragedy and subsequent proceedings. 3. Victims’ organisations 431. The relatives and victims of the terrorist act have joined efforts, striving primarily to obtain a comprehensive investigation into the events of 1 to 3 September 2004 and determine the level of the officials’ responsibility. 432. In February 2005 the victims set up a non-governmental organisation, Beslan Mothers (Materi Beslana). The organisation had about 200 members – former hostages and relatives of the victims. It was headed by Mrs Dudiyeva. 433. In November 2005 several hundred victims set up another organisation, The Voice of Beslan (Golos Beslana), chaired by Mrs Ella Kesayeva. In November 2005 the NGO issued a public statement labelling the criminal investigation inefficient and fraudulent. It called on anyone who could assist them with obtaining or gathering factual information about the events to do so. On 15 October 2009 the Pravoberezhny District Court of Vladikavkaz found that it had contained statements defined as “extremist” under the Suppression of Extremism Act (Federal Law no. 114-FZ of 25 July 2002) and put it on the federal list of extremist material, making it an offence to disseminate it by any means. 434. These organisations have played an important role in collecting and publishing material about the terrorist act in Beslan, advocating the rights of victims of terrorist acts in general, supporting victims in similar situations, and organising public gatherings and events. On two occasions – in September 2005 and in June 2011 – their representatives met with the Russian Presidents; they also regularly meet with local and federal officials and high-ranking international visitors. G. Expert reports submitted by the applicants after the admissibility decision 435. Following the admissibility decision of 9 June 2015, the applicants submitted two additional documents – independent expert reports ordered by them on the counter-terrorist and forensic aspects of the case. 1. Expert report on counter-terrorism 436. In September 2014 two UK anti-terrorist experts produced a report following a request from EHRAC, the applicants’ representatives. The experts were Mr Ralph Roche, a solicitor admitted in Northern Ireland, England and Wales, a Council of Europe and OSCE consultant on policing and human rights issues, co-author of the Council of Europe publication The European Convention on Human Rights and Policing (2013); and Mr George McCauley, former Detective Chief Superintendent and former head of the Special Operations Branch within the Police Service of Northern Ireland. The authors relied on open sources, including the communication report in the present case, and analysed the applicability of the relevant standards under Article 2 of the Convention to different aspects of the operation. Their main conclusions may be summarised as follows. (a) Existence of real and immediate threat known to the authorities 437. Looking at the previous attacks and the information available to the authorities immediately before the Beslan attack, the experts argued that “there was an extremely high level of threat of terrorist attack in the Southern Federal [Circuit] of Russia in late August to early September 2004, in particular in the border areas of [North Ossetia] and Ingushetia. This threat could be classified as real, as it had been verified by various orders, telexes and other documents issued by the Federal [Ministry of the Interior]. It could also be classified as immediate, as the information disseminated by the authorities pointed to an attack taking place on a specific day: 1 September”. The experts also pointed out that, in addition to the date, the information had referred to a specific area – near the border between North Ossetia and Ingushetia – and the potential target, as the attack had been planned to coincide with the Day of Knowledge. As Beslan was the largest town in Ossetia within 20 kilometres of the border with the Malgobek District, where terrorists had apparently been gathering, they concluded that “Beslan, and other towns in the vicinity, were clearly under a real and immediate threat of an attack on a school on 1 September”. Such a large-scale attack against a civilian target would have the potential for significant loss of life. The experts concluded that the level of detail available even from the relatively “sanitised versions” in the telexes and other communications indicated that there might have been a “covert human intelligence source” in the terrorist group, as well as technical coverage, such as the interception of communications. The event had therefore had a “high degree of foreseeability”. 438. As to the scale of the threat presented by the “well-organised, ruthless and determined terrorists who had ... actively targeted civilians”, the report reiterated the importance of the Day of Knowledge to Russian society and argued that an attack upon a school on that day was an act “bound to strike at the very heart of the nation” – something the terrorists had obviously strived to achieve. (b) Feasible preventive measures 439. The experts thus concluded that in view of the high foreseeability and magnitude of the threat, the feasible operational measures “must have been seen to take precedence over all other threats”. They divided the possible responses into three broad categories: (i) target denial, (ii) intervention and (iii) security. An example of target denial would involve postponing the opening of the school year in a defined area. Although unprecedented, this would have denied the terrorists the high-profile target sought. As to intervention, in the absence of any additional information, any comment would necessarily be speculative. It could be that the authorities did not conduct any preventive strike on the basis that to do so would have compromised the sources, or for other reasons – for example in view of the serious risk to the lives of the members of the security forces. Nevertheless, it was clear that “the risk would be likely to be greater in the event that the group succeeded in carrying out their intentions” and that the need to protect sources could not be used as a valid reason to put human life at serious risk. Lastly, as to security, the experts were of the opinion that the “essentially passive approach” adopted had been “seriously inadequate” in view of the circumstances. They noted that there had been no effective ownership or containment of the threat and that the staff of the local police had clearly been incapable of dealing with the security situation: “Given the degree of foreseeability, the recognised high threat by the [North Ossetian Ministry of the Interior] and the level of specificity in terms of the terrorists’ location, asserted target and likely area, there should have been a significant scaling up of resources in the identified areas. The purpose of this would have been to prevent or disrupt the terrorists’ plans and deny the target. Such actions would include large, highly visible deployments of forces to search and locate the terrorist group, to undertake Vehicle Check Points both along the main arterial routes and in depth at likely target towns. Similar specific deployments should have been implemented at schools to deny the target.” The experts concluded that while no security measures could serve as a guarantee against the attackers’ success, the presence of security personnel on the roads and at potential targets would have acted as a deterrent and could have impeded the attackers. They considered that the fact that a group of over thirty armed terrorists had been able to travel along the local roads to Beslan, having encountered only one police roadblock manned by a single officer “show[ed] the extent of failure of the authorities to act upon the information available to them”. 440. By means of comparison, the experts outlined the steps that would have been taken in the United Kingdom in the event of a known comparable threat. They considered that a command centre would have been established, with a clear and accountable chain of command, depending on role requirements. The centre would have comprised senior police officers coordinating with the relevant units of the British Army, specialist counter-terrorism units and the security services, as well as other public sector bodies such as fire and rescue and ambulance services. A dedicated crisis response committee would have been set up within the Government of the UK, in order to co-ordinate the actions of various bodies to ensure adequate resources and a media strategy. The potential targets would have been “hardened” by high-profile visible deployments of armed security personnel. (c) Use of lethal force and planning and control of the operation 441. According to the report, once the terrorists had reached the school and taken a large number of hostages, the authorities faced an extremely difficult scenario – one where significant loss of life, including that of children, was inevitable. The experts noted the group members’ intention to die, which had been apparent from the beginning, and to cause large-scale loss of life in the event of a storming. In such circumstances, the role of the authorities should be to seek to minimise the loss of life to the greatest extent possible. 442. The experts started by reiterating that the presence of only one unarmed police officer at the school at the time of the hostage-taking had delayed the response to the attack and permitted the terrorists to capture a large number of children and adults at the ceremony, as well as secure the building and deploy the IEDs with very little resistance. Without predicting the exact results of a heavier security presence at the ceremony, the experts argued for the possibility that “an adequately-assured police response would have repelled the terrorists for long enough to allow a significant number” of potential hostages to escape. 443. They then reflected on the formation, structure, record-keeping and auditing of the OH. The experts stressed that the pressure under which the members of the OH had worked could not be underestimated. In their words, “[a]ny amount of training and experience could not prepare someone fully for [a] crisis such as Beslan” which represented “one of the most difficult situations that any administration could face”. Furthermore, there could be no detailed or prescribed international standard for the control and planning of an operation of this sort; it seemed inevitable that the responses would be prepared quickly and with minimal formalities, in order to reflect the dynamics and seriousness of the situation. Relying on the witness statements, official documents and other data cited in the Court’s decision on admissibility, the report noted the following shortcomings of the OH functioning: failure to keep proper records of the OH’s composition, meetings and the main decisions taken; a lack of any apparent formal structure for information-sharing and decision-making, resulting in uncoordinated decisions being taken; a clear lack of structure of command and control for both strategic and important tactical decisions, such as the types and use of special weapons; and an overall failure of command and control. They stressed, in addition to the above, that the absence of any plan to start a rescue operation as late as 1 p.m. on 3 September, in view of the hostages’ intolerable conditions and the terrorists’ unpredictability – meaning that intervention could be required at any moment – had amounted to a failure to plan properly for a rescue operation. (d) The rescue operation 444. According to the experts, the situation faced by the Russian authorities, once the terrorists had reached their target, was a terrible one. The possibility of a peaceful outcome of the hostage-taking appeared minimal. The authorities were therefore required to make extraordinarily difficult and agonising decisions in a highly fluid situation and “there [was] no training or manual which [could] provide solutions to these dilemmas”. Furthermore, they acknowledged significant gaps in the information relating to the preparation of the rescue operation and many aspects in the way it was carried out, for example those relating to the origins of the first explosions. Having said that, the experts were of the opinion that since the situation had developed for over two full days before the rescue operation had started, it could not be characterised as entirely spontaneous, since the authorities had had time and resources to plan and practice it. 445. In view of the above, they highlighted a number of points that were, in their opinion, important in the evaluation of the rescue operation. Some of these points were relevant to the level of control exercised by the authorities over these developments: for example whether the operation was at all times under the control of the senior officers, or whether, in view of the hostages’ known intolerable conditions, they had prepared their response to a possible attempt by the hostages to leave the building at any moment. Other points focused more on the commanders’ tactical decisions directly relevant to the rescue operation that had taken place. 446. If the first explosions had been triggered by the detonation of an IED placed by the terrorists, and they had started to shoot at the fleeing hostages, the authorities had no option but to launch a rescue operation, which was in fact done. It ended with massive loss of life, and the accounts differ as to the use of flame-throwers and tank cannon fire. The experts stressed that these were military weapons destined to neutralise buildings with enemy combatants within. In their view, if these weapons had indeed been used at a time when hostages had still been within the building, it would have been unjustifiable. It could be justifiable if they had been used in the belief that there had been no civilians in the building and no military alternative to their use; however, in the absence of a definitive assessment of the facts such judgment had to be reserved. They noted, nevertheless, that the fact that by 5 p.m., or soon afterwards, the school building had seemed to be sufficiently under control for the security forces to hold a memorial service for the fallen officers made it unlikely that the terrorists had still been in the building at that time. 447. The report then commented that the fact that both the Alpha and Vympel special forces units had been deployed at a training exercise at the time when the rescue operation had commenced, had left the authorities without or with insufficient specialist intervention contingencies. The high number of losses sustained by the FSB special forces was a testament to the officers’ bravery, since they had probably realised that they had been likely to lose their lives by entering the school. Nevertheless, the experts were of the opinion that the same failures to plan and conduct the rescue operation had had a bearing on their fate as well as on the fate of the hostages. 448. Turning to the firefighters, the experts pointed out that in view of the known potential for fires to start from explosions, the fire brigades should have been deployed earlier. In their view, “the fact that very few fire engines were deployed and that they were without adequate supplies of water [was] a failing of foresight and planning ... The general requirement ... that rescue operations must be planned and controlled in such a manner as to minimise the risk to life, required a much greater deployment of fire brigade resources including multiple pumps and specialist fire vehicles...” Equally, the experts noted that although the medical evacuation and subsequent services had been well organised, as relatively few wounded had died in hospital, the medical staff had not been informed in any detail of the relevant information in order to plan an appropriate response. They commented that “it appear[ed] that the relative success of the medical evacuation [was] a result of the professionalism of the medical staff, and that they [had] not [been] included in the OH or even kept informed of relevant information (such as the number of hostages) so that they could deploy adequate resources”. (e) Other elements of the authorities’ response 449. The experts also examined three aspects of the operation challenged by the applicants: (i) dissemination of incorrect information regarding the number of hostages during the crisis, (ii) coordination between various authorities about the rescue plans and (iii) the negotiation strategy. 450. As to the number of hostages, the authors of the report were of the opinion that this aspect of communication could not have had any foreseeable negative impact on the terrorists’ behaviour or any other foreseeable consequences. With regard to the authorities’ co-ordination, the authors pointed out that effective coordination was a key element of command and control of counter-terrorist operations. They noted the obvious lack of coordination with the medics and the failure to preserve the scene, despite the presence of several cordons manned by different security agencies. Nevertheless, once the explosions and outbreak of shooting had occurred, the authorities had had no other option but to order the rescue operation; at this stage the pre-planned contingencies should have been implemented. 451. Lastly, concerning the negotiations, the experts were of the opinion that the terrorists “were not interested in negotiation and came to Beslan to inflict as much terror and death on the most vulnerable element of the civilian population as possible”. Their demands had been unrealistic and inflexible and they did not seem to have had any negotiation strategy; in addition, they seemed to have been prepared to die from the very beginning. Such a mental state “was not of rational people and so unpredictable as to render negotiations particularly difficult, if not impossible”. The authorities had ascertained the terrorists’ demands, made efforts to engage with them and put them in contact with the people they had demanded. The authorities’ approach to negotiation could not be criticised. 2. Expert report on medical (forensic) aspects of the operation 452. In October 2015 a forensic pathologist from Glasgow produced an expert report in response to a request from EHRAC to consider matters related to the recovery of bodies, post-mortem examinations and conclusions drawn as to the causes of death. Dr John Clark had worked in England and Scotland as a forensic pathologist for about thirty years. He was also involved in international work, having been the Chief Pathologist for the International Criminal Court for Former Yugoslavia (1999-2001) and having worked in Africa for the International Criminal Court, in Palestine/Jordan for the United Nations, and in other regions of the world. He also had the relevant academic and teaching background (having previously held a post at the University of Glasgow and being an examiner for national pathology qualifications and secretary of the professional association for UK forensic pathologists). In addition to the Statement of Facts (admissibility decision) in the present case, Dr Clark was provided with the transcripts of the representatives’ oral submissions before the Court, English translations of expert report no.1 (of 23 December 2005), five autopsy reports of the victims and transcripts of the testimonies given by the pathologists in the domestic proceedings. His conclusions may be summarised as follows. 453. On the overall organisation of the forensic service, Dr Clark noted that the task faced by the authorities had been extremely difficult. The mortuary in Vladikavkaz could not have possibly coped with the influx of over 300 bodies – as, in fact, no mortuary in the world could have. Alternative solutions should therefore have been considered, such as establishing a temporary mortuary elsewhere (a storage warehouse or cool facility – he recalled the use of an ice-rink in the Lockerby events) and bringing in refrigerator trucks or distribution to other mortuaries. In view of the potentially high number of expected casualties from the siege, some sort of system should have been planned in advance, with a suitable location, equipment and personnel identified and available at short notice. He noted that “the matter of body storage and preservation would have been uppermost in the minds of the pathologists, particularly with the warm weather”. A more orderly fashion of dealing with the bodies could have not only helped to avoid wrong identifications, but also alleviated the pressure on the forensic team. It would have permitted them to carry out a more in-depth examination of the bodies, where necessary, in order to establish the causes of death and identify and extract the objects that could be helpful to the investigation, such as bullets, fragments of IEDs and so forth. A clear explanation to the relatives as regards time expectations and the need for examination would have helped both them and those dealing with the bodies. 454. As to the recovery of the bodies from the school, the expert noted that the location and position of each person should have been recorded and the body numbered and preferably photographed. The description of the scene and the record of body recovery as reflected in the available documents appeared “totally inadequate for such an important incident and provides no basis for independent analysis, as any proper forensic report should allow”. 455. That most bodies had been subjected to external examinations only, as opposed to a full autopsy, would have been understandable if the principal purpose of the examination had been identification. Such an approach was justifiable, for example, in cases of major disaster casualties, or even at mass crime scenes where the evident injuries from gunfire or gross damage from an explosive device made the cause of death obvious. However, such an approach “would not reveal other unexpected findings, nor permit retrieval of bullets or shrapnel from inside the body”, although the evidential value of much of this type of material, for example for matching with a particular rifle, would have been questionable in the case of high-velocity ammunition. A lighter option could have included the use of imaging facilities, such as portable X-ray machines usually available at hospitals. This could have assisted in deciding whether a more in-depth examination had been required. In some cases, the expert noted, the conclusions about the cause of death had been inconsistent with the number of examination carried out, and should have been “couched in far more cautious terms”. With respect to those cases where the cause of death had not been established, mostly in view of extensive burns, Dr Clark was of the opinion that this could have been established relatively easily. “Questions of where and when they died, and whether it was from gunshot, explosion, fire, other trauma, or any combination, could and should have been established...” 456. The expert also commented on the people who had been burnt to an extent that the cause of death could not be established, and whether these burns could have been received ante or post mortem. He stressed that post mortem burns often masked those received while the person had been alive; that most people died in fires from smoke inhalation rather than from burns; but that smoke inhalation could only be proved by an internal examination including a carboxyhaemoglobin blood test and dissection of the body in order to examine to what extent the air passages were lined with soot. The expert stressed that “[i]nternal examination of a body to establish smoke inhalation can be done on even very charred and partly destroyed remains (which generally are remarkably well preserved inside), certainly on the type seen in the photographs and described in the post-mortem reports above. Thus, to say that no cause of death could be established because the body was burned is nonsense and dishonest”. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Regulation of anti-terrorist operations and the use of force 1. Suppression of Terrorism Act and Criminal Code 457. The Suppression of Terrorism Act of the Russian Federation of 1998 (Law no. 130-FZ – hereinafter “the Suppression of Terrorism Act”), in force until 1 January 2007, established basic principles in the area of the fight against terrorism, including those concerning coordination of the efforts of various law-enforcement and other State agencies. Section 2 of the Act provided, inter alia, that: (a) priority should be given to the interests of people endangered by a terrorist act; (b) the State should make minimal concessions to terrorists; (c) the State should keep secret, to the maximum extent possible, the technical methods of anti-terrorist operations and not disclose the identity of those involved in them. Section 3 of the Act defined terrorism as follows: “... violence or the threat of its use against physical persons or organisations, and also destruction of (or damage to) or the threat of destruction of (or damage to) property and other material objects which creates danger to people’s lives, causes significant loss of property or entails other socially dangerous consequences, perpetrated with the aim of violating public safety, intimidating the population or exerting pressure on State bodies to take decisions favourable to the terrorists or to satisfy their unlawful pecuniary and/or other interests; an attempt on the life of a State or public figure, committed with the aim of halting his or her State or other political activity or in revenge for such activity; or an attack on a representative of a foreign State or an official of an international organisation who is under international protection, or on the official premises or means of transport of persons under international protection, if this act is committed with the aim of provoking war or of straining international relations.” 458. Sections 10 and 11 of the Act governed the work of the operative headquarters (OH), the inter-agency body responsible for a given anti‑terrorist operation. The OH was created by a decision of the federal Government, and was headed by the head of the regional department of the FSB or the Ministry of the Interior, depending on the circumstances. The head of the OH could be replaced if the nature of the operation so required. The work of the OH was based on model regulations issued by the federal anti-terrorist commission. The OH could use the resources of other branches of the federal government in the anti-terrorist operation, including “weapons and [other] special-purpose hardware and means” (oruzhiye and spetsialniye sredstva). Section 13 of the Act defined the legal regime in the zone of an anti-terrorist operation (including identity checks and the right of security forces to enter premises and search people). 459. Section 14 permitted negotiation with terrorists if it could save lives. However, it was prohibited to examine any demands concerning the handing over to terrorists of any people, weapons or other dangerous objects, or any political demands. 460. Section 17 provided that damage caused by a terrorist act should be compensated by the authorities of the region where the attack had taken place. Section 21 provided that servicemen, experts and other people engaged in the suppression of terrorism were exempted from liability for damage caused to the life, health and property of terrorists, as well as to other legally protected interests, in the course of conducting an anti-terrorist operation, in accordance with and within the limits established by the legislation. 461. Article 205 of the Criminal Code of the Russian Federation of 1996 (as in force at the relevant time) imposed liability for terrorism, which was defined as “carrying out an explosion, arson or another act terrorising the population and creating risk to human life ... aimed at influencing decisions taken by the [public] authorities ...”. Article 206 established liability for hostage-taking, which was defined as “capturing or retaining a person as a hostage, committed with a view to compelling the State ... to act [in a particular manner] ...” 2. Field Manuals 462. The Army Field Manual valid at the relevant time (Боевой устав Сухопутных войск, enacted by the Commander-in-Chief of the Soviet Union on 9 April 1989) was published by the Ministry of Defence of the USSR in 1990. Page 9 of Volume II (battalion, company) provided that “the commanding officer’s resolve to defeat the enemy should be firm and accomplished without hesitation. Shame on the commander who, fearing responsibility, fails to act and does not involve all forces, measures and possibilities for achieving victory in battle”. Volume III (platoon, squad, tank) described combat in special (urban) conditions in the following terms: “117. ... Prior to the attack, APCs, tanks, guns and anti-tank guns by direct fire destroy the enemy in the building under attack and in the neighbouring buildings. At the same time servicemen of the platoon (squad) and flame-thrower operators fire at the windows, doors and firing slots and, using gaps in the walls, underground communications ... move towards the object. ... As the platoon (squad) approaches the object under attack, fire power from the tanks, guns and other fire power is directed at the upper stores and the attics. Acting baldly and bravely, the squad, under cover of all types of fire, aerosols (smoke), rush into the building and, moving from the bottom up, level after level through stairs and gaps in the floors, destroy the enemy by close-range fire from automatic weapons and grenades ... 118. To capture buildings that have been fortified or strongholds ... the squad can act as a part of an assault group. The assault group can include ... tanks, self‑propelled guns, mine launchers, anti-tank guns, grenade launchers, flame-throwers and other fire power...” 463. A new Army Field Manual was enacted on 24 February 2005. Volume III (platoon, squad, tank), point 24, states: “Every military serviceman should be aware of and comply with the norms of International Humanitarian Law: ... Breach of those rules does not only disgrace your Fatherland, but can lead to personal criminal responsibility in the instances provided for by law. In attaining the goals set, each commander within the limits of his responsibility must take into account the norms of [IHL] in decision-making and to ensure that his subordinates comply with them.” B. Amnesty Act 464. The Amnesty Act of 22 September 2006 was passed by the State Duma in respect of perpetrators of criminal offences committed during counter-terrorism operations within the territory of the Southern Federal Circuit. It applied to military servicemen, officers of the Ministry of the Interior, the penal system and other law-enforcement authorities, and covered the period from 15 December 1999 to 23 September 2006. It extended to criminal proceedings, whether completed or pending. III. RELEVANT INTERNATIONAL LAW AND PRACTICE A. Use of force by law-enforcement officials 465. The Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders (Havana, Cuba, 27 August to 7 September 1990), provide, inter alia, that “law-enforcement agencies shall adopt and implement rules and regulations on the use of force and firearms against people by law-enforcement officials”. 466. The Basic Principles also encourage law-enforcement agencies to develop “a range of means as broad as possible and equip law enforcement officials with various types of weapons and ammunition that would allow for a differentiated use of force and firearms. These should include the development of non-lethal incapacitating weapons for use in appropriate situations, with a view to increasingly restraining the application of means capable of causing people death or injury”. Whenever the lawful use of force and firearms is unavoidable, law-enforcement officials must, in particular, exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved, minimise damage and injury, and respect and preserve human life. They must also ensure that arbitrary or abusive use of force and firearms by law–enforcement officials is punished as a criminal offence under their law. The Basic Principles also stipulate that “exceptional circumstances such as internal political instability or any other public emergency may not be invoked to justify any departure from these basic principles”. Rule 11 states: “11. Rules and regulations on the use of firearms by law enforcement officials should include guidelines that: (a) Specify the circumstances under which law enforcement officials are authorized to carry firearms and prescribe the types of firearms and ammunition permitted; (b) Ensure that firearms are used only in appropriate circumstances and in a manner likely to decrease the risk of unnecessary harm; (c) Prohibit the use of those firearms and ammunition that cause unwarranted injury or present an unwarranted risk; (d) Regulate the control, storage and issuing of firearms, including procedures for ensuring that law enforcement officials are accountable for the firearms and ammunition issued to them; (e) Provide for warnings to be given, if appropriate, when firearms are to be discharged; (f) Provide for a system of reporting whenever law enforcement officials use firearms in the performance of their duty.” 467. On 11 July 2002 the Committee of Ministers of the Council of Europe adopted Guidelines on human rights and the fight against terrorism. They contain the following relevant provisions: “The Committee of Ministers, ... [b] Unequivocally condemning all acts, methods and practices of terrorism as criminal and unjustifiable, wherever and by whomever committed; [c] Recalling that a terrorist act can never be excused or justified by citing motives such as human rights and that the abuse of rights is never protected; [d] Recalling that it is not only possible, but also absolutely necessary, to fight terrorism while respecting human rights, the rule of law and, where applicable, international humanitarian law; ... adopts the following guidelines and invites member States to ensure that they are widely disseminated among all authorities responsible for the fight against terrorism. I. States’ obligation to protect everyone against terrorism States are under the obligation to take the measures needed to protect the fundamental rights of everyone within their jurisdiction against terrorist acts, especially the right to life. This positive obligation fully justifies States’ fight against terrorism in accordance with the present guidelines. II. Prohibition of arbitrariness All measures taken by States to fight terrorism must respect human rights and the principle of the rule of law, while excluding any form of arbitrariness, as well as any discriminatory or racist treatment, and must be subject to appropriate supervision. III. Lawfulness of anti-terrorist measures 1. All measures taken by States to combat terrorism must be lawful. 2. When a measure restricts human rights, restrictions must be defined as precisely as possible and be necessary and proportionate to the aim pursued. ... VI. Measures which interfere with privacy ... 2. Measures taken to fight terrorism must be planned and controlled by the authorities so as to minimise, to the greatest extent possible, recourse to lethal force and, within this framework, the use of arms by the security forces must be strictly proportionate to the aim of protecting persons against unlawful violence or to the necessity of carrying out a lawful arrest.” B. International humanitarian law 468. The Protocol Additional to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of International Armed Conflicts, concluded on 8 June 1977, 1125 UNTS 3 (Geneva Convention Protocol I) reads: “Article 51- Protection of the civilian population 1. The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. To give effect to this protection, the following rules, which are additional to other applicable rules of international law, shall be observed in all circumstances. ... 4. Indiscriminate attacks are prohibited. Indiscriminate attacks are: (a) those which are not directed at a specific military objective; (b) those which employ a method or means of combat which cannot be directed at a specific military objective; or (c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction. 5. Among others, the following types of attacks are to be considered as indiscriminate: ... (b) an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. ...” 469. The Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons, concluded on 10 October 1980, 1342 UNTS 171 (Protocol III to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (CCW)) reads: Article 1- Definitions “For the purpose of this Protocol: 1. ‘Incendiary weapon’ means any weapon or munition which is primarily designed to set fire to objects or to cause burn injury to persons through the action of flame, heat, or combination thereof, produced by a chemical reaction of a substance delivered on the target. (a) Incendiary weapons can take the form of, for example, flame throwers, fougasses, shells, rockets, grenades, mines, bombs and other containers of incendiary substances. (b) Incendiary weapons do not include: (i) Munitions which may have incidental incendiary effects, such as illuminants, tracers, smoke or signalling systems; (ii) Munitions designed to combine penetration, blast or fragmentation effects with an additional incendiary effect, such as armour-piercing projectiles, fragmentation shells, explosive bombs and similar combined-effects munitions in which the incendiary effect is not specifically designed to cause burn injury to persons, but to be used against military objectives, such as armoured vehicles, aircraft and installations or facilities. 2. ‘Concentration of civilians’ means any concentration of civilians, be it permanent or temporary, such as in inhabited parts of cities, or inhabited towns or villages, or as in camps or columns of refugees or evacuees, or groups of nomads. 3. ‘Military objective’ means, so far as objects are concerned, any object which by its nature, location, purpose or use makes an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage. 4. ‘Civilian objects’ are all objects which are not military objectives as defined in paragraph 3. 5. ‘Feasible precautions’ are those precautions which are practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations.” Article 2 - Protection of civilians and civilian objects “1. It is prohibited in all circumstances to make the civilian population as such, individual civilians or civilian objects the object of attack by incendiary weapons. 2. It is prohibited in all circumstances to make any military objective located within a concentration of civilians the object of attack by air-delivered incendiary weapons. 3. It is further prohibited to make any military objective located within a concentration of civilians the object of attack by means of incendiary weapons other than air-delivered incendiary weapons, except when such military objective is clearly separated from the concentration of civilians and all feasible precautions are taken with a view to limiting the incendiary effects to the military objective and to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects. ...” 470. The Russian Federation ratified Protocol I to the Geneva Convention and Protocol III to the CCW (cited above). 471. Volume I of the updated version of the International Committee of the Red Cross (ICRC) “Study on Customary International Humanitarian Law” (2005) contains Rule 11, which provides: “Indiscriminate attacks are prohibited”. Rule 12, which is entitled “Definition of Indiscriminate Attacks”, reproduces the definition contained in Article 51 § 4 of Protocol I to the Geneva Convention (cited above). Rule 84, which is entitled “The Protection of Civilians and Civilian Objects from the Effects of Incendiary Weapons”, reads: “If incendiary weapons are used, particular care must be taken to avoid, and in any event to minimize, incidental loss of civilian life, injury to civilians and damage to civilian objects.” The ICRC comment summary to each of those Rules indicates that “State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts”. 472. In May 2016 an independent organisation, Armament Research Services (ARES), published a report that had been ordered by the ICRC, as part of its work to foster a better understanding of the effects of explosive weapons when used in populated areas. The purpose of the report was to provide background information on the technical characteristics of explosive weapons and other factors relevant to their effects. It was meant to be a general reference document. The relevant part of the report reads: 1.1.4 Thermobaric and Fuel-Air Explosive Munitions “It is important to understand the difference between incendiary, fuel-air explosive (FAE), and thermobaric (also referred to as volumetric or enhanced blast) munitions, as well as the differences between these munition types and conventional high explosive munitions. The wide range of terminology applied to these weapon types, and the inaccurate ways such munitions are defined, has led to some confusion and hyperbole in reporting on the use of incendiary, thermobaric, and FAE weapons. Incendiary weapons, devices or bombs are designed to start fires or destroy sensitive equipment, using materials such as napalm, thermite, chlorine trifluoride, or white phosphorus. Whilst incendiary weapons are not explosives, and thus fall outside of the scope of this report, it is important to distinguish between incendiary munitions as opposed to thermobaric and FAE munitions. The former deflagrate, whilst the latter detonate. Incendiary weapons are primarily intended to provide sufficient heat and fuel to ignite, and possibly sustain, a fire at the target. The intention of a thermobaric or fuel-air-explosive weapon is to create a gross overpressure, combined with very high temperatures, such that the target suffers severe physical damage almost instantaneously. ... The ‘usual’ effects of an explosion, i.e. a blast wave, overpressure, negative pressure are of the same nature as those expected from a conventional high explosive, except that the duration of each effect is likely to be greater ...” THE LAW I. PRELIMINARY ISSUES 473. Several applicants informed the Court of changes or corrections to their names or situation as reflected in the list of applicants (see Appendix). 474. Two applicants asked for their deceased relatives who had been among the hostages to be included in the list of applicants. The son of Larisa Kudziyeva (applicant no. 110), Zaurbek Kudziyev (born in 1997), had died in 2011, and the father of Roman Bziyev (applicant no. 349), Sergey Bziyev (born in 1963), had died in 2005. Since no complaints were lodged by these people while they were alive, and in line with the admissibility decision in the present case which addressed the questions of standing, the Court rejects these requests (see Tagayeva and Others v. Russia (dec.), no. 26562/07, §§ 470-84, 9 June 2015). 475. Alikhan Dzusov (applicant no. 351) informed the Court that, contrary to the information indicated in the admissibility decision, he had not been among the hostages at the school. In view of this new information, the complaint lodged by Mr Alikhan Dzusov is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4. 476. The heirs of several applicants informed the Court of those applicants’ deaths and, as their close relatives, expressed the intention to pursue the application in their stead. The Government did not object to this. Having regard to the close family ties with the heirs and their legitimate interest in pursuing the application concerning fundamental human rights, the Court accepts that the deceased applicants’ heirs may pursue the applications in their stead. It will therefore continue to deal with the deceased applicants’ complaints, at the heirs’ request (see Appendix). II. ALLEGED VIOLATIONS OF ARTICLE 2 OF THE CONVENTION (ALL APPLICANTS) 477. All applicants alleged a breach of Article 2 of the Convention on account of two issues: the positive obligations to protect life and to investigate. Article 2 reads: “1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” A. Article 2 - positive obligation to prevent threat to life 1. The parties’ submissions 478. The applicants argued that the Russian authorities had had knowledge of a real and immediate threat to life but had failed to take the reasonable preventive measures available. They essentially reiterated the arguments outlined in the expert report on counter-terrorism (see paragraphs 436 et seq. above). In particular, the applicants argued that whilst the individuals targeted had not been named, they nonetheless comprised a sufficiently identifiable class of individuals: schoolchildren and their families and teachers, in reasonably identifiable schools. Educational facilities in Beslan, particularly school no. 1, as the largest in the town, should have been considered among the primary potential targets for the terrorists. In view of the particular vulnerability of the potential target group, the known danger presented by the hardened terrorists and their intent to cause harm to civilians, reasonable measures should have been taken in order to disrupt, deter or minimise the attack. However, no reasonable preventive measures had been taken. In particular, no prior counter-terrorist operation had been set up in advance, and there had been no apparent plans for contingencies to adequately address either the threat or immediate aftermath of a successful attack. It appeared that no other measures, except providing the regional and local authorities with detailed information about the intended attack, had been taken. None of the various preventive measures called for appeared to have been implemented, nor was there any evidence that there had been any oversight of the provision of such instructions. No official had been held accountable for those failures. In sum, the applicants argued that the measures had fallen deplorably short of an appropriate and adequate response to a threat of such magnitude and foreseeability, and had been insufficient to discharge the Government’s obligation to protect life under Article 2. 479. As a result of this lack of cooperative action, a large group of terrorists had been able to spend weeks training undisturbed in the Malgobek District and, on the Day of Knowledge, carry out the predicted and devastating terrorist attack, unchallenged. Security failures had permitted over thirty terrorists to travel to Beslan with their weapons in at least one truck, encountering only one checkpoint manned by a single officer. The usual traffic police officer posted in front of the school had been absent, apparently fulfilling other duties, the one police officer at the school had been unarmed and without any means of communication, there had been no reaction from the police during the first few minutes of the attack, and the number of firearms available to the police after the attack appeared to have been insufficient. The applicants pointed to the Government’s admission that the actions of the local police had contributed to the successful seizure of the school. They stressed that the acts of subordinate State agents acting in their official capacity were attributable to the States, and therefore amounted to a violation of the obligation to protect life under Article 2 of the Convention. 480. The Government referred to their previous observations summarised in the decision on admissibility (see Tagayeva and Others (dec.), cited above, § 513). They essentially relied on the “all-round forensic expert examination no. 1” of 23 December 2005 (see paragraphs 124 et seq. above). Although in November 2006 this document had been declared void by a domestic court, it was still relied upon in later proceedings due to its extensive factual scope. As cited by the Government, the report had found that the Ministry of the Interior, as well as other federal authorities, had taken all the necessary and adequate precautions in relation to the expected terrorist attack. At the same time, the actions of the local teams of the Ministry of the Interior in Ingushetia and in Beslan had been deficient, as a result of which the illegal armed group had been able to get together and train in Ingushetia, travel to Beslan across the administrative border with North Ossetia and then proceed to the hostage-taking without much opposition. These conclusions served as the basis for the criminal prosecution of the local police officers in Ingushetia and in Beslan. 2. The Court’s assessment 481. As an introduction to the examination of the complaints brought under Article 2 of the Convention, the Court confirms that it is acutely conscious of the difficulties faced by modern States in the fight against terrorism and the dangers of hindsight analysis (see Finogenov and Others v. Russia, nos. 18299/03 and 27311/03, §§ 212-13, ECHR 2011 (extracts)). The Russian authorities, in particular, have been confronted in the past few decades with the separatist movements in the North Caucasus – a major threat to national security and public safety. As the body tasked with supervision of the human rights obligations under the Convention, the Court would need to differentiate between the political choices made in the course of fighting terrorism, that remain by their nature outside of such supervision, and other, more operational aspects of the authorities’ actions that have a direct bearing on the protected rights. The absolute necessity test formulated in Article 2 is bound to be applied with different degrees of scrutiny, depending on whether and to what extent the authorities were in control of the situation and other relevant constraints inherent in operative decision‑making in this sensitive sphere (ibid., §§ 214-16). 482. Turning to the question of positive obligation, the Court reiterates that Article 2 of the Convention may imply a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual (see Osman v. the United Kingdom, 28 October 1998, § 115, Reports of Judgments and Decisions 1998-VIII). For the Court to find a violation of the positive obligation to protect life, it must be established that the authorities knew, or ought to have known at the time, of the existence of a real and immediate risk to the life of identified individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see Osman, cited above, § 116; Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 55, ECHR 2002‑II; Medova v. Russia, no. 25385/04, § 96, 15 January 2009; and Tsechoyev v. Russia, no. 39358/05, § 136, 15 March 2011). Such a positive obligation may apply not only to situations concerning the requirement of personal protection of one or more individuals identifiable in advance as the potential target of a lethal act, but also in cases raising the obligation to afford general protection to society (see Mastromatteo v. Italy [GC], no. 37703/97, § 69, ECHR 2002‑VIII; Maiorano and Others v. Italy, no. 28634/06, § 107, 15 December 2009; and Choreftakis and Choreftaki v. Greece, no. 46846/08, §§ 48-49, 17 January 2012). 483. In Finogenov and Others (cited above, § 173), the Court concluded that there was no evidence that the authorities had had any specific information about the hostage-taking being prepared and declared the complaint inadmissible. In contrast, in the present case, a number of elements suggest that at least some degree of information was available to the authorities beforehand. The Court should therefore first establish whether this information was sufficient for the competent authorities to conclude that there had been a real and immediate risk to the lives of identified individuals – the pupils, staff and visitors of school no. 1 in Beslan on the day in question; and, if so, whether they had taken measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. 484. With respect to the first question, the Court notes that in July and August 2004 a number of internal directives were issued by the Ministry of Interior and the FSB indicating a heightened terrorist threat in the North Caucasus. Geographically, the risk was located at the border between Ingushetia and North Ossetia, more specifically in the forested area of the Malgobek District in Ingushetia, where the movement and gathering of the illegal armed group had been recorded, and the adjoining areas in North Ossetia, including the Pravoberezhny District. The nature of the threat was described as a terrorist attack involving hostage-taking of a civilian object. Several documents issued after 25 August 2004 linked the attack with the opening of the academic year and the Day of Knowledge – 1 September, when every school holds a celebratory gathering of all pupils and staff and where many parents and visitors are present. The threat was considered imminent enough to put the local security forces on high alert. On the strength of the above warning, the North Ossetian and Ingushetian Ministries of the Interior ordered the local police to undertake preventive measures. These included provisions for tracking and checking suspicious looking people and vehicles, blocking secondary roads to avoid unsupervised passage between the two republics, warning the local authorities and the school administrators, taking special measures to protect educational facilities, establishing clear communication channels and preparing contingency plans in case of emergency (see paragraphs 16-18, 132, 291-292, 364-365, 401 above). 485. By August 2004 the Russian authorities were already familiar with the terrorists’ ruthless attacks on the civilian population, including its most vulnerable sectors. In the ten years preceding the events in Beslan, at least three major terrorist acts with a similar pattern were committed by the Chechen separatists. In June 1995 a group of terrorists under the command of Shamil Basayev captured over 1,500 people in a hospital in Budennovsk in the Stavropol Region; in January 1996 a group headed by Salman Raduyev seized, among other targets, a maternity ward with patients and staff in Kizlyar, Dagestan; and in October 2002 a group under the leadership of Movsar Barayev took hold of a theatre in Moscow with over 800 people during a popular youth show. Each time the terrorists used the hostages to amplify their message related to the situation in Chechnya, causing immense suffering to their victims. In each case, the attacks resulted in massive loss of life. 486. Against this background, the information known to the authorities as summarised above can be seen as confirming the existence of a real and immediate risk to life. The Court notes that the experts pointed out that, although the targeted individuals or groups had not been identified with precision, complementary information should have been available to the competent authorities from covert sources and intelligence operations (see paragraph 437 above). In any event, in the face of a threat of such magnitude, predictability and imminence, it could be reasonably expected that some preventive and protective measures would cover all educational facilities in the districts concerned and include a range of other security steps, in order to detect, deter and neutralise the terrorists as soon as possible and with minimal risk to life. 487. The Government’s position on this was that the Ministry of the Interior and other federal authorities had taken all the necessary and adequate precautions in relation to the expected terrorist attack. At the same time, the actions of the local teams of the Ministry of the Interior in Ingushetia and in Beslan had been deficient, as a result of which the illegal armed group had been able to get together and train in Ingushetia, travel to Beslan across the administrative border with North Ossetia and then proceed to the hostage-taking without much opposition. These conclusions served as the basis for criminal prosecution of the local police officers in Ingushetia and Beslan for professional negligence (see paragraphs 355, 363 et seq., 480 above). 488. The material made available to the Court does not indicate any attempts to address the threat in Ingushetia, where the terrorist group had gathered and trained for at least some days, with the knowledge of the authorities. In North Ossetia, certain preventive security measures were being taken in advance of the Day of Knowledge. The monitoring of vehicles through security checks had been organised on the roads crossing the administrative border between the two republics, although it was later acknowledged that the local police had insufficient resources to ensure a constant inspection that would be commensurate with the threat (see paragraphs 291, 334, 375 above). As a result of these gaps in security, at a relatively busy time in the morning, over thirty armed terrorists unimpededly covered a distance of at least 35 kilometres from the administrative border in Khurikau to Beslan. They also had no problems entering the district centre with a population of about 35,000 – the largest town in the vicinity – and arriving in the centre where the school no. 1 was located. Along this route, they encountered only one police officer at a checkpoint, whom they were able to disarm and whose vehicle they were able to take over, without raising any alarms (see paragraph 278). 489. As to the security at the school, police officer Fatima D. was the only person ensuring security of the gathering, which was attended by more than 1,000 people. She was not armed or equipped with any mobile means of communication, and attempted to use a fixed telephone at the school to inform the local police of the emergency. It appears that the security arrangement at the school was not heightened, but was reduced even in comparison to the usual standards (see paragraphs 21, 279, 284). It thus transpires that the local police were not fully apprised of a real and foreseeable threat of a major terrorist attack against an academic establishment within their zone of responsibility and did not take sufficient preventive or preparatory measures to reduce the inherent risks (see also paragraph 133 above). There is no information that any warning was given to the civilian authorities or the school administration. It is obvious that no warning whatsoever was issued to those who had attended the ceremony, and many parents had taken pre-school siblings with them, unaware of any dangers at what they had expected to be a festive family occasion. 490. In view of relatively specific advance information, the authorities had a sufficient degree of control over the situation at least in the days immediately preceding the Day of Knowledge. It could thus be reasonably expected that a coordinating structure would be tasked with centralised handling of the threat, preparing adequate responses, allocating resources and securing constant feedback with the field teams. The Court finds that despite a foreseeable threat to life there was no discernible effort to set up some sort of command centre that could carry out its evaluation and containment. It is unclear, for example, whether the insufficient resources for road security at local level were taken into account at regional level, since there is no information about the involvement in the preventive security measures of the North Ossetia operational management group tasked with counter-terrorist activities (see paragraph 312 above). 491. To conclude, the Court finds it established that at least several days in advance the authorities had sufficiently specific information about a planned terrorist attack in the areas in the vicinity of the Malgobek District in Ingushetia and targeting an educational facility on 1 September. The intelligence information likened the threat to major attacks undertaken in the past by the Chechen separatists, which had resulted in heavy casualties. A threat of this kind clearly indicated a real and immediate risk to the lives of the potential target population, including a vulnerable group of schoolchildren and their entourage who would be at the Day of Knowledge celebrations in the area. The authorities had a sufficient level of control over the situation and could be expected to undertake any measures within their powers that could reasonably be expected to avoid, or at least mitigate this risk. Although some measures were taken, in general the preventive measures in the present case could be characterised as inadequate. The terrorists were able to successfully gather, prepare, travel to and seize their target, without encountering any preventive security arrangements. No single sufficiently high-level structure was responsible for the handling of the situation, evaluating and allocating resources, creating a defence for the vulnerable target group and ensuring effective containment of the threat and communication with the field teams. 492. The Court reiterates that in the preparation of responses to unlawful and dangerous acts in highly volatile circumstances, competent law-enforcement services such as the police must be afforded a degree of discretion in taking operational decisions. Such decisions are almost always complicated, and the police, who have access to information and intelligence not available to the general public, will usually be in the best position to make them (see P.F. and E.F. v. the United Kingdom (dec.), no. 28326/09, § 41, 23 November 2010). This is especially so in respect of counter-terrorist activity, where the authorities often face organised and highly secretive networks, whose members are prepared to inflict maximum damage to civilians, even at the cost of their own lives. In the face of an urgent need to avert serious adverse consequences, whether the authorities choose to use a passive approach of ensuring security of the potential targets or more active intervention to disrupt the menace, is a question of tactical choice. However, such measures should be able, when judged reasonably, to prevent or minimise the known risk. With regard to the above arguments, the Court finds that in the case at issue the Russian authorities failed to take such measures. 493. In such circumstances, the Court finds that there has been a breach of the positive obligations under Article 2 of the Convention in respect of all applicants in the present case. B. Procedural obligation under Article 2 of the Convention 1. The parties’ submissions 494. The applicants reiterated their previous submissions that the investigation in this case had been neither thorough nor independent (see, for more detailed submissions, Tagayeva and Others (dec.), cited above, §§ 531-36). As a result, it had been unable to establish accurately the causes and circumstances of the deaths and to hold those responsible to account. They identified three major failures in the investigation. Firstly, the applicants deplored the fact that there had not been autopsies or the causes of death established for 116 of the victims, in breach of the relevant national rules and Convention standards. They relied in this respect on the forensic expert report (see paragraphs 452-456 above). They stressed, in particular, the reliance on external examinations only and the failure to identify fire as a cause of death. Secondly, they criticised the failure to compile a comprehensive site report, prior to the hasty intervention and clearing on 4 September. Thirdly, they considered that the investigation had failed to adequately investigate the use of lethal force, and in particular indiscriminate weapons, by the State agents. Furthermore, they contended that the investigation had not made any serious attempts to investigate the functioning of the OH; the decision not to prosecute State agents had been flawed in a number of ways; the investigation had failed to consider much of the key testimony, focusing instead on the statements of the officials and security personnel; many of the institutions and experts who had produced expert forensic reports had been connected with or employed by the agencies implicated in the events (the FSB, the Ministry of Interior and the Ministry of Defence). They also deplored the lack of victim access to some aspects of the investigation. 495. The Government referred to their previous observations summarised in the decision on admissibility (see Tagayeva and Others (dec.), cited above, §§ 520-30). There they argued that the investigation had been effective and in compliance with the Convention requirements. The investigative authorities had conducted a comprehensive inquiry into the terrorist attack. Testimonials had been collected from virtually every person who had been involved in the events, both private individuals and State officials. A large number of professional experts’ reports had been ordered and conducted in order to assess and reconstruct the most important events. The investigation had concluded that the deaths and injuries of the victims were not connected with any actions or omissions of the State agents, including use of firearms. The actions of the members of the OH, other State agents had been examined; it had been determined that no reasons to open a criminal investigation into their actions had existed. As to the access to the case file by the victims, the Government were of the opinion that all those persons who wanted to do so had acquainted themselves with the relevant documents. In their view, “the investigation ha[d] been comprehensive and lacked any deficiencies which could have influenced the completeness, clarity and adequacy of the establishment of the facts. In other words, the investigation [had] left little, if any, room for any speculation, depicting an alternative course of events”. 2. The Court’s assessment 496. The Court has on many occasions stated that Article 2 of the Convention contains a positive obligation of a procedural character: it requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by the authorities (see McCann and Others v. the United Kingdom, 27 September 1995, § 161, Series A no. 324 § 161, and Kaya v. Turkey, 19 February 1998, Reports 1998-I, § 105). The relevant principles applicable to the effective investigation have been summarised by the Court on many occasions (see, for example, Finogenov and Others, cited above, §§ 268-72, and for a more recent authoritative summary, Armani Da Silva v. the United Kingdom [GC], no. 5878/08, §§ 229-39, ECHR 2016). In the latest judgment cited, the requirements of an effective investigation into the use of lethal force by the State were summarised as follows: those responsible for carrying out the investigation must be independent from those implicated in the events; the investigation must be “adequate”; its conclusions must be based on thorough, objective and impartial analysis of all relevant elements; it must be sufficiently accessible to the victim’s family and open to public scrutiny; and it must be carried out promptly and with reasonable expedition. In order to be “adequate” the investigation must be capable of leading to a determination of whether the force used was or was not justified in the circumstances and of identifying and – if appropriate – punishing those responsible (ibid., §§ 240, 243). 497. The Court has also fully acknowledged the difficulties faced by the Russian Federation in combating illegal militant groups in the North Caucasus who have recourse to the most audacious terrorist methods. It therefore understands the need to set up an efficient system capable of counteracting them, and maintaining law and order in this much-suffering region. Nevertheless, the confines of a democratic society governed by the rule of law cannot allow this system to operate in conditions of guaranteed impunity for its agents. Within the limits of the obligations imposed by the Convention, it should be possible to ensure accountability of the anti-terrorist and security services without compromising the legitimate need to combat terrorism and maintain the necessary level of confidentiality (see Aslakhanova and Others v. Russia, nos. 2944/06, 8300/07, 50184/07, 332/08 and 42509/10, § 231, 18 December 2012). 498. In the present case, the authorities carried out a number of investigations and inquiries in order to reconstruct the events, seek out and bring to justice those responsible and ensure the victims’ access to justice. The proceedings included four separate sets of criminal investigations. Three of those – one against the only surviving terrorist, Mr Kulayev, and two against the district police officers for professional negligence – were completed. One investigation, no. 20/849, remains pending and concerns other aspects of the events, which are the subject of the applications brought before the Court. In addition, a large amount of work aimed at establishing the truth about the tragedy was carried out by the commissions at the North Ossetian Parliament and the Federal Assembly. 499. The Court acknowledges the important work carried out by the investigation. In particular, in the weeks and months following the terrorist act, hundreds of witnesses, victims and other people directly involved in the events were identified and questioned. The investigation certainly made an effort to grant victim status to hundreds of affected people and to collect and systematise the data related to the victims’ individual situations. The Court further acknowledges the amount of time and expertise that was devoted to controversial and complex issues such as the origins of the first explosions, the organisation of the fire services, medical work and other disputed aspects of the events. The applicants alleged that despite all the proceedings summarised above, the investigation into the events had not been “effective” for the purposes of the Convention as outlined above. The Court will examine several key aspects of the investigations on which the parties disagree. (a) Forensic evidence related to the cause of the victims’ deaths 500. One of the undisputed features of the investigation is the fact that the causes of death of the majority of victims were established on the basis of external examinations only; and that for about a third of the victims the cause of death was not established in view of extensive burns (see paragraphs 253, 341, 391, 396, 414 above). The victims complained about this omission, but their complaints were dismissed by the investigators and the supervising courts. No additional forensic examinations or autopsies were carried out once the identification of the victims had been completed (see paragraphs 255, 260, 263, 264, 266). 501. The Government confirmed, in their previous observations, that the cause of death had been established for 215 people; the exact cause of death of 116 people could not be established owing to extensive post mortem burns. The investigation concluded that the deaths and injuries of the victims were not connected with any actions or omissions on the part of State agents, including the use of firearms (see paragraph 254 above). 502. The Court has previously held that the authorities must take the reasonable steps available to them to secure the evidence concerning the incident, including an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of this standard (see Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 166, ECHR 2011, and Isayeva v. Russia, no. 57950/00, § 212, 24 February 2005, and the cases cited therein). 503. In the present case the cause of death of the majority of victims were established on the basis of external examinations of the bodies only. No additional examinations were carried out, for example, to locate, extract and match external objects such as metal fragments, shrapnel and bullets. The decision to limit the examination of the bodies to external only was taken by the investigation in the immediate aftermath of the rescue operation and, in the authorities’ opinion, was justified by the constraints on storage of the bodies and the need to identify the victims (see paragraph 414 above). 504. It is clear that at that time the authorities found themselves under high pressure. After the siege and its violent outcome, thousands of aggrieved relatives were desperate to receive news about their family members, including several hundred children. Naturally, identifying the victims and informing the relatives of their fate was seen at that time as the most pressing need. The Court is fully aware of the practical difficulties that authorities face when organising investigative steps in difficult circumstances involving active conflict situations. The Court has acknowledged the difficulties faced by the Russian Federation in maintaining law and order in the North Caucasus and the restrictions that may be placed on certain aspects of the investigation (see Aslakhanova and Others, cited above, § 231). 505. However, the Court does not lose sight of the fact that the circumstances preceding the storming strongly indicated a likelihood of mass casualties. It is therefore difficult to understand the apparent lack of preparation in terms of facilities for storing, examining and identifying the remains that were first laid out in the school courtyard and then taken to the Vladikavkaz town mortuary, which was insufficient in size to store them. This failure appears particularly serious in view of the hot weather that was prevalent in the region at the time of the events and which should have alerted the competent authorities to the need to ensure sufficient facilities, at least for some time, in order to ensure adequate conditions for the forensic work. 506. In any event, even accepting that the decision to limit the examination of the victims’ bodies to external inspections only was justified in the circumstances of the events, it is difficult to extend the same logic to the later stages of the criminal investigation. On several occasions the relatives of those who had lost their lives at the school requested that the bodies of the victims be exhumed and that additional enquiries be performed in order to reach more specific conclusions about the causes of their deaths, but no such requests were granted. 507. A third of the victims died of causes that could not be established with certainty, in view of extensive burns. Such a high proportion of unestablished deaths seems striking. The external expert report ordered by the applicants suggested that the difference between ante mortem and post mortem burns could have been resolved through relatively common tests (see paragraph 456 above). The Court will not dwell on the exact methods of analysis that could lead to more resolute conclusions; nor does it want to speculate whether the cause of death could be established with certainty in every individual case, knowing that many of the remains had been carbonised to the extent that DNA matching tests were necessary. The Court has already acknowledged the difficulties faced by the Russian authorities in this case. Nevertheless, it reiterates that as this was a situation of violent loss of life, once the identifications had been carried out, individual and more conclusive scrutiny about its causes should have been one of the crucial tasks of the investigation. Where the exact causes of deaths were not established with precision, the investigation failed to provide an objective ground for the analysis of the use of lethal force by the State agents. Many applicants continue to suffer from frustration and anguish caused by a lingering uncertainty about the circumstances of the deaths of their relatives, and these feelings are at the heart of this part of the complaint. The failure is all the more striking in respect of those applicants who later sought an examination of their relatives’ remains in order to dispel such uncertainty. 508. Furthermore, the Court notes that the location of the hostages’ bodies in the school was not marked or recorded with any precision (see the relevant passages of the site inspection report cited above in paragraphs 120 and 122). The location of only three of the bodies was noted with some precision, but even these findings were not marked in order to match them later. The absence of such basic information as the place of the victim’s death contributed to the ambiguity concerning the circumstances in which it had occurred. 509. To sum up, the Court finds that deficient forensic measures led to a situation where it was impossible to establish, with any degree of certainty, the causes of death of at least a third of all the victims, and the exact circumstances and location of the bodies of many more. An individualised description of their location and a more in-depth examination of the remains should have served as starting points for many of the important conclusions drawn in the course of the investigation. Failure to ensure this basis for subsequent analysis constitutes a major breach of the requirements of an effective investigation. (b) Securing and collecting the evidence 510. In their observations on the admissibility and merits, the Government stressed that the first investigative actions had taken place immediately after the security operations had ended. On 4 September 2004 a group of investigators, accompanied by experts, examined the site. Their work was recorded in a forty-three page document with more than 150 pages of photographs and video recordings (see paragraphs 119-122 above). This document was used as a basis for a number of subsequent expert examinations. The questioning of the eyewitnesses and officials involved in the operation started immediately in the aftermath of the events, to ensure that their recollections were as detailed as possible. 511. The Court reiterates that, as part of the requirements of an effective investigation, the authorities must take whatever reasonable steps they can to secure evidence concerning the incident, including, inter alia, forensic evidence (see case-law cited above). What steps are to be considered reasonable would depend on the circumstances of the case, but in the context of any violent crime examination of the crime scene and preservation of forensic evidence would constitute one of the basic requirements of an effective investigation. 512. In the present case the site of the incident was the entire school building. For over fifty hours a group of over thirty heavily armed terrorists held over 1,000 people captive; they installed IEDs in the building, turned it into an improvised stronghold, stayed in various premises and used them for communication, the storage of arms and ammunition and for detaining the hostages. Following explosions, fire and an armed intervention, over 330 people lost their lives and hundreds more were wounded. It thus appears normal that once the security and rescue parts of the operation were over, a thorough and potentially lengthy operation was to be started in order to examine, record, collect and preserve any relevant material traces of the various events that had occurred. Preserving the integrity of the site as much as possible until the end of this immense forensic operation should have been seen as one of the first and key tasks of the investigation. 513. The investigation into the hostage-taking was opened on 1 September, and over sixty investigators were assigned to it the following day (see paragraphs 111-112). By 3 and 4 September a large group of professionals from the prosecutor’s offices in the region were ready to intervene in order to secure, collect and record the relevant evidence. This forward planning permitted the site examination to be carried out, which lasted almost an entire day on 4 September. The value of this document is apparent by its use in the subsequent procedures, along with collected photographic and video material, as one of the basic documents for reconstructing the events and drawing important conclusions. For instance, the site examination figured among the evidence relied upon by the experts who had prepared several reports on the explosives and the fire expert’s report within criminal investigation no. 20/849, and it also figured in the parliamentary reports. 514. The Court stresses that the examination of the site carried out on 4 September represented the sole opportunity to draw a relatively comprehensive account of the scene before it was irreparably altered, leading to the loss of much important evidence, such as impact traces, parts of IEDs, arms and ammunition, personal belongings of the hostages and terrorists and other relevant items. After the intervention of heavy machinery and the access of third parties once the police and army cordons had been lifted by the end of 4 September, the integrity of the site could no longer be ensured. 515. It therefore appears that the time accorded to the drawing up of the report and carrying out other forensic work was insufficient. The exercise was done in parallel with the removal of the bodies and did not reflect their location or otherwise identify them in any meaningful manner. Some of the descriptions pertinent to the case were so brief that they appeared almost redundant. The description of many important pieces of evidence, such as parts of weapons and ammunition, did not indicate where in the building they had been found (see paragraphs 120-122 above). No samples (swabs or scrapes) were collected in order to find traces of explosives in the impact zones, which later proved to be an impediment to identifying the types of explosives used. The quality of the forensic work at the site is further undermined by the claims made by the victims’ relatives that they had found many potentially important pieces of evidence and the hostages’ personal belongings at the town rubbish dump; it was also asserted that the one video tape filmed by the terrorists inside the building during Mr Aushev’s visit on 2 September and depicting them and their leader had been found by local residents among the rubble removed from the site (see paragraphs 101-102, 428 above). The same problems were criticised in the North Ossetian parliamentary commission’s report (see paragraph 382 above). 516. The Court concludes that the investigation failed to properly secure, collect and record evidence at the school building on 4 September. This resulted in a report being drawn up that was incomplete in many important respects. The simultaneous intervention of machinery to clear the site and unrestricted access by the end of the same day aggravated the problem, because the integrity of the site could no longer be ensured, undermining the further collection of evidence from the scene. The Court considers that this caused irreparable harm to the investigation’s ability to carry out a thorough, objective and impartial analysis of all relevant elements (see paragraph 496 above), since the document, deficient in many respects, served as one of the key pieces of evidence for the conclusions reached thereafter. The failure to ensure that relevant material evidence was adequately secured, collected and recorded constituted a serious breach of the requirements of an effective investigation in the present case. (c) Investigation into the State agents’ use of lethal force 517. The applicants insisted that the investigation had failed to adequately investigate the use of lethal force, particularly indiscriminate weapons, by the State agents. 518. The Government denied this allegation. Unlike the above-cited Finogenov and Others case, the Government were of the opinion that the domestic investigation had thoroughly examined the question of whether there was a connection between the use of force by the State agents and the deaths and injuries among the hostages. The conclusion of the investigation was clear in that such a connection was absent: the deaths of the victims had been caused by the terrorists’ actions. Again, in contrast to the Finogenov and Others case, the Government referred to the specific inquiries into the actions of the armed forces, security servicemen and other State personnel, which had ultimately resulted in the decision not to prosecute anyone. They stressed that the investigation had been independent and that there was no reason to suspect that the investigators, or any of the experts who had prepared the reports, had been subordinate to the bodies involved in the security operation in Beslan. They referred to the conclusions and the composition of the board of experts which had prepared expert report no. 1 of 23 December 2005 (see paragraphs 124 et seq.). Overall, in their view, “the investigation [had been] comprehensive and lacked any deficiencies which could have influenced the completeness, clarity and adequacy of the establishment of the facts. In other words, the investigation [had] left little, if any, room for any speculation, depicting an alternative course of events”. 519. The Court has stated before that where an investigation concerns a criminal act by third parties, such as a terrorist act, and the authorities’ response involved the use of lethal force, it should take adequate and necessary steps in order to examine the authorities’ own actions from the standpoint of the guarantees of Article 2 of the Convention (see Finogenov and Others, cited above, §§ 274 and 280). 520. In the present case, a number of important steps were taken by the investigation in order to elucidate the questions of the State’s involvement. Within the scope of criminal case no. 20/849 opened on 1 September 2004, a number of questions were asked about the actions of the State agents. Arising from this investigation, separate criminal proceedings resulted in charges being brought against police officers from the Malgobek District and the Pravoberezhny District for professional negligence related to the prevention of the terrorist acts. Although criminal investigation no. 20/849 remained unfinished, the decisions not to charge any other officials with crimes were taken within its framework. Acknowledging the amount of work carried out by the investigators in this regard as well, the Court will focus below on several aspects pertaining to the effectiveness of this part of the proceedings. 521. First of all, the investigation established with certainty that the State agents had used an extensive range of lethal weapons, including automatic firearms, explosives and thermobaric weapons. The documents showed that during the operation the army and internal troops personnel had used at least 7,000 cartridges for automatic and machine guns, over 2,000 tracer bullets, ten disposable anti-tank rocket launchers, 18 anti-tank charges for reloadable grenade launchers, eight high-fragmentation warheads for a tank cannon and ninety smoke grenades (see the “joint record” of 10 September 2004 and other relevant evidence cited in paragraph 219). In addition, an unclear amount of powerful thermobaric flame-throwers (RPO–A Shmel) were used (see two separate expert reports that listed twelve RPO–A spent tubes with individual batch and serial numbers, paragraph 209; see also information about the use of five devices with different batch numbers in paragraph 210). Other documents referred, in addition, to 450 armour-piercing incendiary cartridges for large-calibre machine guns and ten hand grenades (see separate act on the use of weapons, paragraph 206 above). The explosions expert report dating from September 2007 added to this already impressive list an unspecified number of other modifications of anti-tank and grenade launchers, as well as propelled attack grenades with a thermobaric warhead (RShG–1) and light infantry flame–throwers with a thermobaric charge (LPO–97), the use of which was marked as “probable”, even though over forty spent charges had been found at the site (see paragraphs 211 and 226 above). The parties disagreed whether the investigation had been able to establish the circumstances of use of these weapons and ammunition, particularly weapons that could be characterised as indiscriminate, and to clarify the possible causal link between the use of lethal force and the casualties among the hostages. 522. The Court notes that no single and concerted effort was made by the investigation to make an inventory of the weapons and ammunition used by the State agents, particularly explosive and thermobaric weapons capable of inflicting damage upon anyone within their impact radius. Information about the quantity of the weapons used and the units that had used them is scattered throughout different proceedings and disjointed documents. The “joint record” of 10 September 2004, although cited in several subsequent documents, such as the fire expert’s report of 22 December 2005, does not take into account one of the most powerful weapons used – the Shmel flame-throwers. Nor does it appear to tally with another record, of 9 September, which named different types of charges and explosives used. The comprehensive forensic report on explosions completed in September 2007 failed to indicate the quantity of the charges used, and was not certain about the use of light infantry flame-throwers with a thermobaric charge, despite over forty spent capsules specific to that weapon being found. Neither the quantity nor provenance of the Shmel flame–throwers used was listed in any single document (see paragraphs 210, 211 and 219 above). The same is true for the use of other explosive and armour–piercing weapons, including various modifications of grenade launchers (reloadable and dispensable), numerous and inconsistent references to which are scattered throughout a multitude of documents. This failure is difficult to explain in view of the availability of extensive information concerning the batch and individual numbers recorded for many such weapons (see paragraphs 209, 214-216 above). The absence of a complete record of the weapons and ammunition used by the State agents effectively precluded the investigation from undertaking a meaningful evaluation of the adequacy and proportionality aspects of the use of force. 523. As to the circumstances of their use, much witness testimony about the use of a tank gun, grenade and rocket launchers and flame–throwers was obtained during separate criminal proceedings brought against the surviving terrorist, Mr Kulayev (see paragraphs 293, 294, 298, 300, 303 above). The Court remarks that, on the one hand, these witnesses provided accounts of the use of powerful indiscriminate weapons soon after the first explosions, while the military and security officials denied their use prior to 6 p.m. when, allegedly, no hostages remained in the building (see paragraphs 207, 220, 306 and 323 above). In order to resolve that contradiction, the investigators should have first established with some precision the types and amount of weapons used, as well as the time, targets and people who had used them and then matched this information with the objective data about the casualties and impact traces. As the Court has already noted, the absence of an inventory of the weapons used virtually precluded any progress in this respect. For example, the fire expert report confirmed that indiscriminate Shmel flame–throwers had been used upon the building, but not upon the hostages, and their use could not have harmed them (see paragraph 220 above). The investigation accepted these unclear conclusions. 524. To sum up, in respect of the use of indiscriminate weapons capable of putting at risk the lives of anyone within their impact radius, namely grenade and rocket launchers, flame–throwers and the tank gun, the Court finds that there existed a credible body of evidence pointing at their use by the State agents in the first hours of the storming. In the Court’s view, this evidence was not fully assessed by the investigation. The lack of objective and impartial information about the use of such weapons constituted a major failure by the investigation to clarify this key aspect of the events and to create a ground for drawing conclusions about the authorities’ actions in general and individual responsibility. Other failures included the absence of detailed information about the location of the hostages’ bodies, failure to establish the causes of death of at least one third of the victims and gaps in collecting and securing other relevant forensic evidence, as described above. In view of these considerations, the Court cannot accept as tenable the investigation’s conclusion that no one among the hostages was injured or killed by the lethal force used by the State agents (see, for example, paragraph 233 above). 525. As in any security operation resulting in casualties, strict accountability for the use of lethal force by State agents is imperative. The investigation carried out into the events must be capable of laying down grounds for a thorough, objective and impartial analysis of all relevant elements. It was therefore vital for the investigation to make every effort to reach clear and univocal findings about the use of weapons by the State agents. In the absence of this background data, any conclusions about criminal responsibility are without any objective basis and risk appearing arbitrary. 526. The material of criminal case no. 20/849 contains several decisions issued by the investigation in which it was decided that the State officials had not committed any criminal acts in the course of the hostage crisis in their fields of responsibility. The first decision was adopted by a military prosecutor in Vladikavkaz on 3 December 2004 (see paragraphs 229 et seq. above) and concerned the unnamed personnel of the Ministry of Defence and the Ministry of the Interior. This document preceded most of the crucial investigative steps, including expert report no.1 and the expert reports on fire, ballistics and explosions. It contained hardly any details about the weapons used and their potential or actual impact, and failed to match that with the recorded injuries and causes of death. Even though this document was later set aside, this line of inquiry did not seem to have progressed over the years when the investigation remained pending. Similar conclusions were reached on 20 April 2006 in respect of the head and members of the OH who had led the rescue operation (see paragraph 239 above). The Court finds unconvincing the assumption that the use of a massive amount of indiscriminate lethal force by the servicemen resulted in the terrorists’ elimination, but at the same time caused no harm to any of the hostages in the same building, which was retained throughout the investigation without much critical analysis (see paragraph 254 above). 527. For the reasons outlined above, the Court finds that the investigation failed to adequately examine the use of lethal force by the State agents during the operation on 3 September 2004. Amongst other things, the investigators did not establish basic facts about the use of indiscriminate weapons that were crucial for the assessment of the causal link between their use and the casualties, and thus did not fully assess the evidence suggesting the use of indiscriminate weapons at the time when the terrorists and hostages had been intermingled (see paragraphs 524 above). Coupled with incomplete forensic evidence on the causes of death and injuries, deficiencies in the steps to secure and collect the relevant evidence from the site, any conclusions reached about the criminal responsibility of the State agents in this respect are without objective grounds and are thus inadequate. (d) Public scrutiny 528. The victims argued that they had been unable to obtain access to many crucial documents in investigation file no. 20/849, and that their complaints to the courts in this respect had been unjustifiably dismissed (see paragraphs 263 et seq.). They referred to their numerous and futile attempts to obtain copies of the decisions to appoint experts and the results of the most important expert conclusions, decisions not to prosecute certain officials, witness statements and other documents. 529. The Government were of the opinion that all those who had wanted to do so had acquainted themselves with the relevant documents. They also stressed that some of the victims had waived their right to access the documents in the case file, as evidenced by written statements. 530. The Court has previously held that the degree of public scrutiny required may well vary from case to case. In all cases, however, the victim’s next-of-kin must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see Ahmet Özkan and Others v. Turkey, no. 21689/93, §§ 311‑14, 6 April 2004; Isayeva, cited above, §§ 211‑14 and the cases cited therein). 531. The Court notes that one of the repeated demands of the victims in the criminal proceedings in file no. 20/849 was to ensure them access to some of the documents collected by the investigation. On several occasions the victims demanded full access to the expert reports on ballistics, arms and ammunition and expert report no. 16/1 prepared on 14 September 2007 addressing the entirety of the explosions that had occurred in the gymnasium on 3 September 2004. Such requests were rejected by the investigation and the supervising courts. In some cases, the courts referred to the confidentiality of the documents, while in others they referred to the need to preserve the interests of the investigation (see paragraphs 224, 263, 265, 266 above). Similar requests lodged by the victims in the course of the criminal trial of Mr Kulayev were equally dismissed by the trial courts (see paragraphs 343 et seq. above). 532. The documents to which the applicants were trying to gain access concerned the causes of death and injuries of the hostages and information about the lethal force used by the State agents during the storming, as well the origins and nature of the explosions which had occurred in the gymnasium. These issues went to the very heart of the victims’ concerns and their inability to obtain adequate answers in the domestic proceedings drove them to complain before the Court. 533. It must be borne in mind that in addition to “principal” investigation file no. 20/849, there were other sources of information which put into question some of its findings. The Court has already remarked that a number of witness statements obtained during the trial of Mr Kulayev pointed to the use of indiscriminate weapons prior to 6 p.m. on 3 September 2004, contrary to the investigation’s assertion. Some of the crucial conclusions of the investigation about the use of indiscriminate weapons, the origins of the first explosions and the deficiencies of the forensic findings were challenged in the reports produced by the North Ossetian parliamentary commission and a member of the Duma commission Mr Savelyev, himself a military expert. The authors of these reports not only examined the documents and evidence collected by the investigation, but had the benefit of first-hand knowledge including site examinations and witness testimony. They also devoted a considerable amount of time and their own expert knowledge to analysing all the sources available. 534. The most important conclusions that contradicted the findings reached within the framework of investigation no. 20/849 may be summarised as follows: the first explosion had not been caused by an IED, but had most probably originated from outside; the security services had used indiscriminate weapons during the first few hours of the rescue operation; the causes of the casualties and fatalities had not been established correctly for a large proportion of the victims (see paragraph 353 above for the applicants’ position; see conclusions made by the North Ossetian parliamentary commission and Mr Savelyev in paragraphs 379-382, 386, 391, 396, 406, 408, 410, 411, 413 above). The investigators dealing with file no. 20/849 were aware of the potential importance of at least some of these findings. A complex and extensive report (no. 16/1) was ordered in October 2006 with the specific task of probing some of Mr Savelyev’s assertions concerning the origins of the first explosions. It was delivered in January 2007 and contained an all-encompassing overview of the relevant evidence available by that time, completed with analytical and research material that served to disprove his propositions. The experts confirmed the investigation’s initial conclusion about the origins of the first explosions lying in the IEDs placed by the terrorists. They also excluded the possibility that the projectiles launched from the locations suggested by Mr Savelyev could have led to the consequences he had implied (see paragraph 226 above). An additional report, produced in October 2007, also examined the available evidence and confirmed the above results (see paragraph 227). As the applicants claimed, these two reports were not available to them until the exchange of observations between the parties in the proceedings before the Court in 2012. 535. As noted above, by the time these reports were written, the decisions answering in the negative the question concerning individual criminal responsibility of the servicemen and OH officials had already been adopted (see paragraphs 229 et seq., and 239 above). The reports did not upset the previously reached conclusions about the terrorists’ responsibility for all the deaths and injuries caused. The value of these two reports, therefore, lay precisely in dispelling public doubts about the circumstances of the deaths and injuries suffered by the hostages on 3 September. These reports should have secured the investigation’s conclusions and served to persuade the victims of its effectiveness on this key question. The victims who had lost their family members or received injuries in the disputed circumstances had a legitimate right to be fully acquainted with these important documents and to be able to participate effectively in challenging their results. In such circumstances, it appears unjustifiable that these documents were not made available to the victims in the context of the criminal investigation. The victims’ inability to acquaint themselves with these findings and challenge their results seriously affected their legitimate rights in the criminal proceedings, on a question that was of key importance to them. 536. Furthermore, the Court has previously held in cases concerning Russia that where decisions to terminate proceedings in situations involving civilian casualties are taken by the military prosecutor’s office on the basis of expert reports prepared by army officers, this may raise serious doubts about the independence of the investigation from those implicated in the events at issue (see Abuyeva and Others v. Russia, no. 27065/05, § 212, 2 December 2010, with further references). While it is certainly for the competent domestic authorities to determine issues of the guilt and/or innocence of the individuals involved and the applicable provisions of national legislation, the Court has held that the circumstances of extremely serious cases involving numerous casualties sustained in the course of anti-terrorist operations should be assessed by the courts, which are the ultimate guardians of the laws laid down to protect people’s lives. In the Abuyeva and Others case (cited above), it found the approach of the military prosecutor’s office clearly inadequate to fulfil the role of maintaining public confidence in the authorities’ adherence to the rule of law and preventing any appearance of collusion in, or tolerance of, unlawful acts (ibid., with further references). 537. In the present case, the investigation likewise relied on a number of reports, some of them prepared by experts working at the army or the FSB structures. Certain conclusions are difficult to reconcile, for example where the reports indicated the different places and yield of the first explosions (see paragraphs 139, 221, 223 and 226 above). This incoherence on one of the most important aspects of the events makes the investigation’s unconditional reliance on them questionable. Where allegations are made against security and military servicemen, the element of public scrutiny plays a special role, and if the investigation bases its conclusions on confidential documents prepared by the staff of the same agencies that could be held liable, it risks undermining public confidence in the independence and effectiveness of the investigation and gives the appearance of collusion in, or tolerance of, unlawful acts. 538. In view of the above, the Court concludes that the public scrutiny aspect of the investigation was breached by the victims’ restricted access to the key expert reports, notably those concerning the origin of the first explosions. (e) Conclusion on the investigation 539. The Court concludes that there has been a breach of Article 2 of the Convention since the investigation was not capable of leading to a determination of whether the force used in the case was or was not justified in the circumstances, and, therefore, was not “effective” (see Hugh Jordan v. the United Kingdom, no. 24746/94, § 107, 4 May 2001). It also notes the failure to ensure a sufficient degree of public scrutiny by restricting the victims’ access to some of the key expert reports. The Court further remarks that other elements of the investigation have been put into question by the applicants: the multitude of co-existing findings relating to the causes of the first explosions; the effectiveness of the investigations into the actions of the OH, rescue and medical services; the issues related to the appointment and independence of the experts; and the restricted access to other documents in the case file. However, the Court does not need to examine these aspects of the proceedings separately, in view of the above conclusions. III. ALLEGED VIOLATIONS OF ARTICLE 2 OF THE CONVENTION (applications nos. 26562/07, 49380/08, 21294/11, 37096/11 and 14755/08) A. Planning and control of the operation 1. The parties’ submissions (a) The applicants 540. The first group of applicants pointed out the following problems with the planning and control of the operation which had involved the use of lethal force. Firstly, they criticised the functioning of the OH, saying that there had been serious delays in its formal establishment, its command and decision-making. They referred to the counter-terrorist expert report which had formulated some very critical conclusions about a lack of structure and unclear key decision-making process (see paragraphs 436 et seq. above). They further highlighted the failure to secure the perimeter of the operation, confirm the number of hostages and communicate it early enough to the relevant services, make senior people available for negotiation, coordinate or plan a rescue operation and ensure some sort of recording of the orders, decisions, appointments and other relevant information for future evaluation. The OH had also failed in the planning of the rescue operation in its assessment of appropriate weapons to be chosen and used. They condemned the fact that, despite the likelihood of a high number of casualties and the difficulties presented by the weather, no one appeared to have considered a plan for a mortuary, refrigeration or other storage provisions for the bodies, or for autopsy tables with sufficient specialists. With respect to the provision of fire services, the applicants believed that there appeared to have been no clear lines of command, communication or coordination between the OH, Emercom and the personnel directly responsible for fire services. As specific examples of the failures to plan accordingly, the applicants pointed to the following: despite having had more than two days to prepare and the high probability of fire resulting from explosions, no fire engines had been deployed on standby in the vicinity of the school; the firefighters had not been provided with protective bulletproof vests or military helmets, nor had any other measures provided for by the relevant manuals applicable to the extinguishing of fires in dangerous conditions been implemented, particularly at sites containing explosive materials; the positioning and availability of water sources had not been determined in advance; owing to the same lack of coordination the Ministry of the Interior had not undertaken efforts to clear the route to the school, which had remained blocked by cars and people on 3 September, obstructing and delaying the emergency access of fire engines to the site; there had been a shortage of water and delays in laying down water hoses because of a failure to attach connecting parts; and the number of fire engines deployed had been seriously inadequate. In any event, the firefighters had been deployed too late to save anyone in the gymnasium. (b) The Government 541. The Government referred to their previous observations summarised in the decision on admissibility (see Tagayeva and Others (dec.), cited above, §§ 538-62). In those submissions, they were of the opinion that the actions of the authorities had been fully consistent with the requirements of Article 2 of the Convention. The special units of the FSB, who had been in charge of the operation potentially involving lethal force, were the most professional teams of that type in the country. Their experience in dealing with terrorists and hostage-taking crises was unparalleled. During the crisis and before the storming, the officers of the Alpha and Vympel units had conducted training exercises in order to work through all possible scenarios for taking over the school building, including practical training at a similar school nearby. 542. The questions put by the Court had been at the centre of the domestic investigation, which had fully elucidated them. The appointment and the process of decision-making at the OH had been examined in detail and the conclusions of the investigation as to the absence of criminal liability of the OH’s members had been well-founded. All members of the OH had been questioned and in the investigation particular attention had been drawn to the question of whether the actions of the OH members had been lawful. 543. More specifically, the Government explained that the first OH had been set up on 1 September 2004, as soon as the news of the hostage-taking had been communicated to the authorities. In accordance with the North Ossetia anti-terrorist plan of 30 July 2004, this OH had been headed by its President, Mr Dzasokhov. At 2.45 p.m. on 2 September 2004, in accordance with a decree issued by the Russian Government, a new OH had been appointed, under the command of the head of the North Ossetia FSB, General Andreyev. His deputies had been Mr Dzantiyev and General Tikhonov and its members had included Mr Dzasokhov, General Koryakov, Mr Sobolev, General Vnukov and Lieutenant-Colonel Tsyban; Mr Soplevenko, the North Ossetian Minister of Health; Mrs Levitskaya, the North Ossetian Minister of Education; Mr Dzgoyev, the North Ossetian Minister of Emercom; Mr Goncharov, the director of the Zashchita Centre; and Mr Vasilyev, deputy head of the information programmes department of Rossiya. In view of the speed at which the situation had been evolving, the OH had not held formal meetings or kept notes of its discussions and most of the decisions (see paragraphs 157 et seq.). 544. The Government argued that the ensuing investigations confirmed that the OH actions had been in line with the pertinent legislation, in particular the Suppression of Terrorism Act, as in force at the material time, and the model regulations on the operative headquarters of a counter‑terrorist operation, adopted by the federal anti-terrorist commission on 11 June 2003. Among other things, the relevant legislation established the principle that all participants in the anti-terrorist operation were subordinate to the head of the OH, who ensured a single line of command. Interference by other officials, irrespective of their rank, was directly prohibited in the work of the OH. 545. In so far as the applicants’ allegation concerned the precautions taken by the authorities to protect people’s lives and the negotiation strategy, the Government placed special emphasis on section 14 of the Suppression of Terrorism Act, which provided that negotiations with the terrorists were allowed with the aim of saving human lives and health, protecting property and suppressing the terrorist act without recourse to force. Only those directly authorised by the OH to take part in the negotiations could do so. The provision contained an outright prohibition on considering, in the course of negotiations, the possibility of transferring any other people to the terrorists, handing them weapons or any other dangerous substances or items, as well as on demands of a political nature. 546. In line with these directions, on 1 September the OH had taken a range of urgent steps. These had included cordoning off the area around the school, evacuating people from the secured area, establishing control over the radio frequencies in the vicinity of the school, compiling a list of hostages and establishing means of communicating with the terrorists. The OH had also taken care of accommodating and assigning areas of responsibility to the members of the Ministry of Defence, Ministry of the Interior, Emercom and the health services. Four people had been put in charge of contact with the media: General Andreyev, Mr Dzugayev, Mr Dzantiyev and Mr Peskov from the Russian President’s administration. Later that day the FSB special forces had arrived, and had immediately started preparing for the various scenarios of the rescue operation. 547. On 2 September the OH had continued its attempts to reach an agreement with the terrorists. Through the professional negotiators and public figures they had been offered money and the chance to leave. The terrorists had not been ready to negotiate and had interrupted the contact, rejecting any offers and denying anything which could have alleviated the hostages’ situation. Nevertheless, the release of some of the hostages on 2 September had come as a result of the OH’s negotiation strategy. 548. On 3 September another compromise had been agreed upon – the terrorists had acceded to the removal of the hostages’ bodies from the schoolyard. After the first explosion at 1.10 p.m. the head of the OH had issued a written order to the FSB special units to start the rescue operation and eliminate the threat posed by the terrorists to the hostages. Later, experts had found the servicemen’s actions and equipment to be adequate to the situation. 549. In answering the question whether the storming had been planned and controlled so as to ensure minimal risk to life and the use of firearms and other weapons, the Government submitted that the investigation had devoted special attention to the “alternative” versions of the origins of the first explosions. These versions had suggested that the terrorists who had been holding the pedal detonators had been killed by a sniper, or by a projectile launched from a portable grenade launcher or flame-thrower. They had been thoroughly examined and rejected by the experts and the investigation. The Government referred, in particular, to expert reports no. 1 and no. 16/1 (see paragraphs 124 et seq., 224 et seq.). 550. Accordingly, the explosions in the gymnasium at 1.10 p.m. on 3 September 2004 had triggered the development of events which the OH had not wished to happen and whereby the decision to engage in combat had remained the only way to save the hostages’ lives. The threat to the hostages’ lives by that time had been clearly established and apparent from the terrorists’ statements and actions. This decision, taken under the pressure of time and in difficult circumstances, had been perceived by the OH as the only means of eliminating the threat. 551. Once the operation had started, the servicemen of the special forces had entered the gymnasium to ensure the evacuation of the hostages, while opening fire at the terrorists. During the clash in the gymnasium, the terrorists had fired several shots at the officers from grenade launchers, killing two officers and several hostages, and setting fire to the gymnasium roof. Similar events had been happening in other parts of the building; by 6 p.m. the rescue operation had ended and all living hostages had been evacuated from the building. 552. Only after verifying the absence of any living hostages had the special forces moved out of the building and resorted to heavier weapons such as grenade launchers and flame-throwers. The participation of the 58th Army personnel and equipment had been limited to the use of tanks and armoured personnel carriers and their crews. Between 9.10 p.m. and 9.20 p.m. on 3 September one tank had fired several shots at the canteen wall. There had been no other tanks involved. Three APCs had been involved in the storming, two of which had been stationed near the school windows to cover the movements of the servicemen and the evacuation of the hostages. The third had used its stationary machine gun to suppress the terrorists’ firing point on the second floor of the school prior to 3 p.m.; it had then been used to evacuate one of the wounded members of the special forces. 553. At 3.10 p.m. the OH had ordered the deployment of fire units. 554. By 12.30 a.m. on 4 September 2004 the school building had been secured and at 1 a.m. the sappers had started to deactivate the remaining explosive devices. 555. Turning to the preparation of and communication with the rescue, medical and fire teams, the Government provided a detailed summary of the information contained in criminal case no. 20/849 (see paragraphs 242 et seq.). It informed the Court that on 1 September 2004 the Russian Ministry of Health had set up a coordination cell, joining the forces of the local and federal ministries of health, Emercom, the Zashchita Centre and the forensic bureau. As of the evening of 1 September, special units of psychological aid had been in place for the relatives. A number of other urgent steps had been taken, such as putting medical personnel in a number of local hospitals on standby and preparing contingents of necessary equipment and materials, including blood for transfusion, to ensure the preparedness of the intensive care and surgery units. 556. On 2 September an emergency paediatric field hospital had been set up in Beslan. On 3 September an additional hospital had been set up, equipped to perform urgent surgical operations and other types of emergency care. By the time of the first explosions, over 200 doctors, 307 medical staff and seventy ambulances had been ready in Beslan. This had constituted ninety-four mobile medical teams, including fourteen reserve ones. 557. Between 1.15 and 6.30 p.m. on 3 September 2004, 556 injured people, including 311 children, had been transferred to the local hospitals. By 7 p.m. all patients had been placed in hospitals in Beslan and Vladikavkaz. Forty-seven urgent operations had been performed. Over 1,000 people had been provided with psychological aid. 558. In total, between 3 September and 16 December 2004 some 800 patients had received medical aid. A total of 305 had died at the school, and twenty-six people had died in hospital. 559. As to the situation with the firefighters, the Government referred to the part of expert report no. 1 concerning the actions of the firefighters and other Emercom staff (see paragraphs 148 et seq.). They also mentioned the decisions not to open a criminal investigation in respect of the Emercom staff (see paragraphs 235-240 above). The decision of 10 December 2004 not to charge the North Ossetian Minister of Emercom Mr Dzgoyev and the Deputy Minister Colonel Romanov with the crimes of professional negligence had concluded that “the leadership of the anti-terrorist operation had been carried out by the FSB OH, and no actions could have been taken without their permission” (ibid.). The decision had then stated that the two-hour delay between the call for the firemen to intervene and the time when they had done so had been the result of an absence of protective gear, which could have put the firemen in a life-threatening situation. In addition, on 20 April 2006 the investigation had decided not to open criminal proceedings in respect of Colonel Romanov and Mr Kharkov, the head of the fire service of the Pravoberezhny District, since in expert report no. 1 and the technical fire expert’s report there had been no grounds for concluding that their actions had contained the constituent elements of the offence of professional negligence (see paragraph 240 above). The Government specified that had the firefighters been deployed immediately, their lives and the safety of the equipment would have been put at serious risk. Such a development would in any event have rendered the rescue operation ineffective. 560. There had been 254 Emercom staff at the site and seventy rescue units. 561. The investigation concluded, on the basis of the expert reports, including autopsy reports, that none of the victims had been killed as a result of fire (see paragraphs 253 and 254 above). The burns sustained by the surviving hostages had been received as a result of the explosions of IEDs. Referring to expert report no. 1 and the sources cited therein (such as pictures taken during the evacuation), the Government submitted that the fire in the gymnasium had started after the rescue operation had ended; the hostages evacuated from the gymnasium had recalled only smouldering in the ceiling, not a blazing fire. 2. The Court’s assessment 562. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances. In particular, it is necessary to examine whether the operation was planned and controlled by the authorities so as to minimise, to the greatest extent possible, recourse to lethal force. The authorities must take appropriate care to ensure that any risk to life is minimised. The Court must also examine whether the authorities were not negligent in their choice of action. The same applies to an attack where the victim survives but which, because of the lethal force used, amounted to an attempt on life (see Isayeva, cited above, §§ 169-71, with further references). 563. As the Court explained in Finogenov and Others cited above, different degrees of scrutiny can be applied to different aspects of a situation raising issues under Article 2. The degree of scrutiny depends on the extent to which the authorities were in control of the situation and other relevant constraints inherent in the operative decision-making in this difficult and sensitive sphere (see Finogenov and Others, cited above, §§ 214-16). Normally, the planning and conduct of the rescue operation can be subjected to a heightened scrutiny. In doing so, the Court has taken into account the following factors: (i) whether the operation was spontaneous or whether the authorities could have reflected on the situation and made specific preparations; (ii) whether the authorities were in a position to rely on some generally prepared emergency plan, not related to that particular crisis; (iii) the fact that the degree of control of the situation was higher outside the building, where most of the rescue efforts took place; and (iv) that the more predictable a hazard, the greater the obligation was to protect against it (ibid., § 243). 564. Under the relevant national law, the OH was responsible for the anti-terrorist operation in Beslan. The extraordinary scope of the crisis and the multitude of factors which had to be taken into account and demanded a constant and centralised response make it impossible to evaluate the planning and control aspect of the operation without focusing on the work of the OH, the body tasked with those responsibilities. Leaving aside the question of the lethal force used, which will be addressed in detail below, the Court identifies the following important issues under this heading: the composition, functioning and accountability of the OH and the distribution of lines of responsibility and communication within the OH and with the outside agencies, such as the rescue, fire and medical services. 565. The Court has already found that there was sufficient information that indicated the possibility of the terrorist act and called for a number of advance measures. However, it has been found above that the absence of a single coordinating structure tasked with centralised handling of the threat, planning, allocating resources and securing feedback with the field teams, contributed to the failure to take reasonable steps that could have averted or minimised the risk before it materialised (see paragraphs 490-491 above). This lack of coordination was repeated during later stages of the authorities’ response. 566. Once the news of the terrorist act had reached the North Ossetian Government, an OH was set up. This first structure was headed by the North Ossetian President, Mr Dzasokhov. Relatively little information is available about the composition of this first OH. It included the head of the North Ossetian FSB and the Ministry of the Interior, but the rest of its members were not formally appointed. The leadership and composition of the body that was responsible for handling this major crisis was officially determined approximately thirty hours after it had started – at 2.45 p.m. on 2 September 2004 when a message about the appointments had arrived from Moscow (see paragraphs 130, 158, 183 above). Such a long delay in setting up the key structure that was supposed to prepare and coordinate the responses to the hostage-taking was not explained during the domestic investigation, and was not commented on by the Government. 567. But even once this new structure had been set up on 2 September, its configuration was not respected. In fact, it seems impossible to determine its composition with certitude, since various sources indicated different people. The documents in the investigation file no. 20/849 listed thirteen members of the OH (see paragraph 183 above), while other sources indicated seven (see paragraph 377 above). The Government, in their observations submitted in 2013, again gave a list of thirteen officials (see paragraph 543 above). As with other important aspects of the events, the information which was crucial for the evaluation of the planning and control aspect of the operation was scattered throughout various proceedings, and was not readily accessible from the documents contained in file no. 20/849. 568. Some detailed and relevant information about the composition and work of the OH was obtained during the questioning of witnesses at the trial of Mr Kulayev. Within these proceedings the head of the OH, General Andreyev, stated that the body had consisted of seven members (see paragraph 319 above). Five of its members questioned during the same trial – Lieutenant-Colonel Tsyban, General Sobolev, Mr Dzgoyev, Mr Goncharov and Mrs Levitskaya – stated that they had not taken part in the OH meetings, had not known the number of hostages, had not been informed of the terrorists’ demands and therefore could not contribute to any discussions concerning the negotiation strategy, and had not discussed, or been informed of, the rescue plans or any possible versions of the storming (see paragraphs 312, 314, 325, 333, 335 above). 569. This absence of formal leadership of the operation resulted in serious flaws in the decision-making process and coordination with other relevant agencies. To give a few examples of this lack of coordination, the North Ossetian Emercom – the agency responsible for evacuations and the fire services – were not informed of the true number of hostages, were not instructed to keep fire engines on standby near the school despite a clear risk of fire arising out of explosions, and did not equip the firemen with protective gear to access the zone of the operation (see paragraphs 235-240, above). The health services were not informed by the OH of the number of hostages, which was three times higher than the officially announced figure. Mr Goncharov obtained this information personally from Mr Aushev on the evening of 2 September and only after that took steps to arrange for sufficient medical resources (see paragraph 335 above). No plan for a rescue operation, however general, was prepared and communicated to the responsible services until two and a half days after the unfolding of the crisis (see, for example, paragraphs 322 and 323 above). No sufficient provisions were made for forensic work, body storage and autopsy equipment, which later contributed to difficulties with identifications and prevented the circumstances of the victims’ deaths from being fully established. Lack of responsibility and coordination on the part of the OH was identified and criticised in the North Ossetian Parliament’s report, and, to some extent, in the Duma’s report (see paragraphs 376 et seq., and 401 above). 570. In a situation which involves a real and immediate risk to life and demands the planning of a police and rescue operation, one of the primary tasks of the competent authorities should be to set up a clear distribution of lines of responsibility and communication within the OH and with the agencies involved, including the military and security, rescue, fire and medical services. This body should be responsible for collecting and distributing information, choosing negotiation strategies and partners and working out the possible outcomes, including the possibility of a storming and its consequences. It is therefore striking to see that the majority of the members of the body tasked precisely with those questions were effectively excluded from any discussions or decision-making processes. The absence of any records, however concise, of the OH meetings and decisions adopted, highlight the appearance of a void of formal responsibility for the planning and control of the operation, as the situation developed. The subsequent domestic proceedings were unable to fill in this void, and it is still unclear when and how the most important decisions had been taken and communicated with the principal partners, and who had taken them. It is also undisputed that the organisation of the OH had been entirely under the authorities’ control, that it should have relied on the pre-existing legislative and operational framework provided for such situations, and that the magnitude of the threat commanded that the maximum available State resources be mobilised. 571. The Court reiterates that in situations such as the one at hand, some measure of disorder is unavoidable. It also formally recognises the need to respect the security concerns and thus keep certain aspects of the operations secret (see Finogenov and Others, cited above, § 266). It also does not question the political decisions taken by the authorities, for example, on negotiations with the terrorists, the distribution of responsibility between officials for different aspects of the operation or the general choice of strategy to pursue. It does not lose sight of the courage and efficiency demonstrated by the services involved, including the medical and rescue teams, who ensured a mass and rapid evacuation, sorting and emergency aid to hundreds of victims, despite the difficulties. There is no doubt that their professionalism contributed to limiting the number of victims once the rescue operation had ended (see paragraphs 241, 250 and 557-560 above), unlike the situation described in Finogenov and Others (ibid.). 572. In view of this, one cannot avoid the conclusion that this lack of responsibility and coordination contributed, to some extent, to the tragic outcome of the events. The investigation did not attribute a single death or injury to the actions of the State officials, yet this conclusion seems untenable in view of the known circumstances of the case. 573. The Court reiterates that its role is not to establish the individual liability of those involved in the planning and coordination of the operation (see Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 182, ECHR 2011 (extracts)). Rather, it is called upon to decide whether the State as a whole complied with its international obligations under the Convention, namely its obligation to “take all feasible precautions in the choice of means and methods of a security operation mounted against an opposing group with a view to avoiding and, in any event, minimising, incidental loss of civilian life” (see Ergi v. Turkey, 28 July 1998, Reports 1998-IV, § 79). 574. In the light of the above, the Court finds that the Russian authorities failed to take such feasible precautions, in particular because of the inability of the commanding structure of the operation to maintain clear lines of command and accountability, coordinate and communicate the important details relevant to the rescue operation to the key structures involved and plan in advance for the necessary equipment and logistics. This constitutes a breach of Article 2 of the Convention. B. Use of lethal force 1. The parties’ submissions (a) The applicants 575. The first group of applicants were of the opinion that the use of lethal force by the Russian forces on 3 September 2004 was undisputed. By the end of the operation, over 330 people had lost their lives, and hundreds had been injured. The applicants submitted that the State had failed in its obligation under Article 2 of the Convention to minimise recourse to lethal force and the loss of life, that there was ample credible evidence to establish that lethal force had been used while hostages had still been in the school building and that it had caused civilian fatalities, and that the use of force had been indiscriminate and disproportionate. They disputed the Government’s contention that non-discriminatory weapons such as a tank gun, grenade launchers and flame-throwers had only been used after 6 p.m. They pointed to the ample evidence to the contrary. They also questioned the conclusions about the cause of the first explosions in the gym. They drew attention to the sappers’ and hostages’ testimony that after 2.30 p.m. the large IED attached to the basketball hoop and most of the smaller IEDs had remained intact. 576. They also pointed to numerous testimonies suggesting the use of tank gun, flame-throwers and grenade launchers during the storming. They then expanded on the non-discriminatory nature of these weapons, referring to their technical characteristics. If they had been targeted at locations where there had been both terrorists and hostages, such as the canteen and south wing of the school, it would not have been possible for those firing them to be sure that there were no hostages in those particular parts of the building. In such circumstances, these weapons could not be considered appropriate for either rescuing the hostages or effecting arrests of the terrorists; they had therefore not been absolutely necessary, but rather manifestly disproportionate. This was particularly true in respect of the RPO-A flame-throwers. 577. To strengthen their position, this group of applicants relied on a number of international law instruments concerning State responsibility and International Humanitarian Law (IHL). They argued that the Government’s stated aim of rescuing the hostages could not justify the use of disproportionate lethal force. Even the principle of “distress” (Article 24 of the International Law Commission’s Articles On State Responsibility For Internationally Wrongful Act) in which the interest concerned is the immediate saving of people’s lives, explicitly prohibited a wrongful act that would create a comparable or greater peril to the one sought to be averted. The applicants submitted that the disproportionate force used had created at least a comparable peril, and did not constitute a necessity (Article 25 of the same commentary). They also pointed out that even in situations of armed conflict, governed by the more permissive regime of IHL, directing force against civilians and carrying out indiscriminate attacks was prohibited (Article 51 of Geneva Conventions Protocol I). They further pointed out that under the Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III to the CCW), the use of flame-throwers was specifically prohibited in areas with a concentration of civilians. 578. The applicants next argued that the field manuals of the military and security forces involved in the siege had been inadequate for a Convention-compliant evaluation, supervision and regulation of the use of lethal force. They regretted that the training and combat manuals of the FSB were not public documents, and it was impossible to understand how the use of force was regulated for its servicemen. However, the Army Field Manual, as in force in 2004, had stressed that “all forces, means and possibilities available to achieve success in combat” should be used without hesitation in order to achieve victory. They referred to Volume 3, which addressed the actions of platoons and tanks and, in particular, paragraphs 116 to 118, which described methods of combat in urban areas. The applicants argued that the tactics described there – to fire at the building (with tank cannons, grenade launchers and flame-throwers), to break holes in the walls and suppress enemy fire, so that other regiments could enter and take over the building – bore a striking resemblance to those witnessed in this case. The requirement to use all means and methods to destroy the enemy was brazenly explicit in that manual, but there was no mention of the principles of proportionality, necessity or distinction. (b) The Government 579. The Government referred to their previous observations summarised in the decision on admissibility (see Tagayeva and Others (dec.), cited above, §§ 565-70). They essentially disputed the parallel drawn with the case of Finogenov and Others (cited above). In their opinion, in the latter case the (potentially) lethal force had been applied to the hostages – the applicants and their relatives – “intentionally and consciously, either as a means of achieving a distant aim ([for example the] liquidation of a terrorist threat, in the course of which applicants or their relatives were affected by the measure applied) or as an aim in itself (where an applicant himself posed a threat to the others).” The Government stressed that the use of lethal force in the circumstances as described in that case – use of an unknown gas following which over 120 hostages died – had been indeed indiscriminate since the hostages had been affected along with the terrorists. The case at hand, however, concerned a situation where lethal force had been applied “directly and precisely” to the terrorists, aiming to eliminate the threat they had posed to the hostages and others. The Government argued that, given the circumstances, the examination of the applicants’ grievances should be limited to the procedural aspect of Article 2 of the Convention. 580. The Government insisted that the investigation had failed to attribute a single death among the hostages to the actions of the security forces. All the deaths had been caused by the terrorists’ actions (see paragraph 254 above). They further referred to the conclusions of expert report no. 1 and the investigator’s decision of 3 December 2004 not to initiate criminal proceedings against the officials (see paragraphs 124 et seq., 229-233 above). These documents contained an exhaustive chronology of the events, in particular of the first explosions of 3 September 2004 and the ensuing storming. In addition to the above-mentioned documents, they relied on expert report no. 16/1 (see paragraphs 224 et seq.) to argue that the possibility that the first explosions could have been caused by a device fired from outside had been thoroughly examined and dismissed by highly qualified and independent experts. Equally, the allegation that the security services had used indiscriminate weapons, such as grenades, grenade launchers, flame-throwers and a tank cannon prior to 6 p.m. on 3 September 2004, that is to say when the evacuation of the surviving hostages had been completed, had been dismissed as one for which there had been no factual basis (see paragraphs 229-233 above). 581. The Government reiterated that the OH’s decision to start the storming of the building and the rescue operation had been taken after the first explosions of the IEDs had killed dozens of people in the gymnasium and, moreover, when the terrorists had started to shoot at the fleeing hostages. The decision had therefore been adopted under tremendous pressure and in a situation where the authorities’ control had been minimal, that is, in circumstances where the rigorous standard of “absolutely necessary” could be departed from (the Government referred to Finogenov and Others, cited above, § 211). Even if the Court found that the situation at hand did not “lie far beyond the Court’s expertise” and that the standard of “absolute necessity” should be applied, the Government reiterated that since there had been no known victims of lethal force used by State agents, the traditional test under Article 2 had been passed. 582. As to the storming itself, it had been performed by the special forces of the FSB – the Alpha and Vympel units – which had been composed of 329 servicemen. They had been assisted by the forces of the 58th Army. The servicemen had been equipped with ordinary weapons and special weapons, including grenade launchers and flame–throwers. 583. The Government referred to dozens of witness statements collected by the investigation between September 2004 and the summer of 2007 from military and police servicemen, officers of Emercom, firefighters and members of the OH. These statements, consistently and in detail, denied the use of grenade launchers, flame-throwers and a tank cannon prior to 6 p.m. on 3 September 2004 (see paragraph 207 above). 2. The Court’s assessment 584. By way of introduction, the Court observes that it has already concluded that the planning and control of the operation had failed to take all feasible precautions with a view to avoiding and, in any event, minimising, incidental loss of civilian life (see paragraph 573 above). Now it will need to examine the remaining complaint under Article 2 brought by this group of applicants – that of the use of lethal force by the State agents. The use of lethal force during the operation is undisputed, including the use of indiscriminate weapons such as grenade launchers, flame-throwers and a tank gun. The circumstances of its use and the causal link with the deaths and injuries are contested between the parties, as are the adequacy of the legal framework of its application and the compliance of its use with the principle of “absolute necessity”. (a) Whether there was a causal link between the use of lethal force by the State agents and the deaths and injuries complained of 585. Firstly, the Court will examine the facts that are in dispute between the parties. The applicants alleged, principally, that indiscriminate weapons had been used by the State agents before 6 p.m. on 3 September 2004, at a time when they could have affected the hostages. They also suggested that the first explosions in the building could have been caused by the actions of the State agents. The Government, for their part, found it established that the first explosions had been caused by IEDs, that indiscriminate weapons had been used only after all the living hostages had been evacuated from the building, and that no harm had been inflicted upon the hostages by the weapons of the security forces. 586. A number of principles have been developed by the Court as regards applications in which it is faced with the task of establishing the facts of events on which the parties disagree: the factual findings should be based on the standard of proof “beyond reasonable doubt”; such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the parties when evidence is being obtained may also be taken into account. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake. The Court is also attentive to the seriousness that attaches to a ruling that a Contracting State has violated fundamental rights (see Giuliani and Gaggio, cited above, § 181, with further references). The Court further reiterates in this connection that, in all cases where it is unable to establish the exact circumstances of a case for reasons objectively attributable to the State authorities, it is for the respondent Government to explain, in a satisfactory and convincing manner, the sequence of events and to exhibit solid evidence that can refute the applicant’s allegations (see Mansuroğlu v. Turkey, no. 43443/98, § 80, 26 February 2008, with further references). The Court has also noted the difficulties for applicants to obtain the necessary evidence in support of allegations in cases where the respondent Government are in possession of the relevant documentation and fail to submit it. If the authorities then fail to disclose crucial documents to enable the Court to establish the facts or otherwise provide a satisfactory and convincing explanation, strong inferences may be drawn (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 184, ECHR 2009, with further references). The Court’s reliance on evidence obtained as a result of the domestic investigation and on the facts established within the domestic proceedings will largely depend on the quality of the domestic investigative process, its thoroughness and consistency (see Finogenov and Others, cited above, § 238, with further references). 587. The applicants pointed to the evidence that indiscriminate weapons had been fired at the school building during the first few hours of the storming. Among other things, this followed from a number of witness statements obtained during the trial of Mr Kulayev (see paragraphs 293, 294, 298, 300, 303 above). The North Ossetian Parliament’s report found it established that two tanks had fired at the canteen and kitchen premises between 2 p.m. and 4.30 p.m. (see paragraph 386 above). An important part of Mr Savelyev’s report was devoted to the use of tanks, grenade launchers and flame-throwers, pointing to their use between 1.30 p.m. and 4 p.m. (see paragraphs 408-411 above). As noted above, the investigation had failed to establish the circumstances of the use of lethal force and to fully assess these allegations (see paragraphs 523, 524 and 527 above). 588. Irrespective of whether the indiscriminate weapons such as a tank cannon, grenade launchers and flame-throwers had been used before or after 6 p.m. on 3 September, it remains unexplained how the agents employing them were able to verify the absence of hostages in the premises under attack. The statement that it could be guaranteed that after that time indiscriminate weapons would be directed exclusively at the terrorists is not supported by sufficient objective evidence, in view of the limited information about the circumstances of the deaths and injuries sustained and the use of those weapons, as noted above (see paragraph 524 above). This was also the conclusion endorsed by the North Ossetian Parliament’s report on the events (see paragraph 388 above). 589. Overall, the Court finds that the evidence supports a prima facie complaint that the State agents used indiscriminate weapons upon the building while the terrorists and hostages were intermingled. Accordingly, it seems impossible that it could be ensured that the risk to the hostages could be avoided or at least minimised. 590. The Court cannot agree that the Government provided a “satisfactory and convincing explanation” about the use of force and the circumstances of the deaths and injuries complained of by the applicants. It accepts that presumptions can be drawn from the co-existence of an unrebutted body of evidence pointing to the use of indiscriminate weapons upon the building where both the terrorists and hostages had been present, and the absence of proper fact-finding regarding the causes of death and circumstances of the use of arms. Similarly to the planning and control aspect of the operation, the Court is unwilling to speculate about the individual deaths and injuries sustained. Despite this lack of individual certainty, the Court accepts that the known elements of the case allow it to conclude that the use of lethal force by the State agents contributed, to some extent, to the casualties among the hostages. (b) Justification under Article 2 § 2 of the Convention 591. The Court next needs to examine whether the use of lethal force can be considered justified under Article 2 of the Convention. The Court made the following findings in Finogenov and Others (cited above, § 226): “Heavily armed separatists dedicated to their cause had taken hostages and put forward unrealistic demands. The first days of negotiations did not bring any visible success; in addition, the humanitarian situation (the hostages’ physical and psychological condition) had been worsening and made the hostages even more vulnerable. The Court concludes that there existed a real, serious and immediate risk of mass human losses and that the authorities had every reason to believe that a forced intervention was the “lesser evil” in the circumstances. Therefore, the authorities’ decision to end the negotiations and storm the building did not in the circumstances run counter to Article 2 of the Convention.” In the present case, after the first explosions in the gymnasium and the terrorists had opened fire upon the escaping hostages, the risk of massive human loss became a reality, and the authorities had no choice but to intervene by force. Accordingly, the Court accepts that the decision to resort to the use of force by the State agents was justified in the circumstances, under Article 2 § 2 (a) of the Convention. (c) Legal framework 592. The Court reiterates, next, that in previous cases it has examined the existing legal or regulatory framework for the use of lethal force (see McCann and Others, cited above, § 150, and Makaratzis v. Greece [GC], no. 50385/99, §§ 56-59, ECHR 2004‑XI). The same approach is reflected in the UN Basic Principles (cited above in paragraph 465) which indicate that laws and regulations on the use of force should be sufficiently detailed and should prescribe, inter alia, the types of arms and ammunition permitted. The Court will thus examine the legal framework of the use of lethal force, which the applicants considered to be inadequate. 593. In the cases reviewed in the context of anti-terrorist operations in the North Caucasus, the Russian Government have essentially relied on the provisions of the Suppression of Terrorism Act as the legal basis of the use of force. The Court has left open the question whether the existing regulations constituted an appropriate legal framework for the use of force and contained clear and sufficient safeguards to prevent arbitrary deprivation of life, focusing its analysis on the practical application of the “absolute necessity” test to the circumstances of the cases (see Isayeva, cited above, § 199; Arzu Akhmadova and Others v. Russia, no. 13670/03, § 164, 8 January 2009; Dzhamayeva and Others v. Russia, no. 43170/04, § 89, 8 January 2009; and Esmukhambetov and Others v. Russia, no. 23445/03, § 143, 29 March 2011). 594. In Finogenov and Others (cited above) the Court also explained that the lack of clarity in the legislative framework providing for the use of means that were at least potentially lethal (an unknown gas) could not, on its own, lead to a finding of a violation of Article 2 of the Convention. It said that the “general vagueness of the Russian anti-terrorism law does not necessarily mean that in every particular case the authorities failed to respect the applicants’ right to life. Even if necessary regulations did exist, they probably would be of limited use in the situation at hand, which was totally unpredictable, exceptional and required a tailor-made response. The unique character and the scale of the Moscow hostage crisis allows the Court to distinguish the present case from other cases where it examined more or less routine police operations and where the laxity of a regulatory framework for the use of lethal weapons was found to violate, as such, the State’s positive obligations under Article 2 of the Convention” (ibid. § 230). 595. In view of the practice summarised above, the Court confirms that a difference should be drawn between “routine police operations” and situations of large-scale anti-terrorist operations. In the latter case, often in situations of acute crisis requiring “tailor-made” responses, the States should be able to rely on solutions that would be appropriate to the circumstances. That being said, in a lawful security operation which is aimed, in the first place, at protecting the lives of people who find themselves in danger of unlawful violence from third parties, the use of lethal force remains governed by the strict rules of “absolute necessity” within the meaning of Article 2 of the Convention. It is of primary importance that the domestic regulations be guided by the same principle and contain clear indications to that extent, including the obligations to decrease the risk of unnecessary harm and exclude the use of weapons and ammunition that carry unwarranted consequences. 596. Turning to the legislative framework in the present case, the Court first notes that, unlike the situation described in the Finogenov and Others judgment, the weapons used in the present case were “conventional weapons,” falling under the general legal framework. Although the applicants suggested that thermobaric weapons were governed by the more restrictive legal regime of incendiary weapons, international military experts classed them as enhanced explosive munitions, and not incendiary (see paragraph 472 above). This was also the view of the Russian military experts (see paragraph 212 above). 597. As to the general legal framework, the Suppression of Terrorism Act allowed the use of “weapons and [other] special-purpose hardware and means” in an anti-terrorist operation, subject to the OH’s decisions. The choice of type of weapons, including indiscriminate ones, was not regulated in any detail. Furthermore, the law required that the specific technical methods of anti-terrorist operations be kept secret. At the same time, the Act obliged the OH to be guided by the “the interests of people endangered by a terrorist act” (see paragraphs 457 and 458 above). The applicants referred to the provisions of the Army Field Manual (see paragraph 578 above), as in force at the relevant time (see paragraph 462 above). But the documents reviewed stipulated that during an anti-terrorist operation the operational management of the army servicemen and units, including use of arms, was taken over by the FSB, in line with the Suppression of Terrorism Act. 598. The Court notes that the Suppression of Terrorism Act remained silent not only on the types of weapons and ammunition that could be used, but also on the rules and constraints applicable to this choice. It did not incorporate in any clear manner the principles of using force that should be no more than “absolutely necessary,” such as the obligations to decrease the risk of unnecessary harm and exclude the use of weapons and ammunition that carried unwarranted consequences (see the UN Basic Principles and the Council of Europe Guidelines, cited in paragraphs 465-467 above). At the same time, it provided near blanket immunity to the participants in anti-terrorist operations from responsibility for any harm caused by them to “legally protected interests” (see paragraph 460 above). It is not surprising that in the absence of clear rules on conducting anti-terrorist operations, references were made to the Army Field Manual, which applied to combat situations in armed conflicts and appeared inappropriate for the situation (see paragraph 462 above). 599. The Court thus finds that the domestic legal framework failed to set the most important principles and constraints of the use of force in lawful anti-terrorist operations, including the obligation to protect everyone’s life by law, as required by the Convention. Coupled with wide-ranging immunity for any harm caused in the course of anti-terrorist operations, this situation resulted in a dangerous gap in regulating situations involving deprivation of life – the most fundamental human right under the Convention. In this case, the Court finds that in view of the inadequate level of legal safeguards, Russia had failed to set up a “framework of a system of adequate and effective safeguards against arbitrariness and abuse of force” (see Makaratzis, cited above, §§ 58 and 71). This weakness of the regulatory framework has a bearing on the Court’s considerations with regard to the proportionality of the force used, as examined below. (d) Whether the lethal force was absolutely necessary 600. The applicants were of the opinion that the lethal force used had been excessive, that the weapons used had been indiscriminate and that their use could not be justified in the circumstances. The Government insisted that the weapons had been used “directly and precisely” against the terrorists and that the hostages had not been affected, thus, even if the “absolute necessity” test were applied, it would be satisfied. 601. The Court reiterates that the exceptions contained in Article 2 § 2 of the Convention indicate that this provision extends to, but is not concerned exclusively with, intentional killing. The text of Article 2, read as a whole, demonstrates that paragraph 2 does not primarily define instances where it is permitted intentionally to kill an individual, but describes the situations where it is permitted to “use force” which may result, as an unintended outcome, in the deprivation of life. The use of force, however, must be no more than “absolutely necessary” for the achievement of one of the purposes set out in sub-paragraphs (a), (b) or (c). In this connection, the use of the term “absolutely necessary” in Article 2 § 2 indicates that a stricter and more compelling test of necessity must be employed than that normally applicable when determining whether State action is “necessary in a democratic society” under paragraph 2 of Articles 8 to 11 of the Convention. In particular, the force used must be strictly proportionate to the achievement of the aims set out in sub-paragraphs 2 (a), (b) and (c) (see McCann and Others, cited above, § 149). 602. In the present case, the Court has already found that the conclusion reached by the domestic investigation that there were no casualties or fatalities among the hostages on account of the use of force by the State agents was untenable, and that it must be assumed that such use of force did contribute, to some extent, to the casualties among the hostages (see paragraphs 524 and 590 above). Having found above that the decision to resort to the use of lethal force was justified under Article 2 (a) of the Convention, the Court must now move on to the applicants’ remaining argument – that the lethal force had been used indiscriminately against both terrorists and hostages, “which cannot be considered compatible with the standard of care prerequisite to an operation involving use of lethal force by State agents” (see Isayeva, § 191, and Finogenov and Others, § 231, both cited above). The Court acknowledges the Government’s argument that the situation was different from the circumstances described in the Finogenov and Others judgment, where it had found that the use of gas could not be qualified as “indiscriminate”, as it had left the hostages a high chance of survival, depending on the efficiency of the subsequent rescue efforts (see Finogenov and Others, cited above, § 232). 603. The Court has noted the failure to plan and control the operation with the aim of minimising the risk to civilians, and the absence of an adequate regulatory framework that would reflect the applicable international principles. These findings have direct relevance for the analysis below. As to the planning and control of the operation, the Court has concluded that the OH failed to establish lines of responsibility and ensure coordination in the most important aspects of the operation, including planning of the rescue and storming operation (see paragraph 574 above). Next, the gaps in the legal framework resulted in the absence of clear guidelines about the principles and constraints regarding the use of lethal force, including the obligations to decrease the risk of unnecessary harm and exclude use of weapons and ammunition that carry unwarranted consequences. All those factors led to a situation where decisions about the types of weapons used, evaluation of the constraints and conditions, and deciding the practical instructions were left to the commanders in charge of the storming operation. 604. In the present case, several officials testified that this responsibility had lain with the commanders of the FSB special forces who had been called in to play the principal role in the event of any violent confrontation. General Andreyev, the head of the OH appointed on 2 September, explained that the OH had not worked out the possibility of resolving the situation by force, except if the risk to the hostages’ lives had materialised. In such cases, questions concerning the types and use of weapons, including special weapons such as flame-throwers, lay within the competence of the FSB Special Services Centre (see paragraph 323 above). The Duma report concluded that the use of flame-throwers and a tank cannon had been authorised by the commander of the Centre after 6 p.m. on 3 September (see paragraph 401 above). According to the North Ossetian Minister of Emercom, the commander of the Centre had authorised the fire services to intervene after 3 p.m. (see paragraph 326 above). This evidence indicates that the key person during the operation was the commander of the Centre, General Tikhonov. Although some sources indicated that he had been a member of the OH (see paragraphs 183 and 543 above above), others did not (see paragraph 377 above). Mr Andreyev, the head of the OH, did not name him among the members of the OH (see paragraph 319 above), nor was he mentioned by any other members of the OH as participating in their work. 605. Despite the commander of the Special Services Centre playing such a key role in the events, it does not seem that he was questioned within the framework of investigation no. 20/849, and the list of documents contained in the related file does not include his testimony (see paragraph 203 above). He testified before the Duma commission, but his testimony was not disclosed. Two sources referred to different contents of this statement: while the majority found it confirmed that the use of indiscriminate weapons had been authorised by him after 6 p.m., Mr Savelyev cited his deposition of 28 October 2004 to allege that grenade launchers and flame-throwers had been used at around 3 p.m. (see paragraphs 401 and 409 above). The Court reiterates that the evidence supports a prima facie complaint that the State agents used indiscriminate weapons against the building while the terrorists and hostages were intermingled (see paragraph 589 above). In the absence of first-hand explanations from the person who had been de facto in charge of the use of force during the operation, and irreconcilable differences on this key matter in other sources, the Court finds that the Government have not provided a “satisfactory and convincing explanation” that the lethal force used had been no more than absolutely necessary. Therefore, inferences can be drawn against the Government’s position in this respect. 606. The Court confirms that the situation that led to the storming of the school was exceptional. Sudden and powerful explosions in the gymnasium left many dead and many more wounded, burned and shell-shocked. In the ensuing confusion, the terrorists fired upon the escaping hostages and at those who were trying to assist them. The terrorists were armed not only with firearms and explosives, but also powerful weapons, such as grenade launchers. It is clear that in this situation operational command should have been able to take rapid and difficult decisions about the means and methods to employ so as to eliminate the threat posed by the terrorists as soon as possible. 607. Having said that, the operation was aimed at saving lives and re-establishing law and order. Therefore, apart from the danger presented by the terrorists, the commanders had to consider the lives of over 1,000 people held by them, including hundreds of children. The hostages, who had been left exhausted by more than fifty hours of detention in stressful conditions, without access to food or water, clearly constituted a vulnerable group. The acute danger of the use of indiscriminate weapons in such circumstances should have been apparent to anyone taking such decisions. All relevant factors should have been weighed up and carefully considered in advance, and the use of such weapons, if unavoidable in the circumstances, should have been subject to strict supervision and control at all stages to ensure that the risks to the hostages were minimised. 608. The Court notes that the security forces used a wide array of weapons, some of them extremely powerful and capable of inflicting heavy damage upon the terrorists and hostages, without distinction. In particular, although the exact quantity of flame-throwers used was not established, it appears that between twelve and seventeen RPO-A Shmel were used, about forty charges for a portable flame-thrower LPO-97, at least twenty‑eight charges for grenade launchers and eight high-fragmentation shells for a tank cannon. To this must be added 7,000 cartridges for automatic and machine guns, over 2,000 tracer bullets, 450 armour-piercing incendiary cartridges for large-calibre machine guns and ten hand grenades. Furthermore, an unknown quantity of other powerful explosive and thermobaric weapons is mentioned in the documents contained in the case file (see paragraph 521 above). 609. As in the Isayeva case (cited above), the Court finds that “the primary aim of the operation should be to protect lives from unlawful violence. The massive use of indiscriminate weapons stands in flagrant contrast with this aim and cannot be considered compatible with the standard of care prerequisite to an operation of this kind involving the use of lethal force by State agents.” It is not for the Court, with detached reflection, to substitute its own opinion of the situation for that of security officers who were required to intervene to save human lives, in an extremely tense situation, facing armed and dangerous individuals. While errors of judgment or mistaken assessments, unfortunate in retrospect, will not in themselves entail responsibility under Article 2, such use of explosive and indiscriminate weapons, with the attendant risk for human life, cannot be regarded as absolutely necessary in the circumstances (see, among other authorities, Dimov and Others v. Bulgaria, no. 30086/05, § 78, 6 November 2012). 610. There has, accordingly, been a breach of Article 2 of the Convention by the State agents, on account of the massive use of lethal force. (e) Conclusion on the use of lethal force 611. To recapitulate, the Court has concluded that although the decision to resort to the use of lethal force was justified in the circumstances, Russia breached Article 2 of the Convention on account of the use of lethal force, and, in particular, indiscriminate weapons. The weakness of the legal framework governing the use of force contributed to the above finding. The Court does not find it necessary to examine the applicants’ remaining complaint under this heading, notably about who was responsible for the first explosions in the gymnasium. IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION (ALL APPLICANTS) 612. All applicants argued that they had no access to effective remedies against the violations alleged under Article 2 of the Convention. Article 13 provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. The parties’ submissions 1. The applicants 613. The “first group of applicants” argued in their observations received in February 2013 that the payment of financial compensation and other measures of support to the victims had not replaced the obligation on the State arising under Article 13 of the Convention in conjunction with Articles 2 and 3 to carry out a thorough and effective investigation. Relying on the case of Khashiyev and Akayeva v. Russia (nos. 57942/00 and 57945/00, 24 February 2005), the applicants argued that since the criminal investigation in their case had been ineffective, civil proceedings were incapable, without the benefit of the conclusions of a criminal investigation, of making any meaningful findings as to the perpetrators of the fatal assaults, let alone establishing their responsibility. Furthermore, a Contracting State’s obligation under Articles 2 and 13 of the Convention to conduct an investigation capable of leading to the identification and punishment of those responsible in cases of fatal assault might be rendered illusory if, in respect of complaints under those Articles, an applicant were required to exhaust an action leading only to an award of damages (ibid., § 122). 614. In their additional observations of October 2013 they further stressed that the domestic proceedings had been ineffective. Their numerous applications to the courts, especially in the course of the criminal proceedings under Article 125 of the Code of Criminal Procedure, had not rendered the investigation effective and had not resolved their grievances under Article 2 of the Convention. They stressed that between December 2005 and September 2008 in criminal investigation no. 20/849 the victims had lodged about 260 complaints with the prosecutor’s office. Most of those had been dismissed by the investigators. The applicants had then appealed in the district courts of Vladikavkaz in nine separate sets of proceedings and subsequently in the North Ossetia Supreme Court. Their appeals had been dismissed by the courts, without any attempt to examine the criminal case file (see paragraphs 256 et seq.). 615. The “second group of applicants” also stressed that the judicial remedies had turned out to be ineffective in their situation. 2. The Government 616. The Government referred to their previous observations summarised in the decision on admissibility (see Tagayeva and Others (dec.), cited above, §§ 585-86). They were of the opinion that the rights of the applicants, as victims or relatives of victims in the criminal proceedings, were fully protected by the domestic legislation and practice. In particular, those who had expressed a wish to do so had been granted victim status in the criminal proceedings. They had thus acquired the procedural rights inherent to such status: to be informed of developments, be familiarised with the case files, lodge complaints and otherwise participate in the proceedings and lodge civil claims for compensation for the damage caused by the crime. Some of the victims had made use of these rights, while others had waived their rights to do so. 617. The Government also referred to the wide range of measures taken by the State authorities in the aftermath of the crisis independently of the criminal proceedings. They referred to the documents which had detailed the compensation and other measures taken in respect of the hostages and their families and the Beslan community as a whole. B. The Court’s assessment 1. General principles established in the Court’s case-law 618. The Court observes that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of this Article is thus to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice and in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State. Where a right of such fundamental importance as the right to life or the prohibition against torture, inhuman and degrading treatment is at stake, 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, including effective access for the complainant to the investigation procedure (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, §§ 148-49, ECHR 2014, with further references). 619. More specifically, where the alleged violations have implied direct responsibility of the State agents, the Court has found that the requirements of Article 13 are broader than a Contracting State’s obligation under Articles 2, 3 and 5 to conduct an effective investigation into the death and/or disappearance of a person who has been shown to be under their control and for whose welfare they were accordingly responsible (see El‑Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 255, ECHR 2012, with further references). In such circumstances, where a criminal investigation into a lethal attack has been ineffective and the effectiveness of any other remedy that might have existed, including the civil remedies suggested by the Government, has consequently been undermined, the State would fail in its obligation under Article 13 of the Convention (see Khashiyev and Akayeva, § 183, and Isayeva, § 229, both cited above). 620. Where the case concerns an alleged failure to protect people from the acts of others, Article 13 may not always require the authorities to assume responsibility for investigating the allegations. There should, however, be available to the victim or the victim’s family a mechanism for establishing any liability of State officials or bodies for acts or omissions involving the breach of their rights under the Convention (see Centre for Legal Resources, cited above § 149, with further references). In the Court’s opinion, the authority referred to in Article 13 may not necessarily in all instances be a judicial authority in the strict sense. Nevertheless, the powers and procedural guarantees an authority possesses are relevant in determining whether the remedy before it is effective. The Court has held that judicial remedies furnish strong guarantees of independence, access for the victim and family, and enforceability of awards in compliance with the requirements of Article 13 of the Convention (ibid.). The Court explained in Öneryıldız v. Turkey ([GC], no. 48939/99, §§ 148-49, ECHR 2004‑XII): “... However, for the Court, and seen from the standpoint of the interests of the deceased’s family and their right to an effective remedy, it does not inevitably follow from the above-mentioned case-law that Article 13 will be violated if the criminal investigation or resultant trial in a particular case do not satisfy the State’s procedural obligation under Article 2 as summarised in, for example, Hugh Jordan, cited above (see paragraph 94). What is important is the impact the State’s failure to comply with its procedural obligation under Article 2 had on the deceased’s family’s access to other available and effective remedies for establishing liability on the part of State officials or bodies for acts or omissions entailing the breach of their rights under Article 2 and, as appropriate, obtaining compensation. 149. The Court has held that, in relation to fatal accidents arising out of dangerous activities which fall within the responsibility of the State, Article 2 requires the authorities to carry out of their own motion an investigation, satisfying certain minimum conditions, into the cause of the loss of life ... It further observes that, without such an investigation, the individual concerned may not be in a position to use any remedy available to him for obtaining relief, given that the knowledge necessary to elucidate facts such as those in issue in the instant case is often in the sole hands of State officials or authorities. Having regard to these considerations, the Court’s task under Article 13 in the instant case is to determine whether the applicant’s exercise of an effective remedy was frustrated on account of the manner in which the authorities discharged their procedural obligation under Article 2 ...” 621. The Court has also held that even if a single remedy does not by itself entirely satisfy the requirements of Article 13 of the Convention, the aggregate of remedies provided for under domestic law may do so (see Abramiuc v. Romania, no. 37411/02, § 119, 24 February 2009). 622. Lastly, in many similar cases, the Court decided that it was not necessary to examine separately complaints under Article 13 brought in conjunction with Articles 2 and 3, since the issues were covered by the findings under the procedural limb of those Articles (see Makaratzis, § 186; Varnava and Others, § 211; Finogenov and Others, § 284; Dimov and Others, § 89; Armani da Silva, § 292, all cited above; and Janowiec and Others v. Russia (dec.), nos. 55508/07 and 29520/09, § 124, 5 July 2011, where this complaint was declared inadmissible for similar reasons). 2. Application of the above principles in the present case 623. The Court has established that the applicants brought the substance of their grievances under Article 2 of the Convention to the attention of the public authorities. It has also found that the investigation was ineffective, notably since it was not capable of leading to a determination of whether the force used was or was not justified in the circumstances. The complaint is therefore “arguable” for the purposes of Article 13 (see Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131). 624. As noted above, in many cases directed against Russia, where the use of lethal force by the State agents has been alleged, the absence of an effective investigation precluded the victims from accessing other forms of redress, including establishment of the circumstances of the events, identifying perpetrators and accessing compensation for the violations alleged (see the cases cited in paragraph 619 above; see also Aslakhanova and Others, cited above, § 156, and Abakarova v. Russia, no. 16664/07, § 104, 15 October 2015). In the present case, the applicants alleged a lack of effective remedies for two principal reasons: the absence of any means of obtaining compensation from the alleged perpetrators of the unlawful acts and the lack of access to the information retained by the authorities on the circumstances of the deaths and injuries that could have been caused by the State agents. The Court finds that the case bears some particular features that should be taken into account for the analysis of remedies under Article 13 of the Convention. 625. In so far as the compensation is concerned, the Court notes that all applicants in the present case received State compensation as victims of the terrorist attack (see paragraphs 418-419 above). In addition, a humanitarian effort resulted in the local administration collecting and distributing additional compensation to the affected families (see paragraphs 420-421 above). The amounts of compensation varied depending on the individual circumstances, but they were extended to all victims of the terrorist attack of 1 to 3 September 2004. The Court has already noted that it is impossible to speculate on the exact circumstances of the victims’ individual deaths and injuries. Given that the situation arose from a terrorist attack and led to numerous casualties, the authorities’ choice to allocate compensation on the basis of the degree of damage suffered, regardless of the outcome of the criminal investigation, appears to be victim-based and thus justified. The Court also notes that the victims were granted procedural status in the criminal trial of Mr Kulayev, where civil damages could be sought. The Court acknowledges the different nature of the awards, but considers that any awards to the victims should take into account the overall situation and the compensation allocated under the no-fault scheme. Unlike many other cases adjudicated under Articles 2 and 13 of the Convention in respect of Russia, the Court is unable to conclude that the lack of progress on some important aspects of criminal investigation no. 20/849, which have resulted in the above findings of a violation of the procedural aspect of Article 2, precluded the applicants from obtaining compensation for the damage suffered by them. 626. Furthermore, the Court notes the efforts to commemorate the grief and help the entire community of Beslan reconstruct itself after the devastating events (see paragraphs 422-424 above). These measures, while not directly relevant to the applicants’ claims that they were unable to claim damages from the State officials, should be seen as part of general measures aiming to benefit all those who had been affected by the events of 1 to 3 September 2004, without distinction (see, in a similar vein, the Court’s view of the importance of general measures in the context of solving disappearances in post-war Bosnia and Herzegovina, for example, in Zuban and Hamidovic v. Bosnia and Herzegovina (dec.), nos. 7175/06 and 8710/06, §§ 30-35, 2 September 2014). 627. Next, as is clear from the case-law cited above, in cases involving allegations under Article 2 of the Convention, in addition to compensation, Article 13 requires a thorough and effective investigation capable of leading to the identification and punishment of those responsible, including effective access for the complainant to the investigation procedure. It is true that the violations found above in respect of the respondent State, such as the failure to minimise the risks of the known danger to life, to plan and control the operation with the aim of minimising accidental harm to civilians and the use of indiscriminate weapons in breach of Article 2, were not properly elucidated within the framework of the criminal proceedings, notably case no. 20/849. At the same time, neither Article 13 nor any other provision of the Convention guarantees an applicant a right to secure the prosecution and conviction of a third party or a right to “private revenge” (see, mutatis mutandis, Perez v. France ([GC], no. 47287/99, §§ 70-71, ECHR 2004‑I). What appears to be of special importance under Article 13, apart from the compensation mechanisms, is access to information and thus the establishment of truth for the victims of the violations alleged, as well as ensuring justice and preventing impunity for the perpetrators. Access to information and the effectiveness of any ensuing remedies are interlinked, as at the heart of a complaint under Article 13 lies the applicant’s inability “to use any remedy available to him for obtaining relief, given that the knowledge necessary to elucidate facts ... is often in the sole hands of State officials or authorities” (see Öneryildiz, cited above). 628. Turning to the circumstances of the present case, the Court notes that, in addition to the criminal investigation no. 20/849 into the terrorist act, a number of other proceedings took place. The trial of Mr Kulayev resulted in his conviction and life imprisonment, and a significant amount of information was collected and made available within the framework of those proceedings. That process was not directly concerned with the actions of any State agents, but the accessibility of this information to the victims allowed them and the public in general to draw a more complete picture of the events, including understanding the officials’ roles (see paragraph 353 above). This information was, at least partially, incorporated into the proceedings in case no. 20/849. Furthermore, as regards the prevention of the terrorist act, two sets of criminal proceedings against the officers of the police in Ingushetia and in North Ossetia resulted in them being charged and put on trial. Again, the information and evidence collected in the course of those proceedings contributed to the establishment of the facts and the identification of the people responsible for certain aspects of the events (see paragraphs 261, 262, 354-368 above). 629. Lastly, the Court notes the extensive and detailed studies of the events by members of the parliamentary commissions of the North Ossetian Parliament and State Duma, including a separate report prepared by one of the latter’s members, Mr Savelyev. These reports played an important role in collecting, organising and analysing the scattered information on the circumstances of the use of lethal force by State agents (see paragraphs 408, 410, 411 above), as well as other important aspects of the events. 630. The Court has previously explained that the work of parliamentary commissions and other bodies tasked with establishing “historical truths” cannot be viewed as procedural acts able to satisfy the requirements of Articles 2 and 3 of the Convention, being incapable of leading to the identification and punishment of those responsible or to an award of compensation to the injured party (see Janowiec and Others, cited above, § 143). Even where a report by a parliamentary commission had been relatively specific in laying accusations of corruption against high political figures, the Court found that it did not give rise to a breach of presumption of innocence, given that the commission had not been concerned with the applicant’s guilt or innocence in criminal proceedings (see Rywin v. Poland, nos. 6091/06, 4047/07 and 4070/07, §§ 213-17, 18 February 2016). Similarly, in the present case, the Court has not viewed the work of parliamentary commissions as complying with the procedural obligations under fundamental rights. 631. At the same time, the Court finds that the parliamentary commissions in the present case ensured important advances in securing, collecting and publicising information about the aspects of the terrorist attack and the authorities’ response that were overlooked or insufficiently examined by the investigation. It notes the nuanced examination by the North Ossetian commission of questions on prevention of the terrorist act, the functioning of the OH, the actions of the security forces and detailed statistical information about the victims and fighters (see paragraphs 374 et seq. above). The Federal Assembly commission obtained first-hand testimonies from the most senior officials involved, and formulated its own conclusions, some directly relevant to the applicants’ complaints (see paragraphs 398-401 above), as well a number of general measures to be taken. Lastly, a major effort to elucidate the minutiae about the use of force and other questions was undertaken by a member of the State Duma, Mr Savelyev, himself an expert in explosions and ballistics (see paragraphs 402 et seq. above). This ensured access by the applicants, and the public in general, to knowledge about the aspects of the serious human rights violations that would have otherwise remained inaccessible. In this sense, their work could be regarded as an aspect of effective remedies aimed at establishing the knowledge necessary to elucidate the facts, distinct from the State’s procedural obligations under Articles 2 and 3 of the Convention. 632. On the basis of the above, and in so far as the issues complained of have not been covered by the above findings under the procedural aspect of Article 2, the Court finds no breach of Article 13 of the Convention. V. APPLICATION OF ARTICLES 41 AND 46 OF THE CONVENTION 633. 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.” 634. Article 46 of the Convention provides: “1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.” A. Non-monetary measures 635. The first group of applicants sought that an investigation compliant with the requirements of Article 2 of the Convention be conducted into the events. They were of the opinion that no previous case was comparable to theirs in terms of the number of victims, including children, for whose deaths and injuries the authorities of the respondent Government had been responsible, whether by act or omission. Even if the investigation had failed in effectively establishing the facts, those responsible, acting under the Government’s control, were still easily identifiable and could be brought to justice if there was a fresh investigation into the facts of the present case. Independently from the request to have a new investigation, the applicants asked that domestic criminal case file no. 20/849 be fully disclosed to them. 636. The Government did not make any comments on this request. 637. The Court considers that this claim falls to be examined under Article 46 of the Convention, which, as interpreted in the light of Article 1, imposes on the respondent State a legal obligation to implement, under the supervision of the Committee of Ministers, appropriate general and/or individual measures to secure the right of the applicants which the Court has found to have been violated. The Court points out that, in the context of the execution of judgments in accordance with Article 46 of the Convention, a judgment in which it finds a breach imposes on the respondent State a legal obligation under that provision to put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach. If, on the other hand, national law does not allow – or allows only partial – reparation to be made for the consequences of the breach, Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate. It follows, inter alia, that a judgment in which the Court finds a violation of the Convention or its Protocols imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court and to make all feasible reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (see Assanidze v. Georgia [GC], no. 71503/01, § 198, ECHR 2004‑II). 638. As the Court’s judgments are essentially declaratory, the respondent State remains free, subject to the supervision of the Committee of Ministers, to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court’s judgment (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000‑VIII). However, exceptionally, with a view to helping the respondent State to fulfil its obligations under Article 46 of the Convention, the Court will seek to indicate the type of measure that might be taken in order to put an end to a situation it has found to exist. In a number of exceptional cases, where the very nature of the violation found was such as to leave no real choice between measures capable of remedying it, the Court has indicated the necessary measures in its judgments (see, inter alia, Abuyeva and Others, cited above, § 237, and the cases cited therein; Nihayet Arıcı and Others v. Turkey, nos. 24604/04 and 16855/05, §§ 173-76, 23 October 2012; and Benzer and Others v. Turkey, no. 23502/06, § 217, 12 November 2013). 639. In the present case, the Court notes its findings under Article 2 of the Convention: firstly, the failure to take preventive measures that should have been able, when judged reasonably, to prevent or minimise the known risk to life; secondly, that the investigation into the events was not effective in that it was not capable of leading to a determination of whether the force used had or had not been justified in the circumstances, and the public scrutiny requirement was breached; thirdly, that the operation involving use of lethal force was not planned and controlled so as to ensure that any risk to life was minimised; and, fourthly, that the use of lethal force by the State agents, and in particular indiscriminate weapons, was more than absolutely necessary, and the weakness of the applicable legal framework contributed to the latter finding. 640. It is incumbent on the Committee of Ministers, acting under Article 46 of the Convention, to address the issue of what may be required of the respondent Government by way of compliance, through both individual and general measures (see also McCaughey and Others v. the United Kingdom, no. 43098/09, § 145, ECHR 2013). In the Court’s view, the above found violations should be addressed by a variety of both individual and general measures consisting of appropriate responses by the State institutions, aimed at drawing lessons from the past, raising awareness of the applicable legal and operational standards and deterring new violations of a similar nature. Such measures could include further recourse to non-judicial means of collecting information and establishing the truth, public acknowledgement and condemnation of violations of the right to life in the course of security operations, and greater dissemination of information and better training for police, military and security personnel in order to ensure strict compliance with the relevant international legal standards (see Abakarova, cited above, § 112). The prevention of similar violations in the future should also be addressed in the appropriate legal framework, in particular ensuring that the national legal instruments pertaining to large-scale security operations and the mechanisms governing cooperation between military, security and civilian authorities in such situations are adequate, as well as clearly formulating the rules governing the principles and constraints of the use of lethal force during security operations, reflecting the applicable international standards (see paragraphs 598-599 above). 641. With respect to the failure to investigate, the Court notes that investigation no. 20/849 is still open at national level, and that a number of important factual findings have been made in the context of other relevant proceedings. Having regard to these documents, the Court considers that the specific measures required of the Russian Federation in order to discharge its obligations under Article 46 of the Convention must be determined in the light of the terms of the Court’s judgment, and with due regard to the above-mentioned conclusions in respect of the failures of the investigation carried out to date. In particular, this investigation should elucidate the main circumstances of the use of indiscriminate weapons by the State agents and evaluate their actions in consideration of all the known facts. It should also ensure proper public scrutiny by securing the victims access to the key documents, including expert reports, which had been crucial for the investigation’s conclusions on the causes of death and the officials’ responsibility (see paragraphs 521-526 and 534-537 above). B. Damage 1. The first group of applicants 642. Each applicant in the first group claimed an award in respect of non-pecuniary damage in connection with the violations found. They left the amounts to the Court’s discretion. 643. Those who had suffered injuries sustained during the security operation claimed damages related to the costs of their medical treatment and for loss of income due to their disabilities. They argued that, while some of their medical expenses had been covered by public funds or charities, those payments had not been made as a consequence of the unlawfulness of the actions of the State agents. The applicants invited the Court to make awards based on the severity of the injuries. Other applicants also claimed for future loss of earnings owing to the deaths of actual or future breadwinners. They submitted a detailed breakdown of the sums claimed in respect of pecuniary damage, based on the above considerations, the applicable retirement ages and the average income in North Ossetia in 2014. 2. The second group of applicants 644. The second group of applicants stressed that they should receive an award in respect of non-pecuniary damage for the violations found, in view of the unprecedented suffering they had encountered. The applicants stressed that their suffering had been enhanced by complete disappointment and loss of faith in the justice system and the entire State, which could not protect the most precious part of society – its children. No one among the officials had been found responsible for the failure to protect the victims from the terrorist attack, or for the problems during the operation and the investigation. They asked the Court to decide on the awards that would be commensurate with their suffering. 645. This group of applicants also claimed an award in respect of pecuniary damage for future loss of earnings owing to the deaths of actual or potential breadwinners. They used a similar method as the first group of applicants and submitted a table detailing their alleged losses. 3. The Government 646. The Government reiterated that they had already submitted detailed information to the Court about the monetary compensation and non-monetary services provided to all applicants, their relatives and all victims of the terrorist act. They argued that, in the circumstances, the finding of a violation of the Convention would be sufficient just satisfaction. They stressed that the amounts of compensation provided by the State to the victims of the terrorist attack had exceeded the maximum that could be awarded by the Court for just satisfaction. 647. In so far as the applicants claimed an award in respect of pecuniary damage, the Government again drew the Court’s attention to the monetary and non-monetary compensation and services provided to all the applicants and other victims of the terrorist acts. All victims, including the applicants, had been provided with medical assistance and medical treatment in the years following the events. They had been offered a wide range of social services and non-monetary compensation. Taking into account the scope and amount of help provided by the State to all the victims, the Government considered that obliging the State to pay the applicants an additional amount of compensation would amount to “double responsibility” under international law. In any event, the Government asked the Court to apply an individualised approach in assessing the sums in respect of pecuniary damage claimed by the applicants. 4. The Court’s assessment 648. In so far as the applicants claimed an award in respect of pecuniary damage for their medical treatment, disabilities and loss of income from actual and future breadwinners, the Court reiterates that there must be a clear causal connection between the damage claimed and the violation of the Convention. Noting the absence of individual fact-finding about the circumstances of the deaths and injuries caused and the extensive schemes for medical and social rehabilitation put in place for the victims of the terrorist act, the Court does not find it appropriate in the circumstances of this case to make an award under this head. 649. In so far as the applicants claimed an award in respect of non-pecuniary damage, the Court reiterates that it has found a number of violations under Article 2 of the Convention. These violations relate to the authorities’ response to the terrorist attack and their failure to effectively investigate the State agents’ actions. Having regard to these findings, other steps taken with the aim of compensating and rehabilitating the victims of the terrorist act (see paragraphs 418-424 above), the seriousness of the damage caused, family links with the deceased and other individual circumstances, and acting on an equitable basis, the Court awards the amounts as detailed in the Appendix below. C. Costs and expenses 1. The first group of applicants 650. The first group of applicants claimed reimbursement of the costs and expenses incurred in the domestic proceedings and in the proceedings before the Court. Three applicants, Mrs Ella Kesayeva, Mrs Emiliya Bzarova and Mrs Svetlana Margiyeva, represented themselves and other applicants in this group. They claimed a joint award of 97,900 euros (EUR), corresponding to 1,958 hours of work at a rate of EUR 50 per hour. The applicants also claimed EUR 9,190 for postal expenses incurred by the applicant Mrs Zhenya Tagayeva. In respect of postal expenses, the applicants submitted supporting documents dating between September 2012 and April 2014, totalling EUR 792. Nine applicants claimed a joint award of EUR 3,958 for travel expenses incurred by them in attending the hearing in Strasbourg on 14 October 2014 and submitted supporting documents in this respect. 651. The applicants’ representative Mr Koroteyev claimed EUR 604 for the travel expenses incurred by him in going to Beslan and Strasbourg in 2013, 2014 and 2015; EUR 2,200 for travelling time at a rate of EUR 50 per hour (forty-four hours); and EUR 13,600 for 136 hours of legal work at a rate of EUR 100 per hour. Mr Koroteyev’s total costs were thus estimated at EUR 15,800. Mrs Jessica Gavron (also on behalf of other unnamed EHRAC staff in London) claimed a total of 28,950 pounds sterling (GBP) for 193 hours of legal work at a rate of GBP 150 per hour. They submitted a detailed breakdown of work done. 652. The applicants also claimed reimbursement of the administrative and translation costs. Translation costs of documents at a rate of GBP 50 per 1,000 words amounted to GBP 6,270 and EUR 61. These costs were supported by invoices from the translators. Mrs Gavron also claimed EUR 1,011 for the travel costs incurred by her in going to Strasbourg in 2014 and 2015 to carry out joint work with Mr Koroteyev. Under this heading the applicants also claimed reimbursement of the expenses for the preparation of two expert reports submitted by them, totalling GBP 1,920. To sum up, the costs and expenses claimed by the representatives amounted to GBP 37,140 and EUR 17,476. The applicants asked that the entire award for the representatives’ costs and expenses be paid to EHRAC’s bank account in the UK. 2. The second group of applicants 653. The second group of applicants claimed reimbursement of the costs and expenses incurred in the domestic proceedings and in the proceedings before the Court. Mr Trepashkin claimed EUR 208 for the travel costs incurred by him in going to Beslan in 2014 and EUR 800 for sixteen hours of travelling time to Beslan at a rate of EUR 50 per hour. He also claimed EUR 23,600, corresponding to 236 hours of legal work at a rate of EUR 100 per hour. In total, the second group of applicants claimed EUR 24,608 for the legal costs and expenses incurred by Mr Trepashkin. 654. Mr Knyazkin claimed EUR 208 for the travel costs incurred by him in going to Beslan in 2014; EUR 644 for the travel costs incurred by him in going to Strasbourg in 2014 (no supporting documents were submitted); EUR 1,300 for the travel costs and his hotel accommodation during the hearing in Strasbourg in October 2014; EUR 3,200 for travelling time of 64 hours at a rate of EUR 50 per hour; and EUR 23,900 for a total of 239 hours of legal work at a rate of EUR 100 per hour. In total, the second group of applicants claimed EUR 28,400 for the legal costs and expenses incurred by Mr Knyazkin. The applicants submitted a detailed breakdown of the costs and expenses incurred. 3. The Government 655. In so far as the applicants claimed reimbursement of costs and expenses, the Government were of the opinion that the sums claimed were not reasonable as to quantum. The applicants had retained several representatives during the proceedings, which increased costs. The amounts spent by a group of applicants attending the oral hearing on the admissibility and merits of the present case were not justified since the applicants had been represented and had not participated in the proceedings themselves. 4. The Court 656. The Court reiterates that only such costs and expenses as were actually and necessarily incurred in connection with the violation or violations found, and reasonable as to quantum, are recoverable under Article 41 of the Convention (see, for example, Sahin v. Germany [GC], no. 30943/96, § 105, ECHR 2003‑VIII). In so far as the applicants claimed for costs and expenses in respect of the work carried out by themselves on this case, the Court reiterates that it cannot make an award in respect of the hours applicants themselves spend working on their case, as this time does not represent the costs actually incurred by them (see Steel and Morris v. the United Kingdom, no. 68416/01, § 112, ECHR 2005‑II). 657. In so far as the applicants claimed reimbursement of the expenses for travelling to the hearing in Strasbourg where they had been represented, the Court finds that these costs were not necessary for the proceedings before the Court and rejects the claim. 658. Turning to the remaining costs and expenses claimed, the Court notes that the case was extremely complex, in view of the number of applicants involved, the complexity of the factual and legal issues covered and the geographical distance between the representatives and the applicants. On the other hand, it notes that Mr Koroteyev and Mrs Gavron joined the proceedings after the exchange of the first set of observations had taken place, that some of the complaints were declared inadmissible and that some of the costs were not justified. Making its own estimate based on the information available, the Court considers it reasonable to award the following amounts: - EUR 792 in postal expenses, to be paid directly to applicant Mrs Zhenya Tagayeva; - EUR 45,000 to the first group of applicants, for all the costs and expenses claimed, to be paid to EHRAC; - EUR 20,000 to Mr Trepashkin and EUR 23,000 to Mr Knyazkin, for all the costs and expenses claimed by the second group of applicants; to be paid directly into the respective representatives’ accounts. D. Default interest 659. 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 1. Declares, unanimously, the complaint by Mr Alikhan Dzusov (applicant no. 351) inadmissible; 2. Holds, unanimously, that the deceased applicants’ heirs have standing to continue the present proceedings in their stead (see Appendix); 3. Holds, unanimously, that there has been a violation of Article 2 of the Convention, in respect of the positive obligation to prevent the threat to life, in respect of all applicants; 4. Holds, unanimously, that there has been a violation of Article 2 of the Convention, in respect of the obligation to carry out an effective investigation, in respect of all applicants; 5. Holds, by five votes to two, that there has been a violation of Article 2 of the Convention, in respect of the obligation to plan and control the operation involving the use of lethal force so as to minimise the risk to life, in respect of the applicants in applications nos. 26562/07, 14755/08, 49380/08, 21294/11 and 37096/11; 6. Holds, by five votes to two, that there has been a violation of Article 2 of the Convention in that the use of lethal force by the State agents was more than absolutely necessary, in respect of the applicants in applications nos. 26562/07, 14755/08, 49380/08, 21294/11 and 37096/11; 7. Holds, by six votes to one, that there has been no violation of Article 13 of the Convention; 8. Holds, unanimously, (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the amounts as specified in the Appendix. These payments are to be converted into the currency of the respondent State (except the award of costs and expenses to the first group of applicants) at the rate applicable at the date of settlement, plus any tax that may be chargeable; (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; 9. Dismisses, unanimously, the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 13 April 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Abel CamposLinos-Alexandre SicilianosRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinions of Judges Hajiyev, Pinto de Albuquerque and Dedov are annexed to this judgment. L.A.S.A.C. JOINT PARTLY DISSENTING OPINION OF JUDGES HAJIYEV AND DEDOV 1. We regret that we cannot agree with the majority that there was a violation of Article 2 of the Convention in respect of the obligation to plan and control the operation involving the use of lethal force so as to minimise the risk to life, and consider that the use of lethal force by the State agents was more than absolutely necessary. A. Positive obligation to prevent the threat to life 2. We take the view that the most important issue in the present case is positive obligation of the State to prevent any threat to life. We agree that there was a violation of the Convention on that point. Notwithstanding that the authorities knew that the threat was real, and that the terrorist group had gathered in a forested area, training and preparing for their next attack (see paragraphs 16, 19 and 132-35 of the judgment), no reasonable preventive measures had been taken by the authorities to locate the terrorists, isolate them, prevent their moving to any other populated area and destroy them. Also, no measures had been taken in Beslan, and the terrorists had reached the school unhampered. B. Planning and control 3. We agree with the Court’s conclusion that the situation was exceptional. The Court has to acknowledge the difficulties that the authorities faced in managing the security operation. Indeed, the situation where more than 1,000 hostages were captured in the school was beyond the control of the authorities. It took time to realise that a peaceful resolution of the problem and the release of all hostages were not, in fact, possible. 4. The Court and the domestic investigation confirmed that the first explosions had occurred unexpectedly. We therefore accept the Government’s observation that the authorities were under tremendous pressure and that their control over the situation was minimal. The situation was aggravated by a number of factors: the majority of hostages were children; the terrorists had lost the so-called second Chechen war and demonstrated that they were ready to die together with the hostages (see paragraph 451 of the judgment); some of them were suicide-bombers; they also fixed explosives around the hostages, so that they could all be killed immediately. The terrorists had been much better prepared and were more resistant to releasing the hostages than in the Nord-Ost theatre in Moscow two years earlier (see Finogenov and Others v. Russia, nos. 18299/03 and 27311/03, ECHR 2011 (extracts)). It was the last attack on such a massive scale. It is hard to compare the scale of the terrorist attack in the present case with any precedent. 5. We are of the view that due to all these factors enormous emotional and psychological pressure was imposed on those officials responsible for planning and controlling the operation (as if “control” were an appropriate term in the context of fierce, almost hand-to-hand fighting). However, the majority has concluded that “the operation involving use of lethal force was not planned and controlled so as to ensure that any risk to life was minimised” (see paragraphs 562, 589, 611 and 639 of the judgment). This conclusion is general in character and it does not take into account the objective impossibility of controlling such a risk. The hostages’ vulnerability was, rather, a reason for the authorities to take prompt action to release them. 6. We ought to mention that in the Finogenov and Others case the use of gas had been a significant part of the planning process, and had pursued certain aims, namely to avoid armed fighting with the strict minimum application of lethal force, and therefore to reduce the risk to hostages’ lives (see Finogenov and Others, cited above). The present case is very different because it is impossible to pinpoint any action taken by the authorities which could have been planned in advance and subsequently controlled, especially during the first few hours after a series of explosions, apart from the organisation of medical assistance for surviving hostages, but this issue lies outside the scope of the complaints in the present case. 7. After the first explosions the hostages rushed out of the building, the terrorists rained bullets on them, State agents, under fire and with the help of parents and relatives of hostages, organised the evacuation while at the same time exchanging fire with the terrorists. The latter were also armed, inter alia, with indiscriminate weapons and heavy ammunition capable of destroying the roof of the building and causing mass killing (see, for example, paragraphs 140-42 of the judgment). The Court confirmed the gravity and complexity of the situation, in particular, in paragraphs 564, 606 and 607 of the judgment. In the light of those considerations, we would prefer not to examine the issue of planning and control of the operation, because the situation was extremely complex, and a clear finding of a violation or no violation is almost impossible. 8. Again, in the Finogenov and Others case the deficiencies on the part of the authorities were clear enough (the rescue of the hostages affected by the gas had not been properly organised, leading to the fatal consequences) (see Finogenov and Others, cited above). In the present case, the Court has found a violation solely because of the inability of the command structure in charge of the operation to maintain clear lines of command and accountability and to coordinate and communicate the important details relevant to the rescue operation (see paragraph 574 of the judgment). In support of this conclusion, the majority referred, in particular, to the absence of any records of the OH meetings and decisions adopted which made it impossible to understand how the most important decisions had been taken and communicated with the principal partners (see paragraph 570). In our view, such a general wording cannot itself serve as a basis for finding a violation of the Convention. 9. In our view, the Court’s conclusion on the violation of the Convention regarding the planning and control over the security operation concerns the positive obligation of the State to prevent the threat to life, which covers not only the presentation of the terrorist attack, but also the appropriate measures to be taken during the security operation to save the hostages’ lives (see, for example, Finogenov and Others, cited above, §§ 208 and 237). C. Use of lethal force 1. Prima facie complaint 10. The majority have found that there was evidence establishing a prima facie complaint that the State agents used indiscriminate weapons on the premises while the terrorists and hostages were still intermingled. The Court then comes to the conclusion that it seems to have been impossible to avoid or at least minimise the risk to the hostages (see paragraph 589 of the judgment). It is difficult to agree with this conclusion for the following reasons. 11. The conclusion is twofold: (1) the State agents used indiscriminate weapons on the premises while the terrorists and hostages were still grouped together; (2) the authorities did not ensure that there were no hostages in the premises under attack. These two factors are, in our view, mutually contradictory, as the majority shows different levels of certainty in its approach to the prima facie evidence. 12. In our view, it is doubtful whether the witness statements referred to in paragraph 523 of the judgment could be used as a prima facie evidence. Not all those statements gave precise details concerning the time and the exact targets. The domestic investigation and the Government’s observations provided the Court with further testimonies confirming that immediately after the first explosions lethal force had been used against the terrorists who had fired at hostages escaping from the gymnasium, and other terrorists hiding in other sections of the building (on the upper floor of another part of the building, see paragraph 76 of the judgment). It was established that before the explosions all the hostages had been concentrated in the gymnasium, where deaths were caused by three explosions, fire, destruction of the roof and gunfire from the terrorists. It is therefore unlikely that the majority of the hostages died as a result of the indiscriminate lethal force used by the State agents elsewhere on the premises. 13. Although the Government stated that none of the hostages was injured or killed by the lethal force used by the State agents, the Court disagreed on whether the Government had provided a “satisfactory and convincing explanation” of the use of force and the circumstances of the deaths and injuries complained of by the applicants (see paragraph 590). However, it is difficult to take either of the above-mentioned positions in the absence of any objective and detailed evidence produced by the applicants or the Government. 14. We could admit that it would be almost impossible, in practice, for the investigation to establish whether the death of the hostages had been caused by the State agents or by the terrorists, since their ammunition was very similar. Yet even if the authorities did not take the necessary investigative steps to establish the responsibility of the security forces, this should be decided in the framework of the effectiveness of the investigation, rather than of the use of indiscriminate lethal force. We take the view that the Court cannot replace the domestic authorities in establishing this fact thirteen years after the events. 15. We ought to accept that the prima facie complaint is not well founded because the evidence collected under the domestic proceedings was very controversial (see paragraph 523, with further references). There is solid evidence to refute the applicant’s allegations (see, for example, paragraph 587). It was confirmed, or at least not excluded, that the indiscriminate lethal force was applied after 3 p.m., that is to say after the evacuation was completed (see paragraphs 142, 293, 294, 298 and 300 of the judgment). 16. Also, contrary to the general principles, the link between the evidence and the claim lacked any element of objectivity. For example, in line with the Court’s usual practice, the involvement of State agents is supported: (1) in cases of disappearance: by the fact that the abduction had taken place during a security operation or in the vicinity of a police department, or the car transporting the perpetrators had passed a police road-block without any difficulties; (2) in cases of illegal transfer (see, for example, Savriddin Dzhurayev v. Russia, no. 71386/10, 25 April 2013): by the fact that the authorities controlled the borders by means of passport, transportation and customs checks limiting the opportunities for crossing the State border unnoticed. 17. In the present case, the fact that the State agents used lethal force does not mean that they used it when the hostages and terrorists had been intermingled and the hostages had been fatally affected by that force. The probability of the above-mentioned consequences could be accepted on the basis of additional objective evidence, but such a link was not established by the Court. It should therefore be ascertained whether the State agents had been in a position to ensure whether the premises under attack were occupied solely by terrorists, and whether the use of force was absolutely necessary. 2. Absolutely necessary 18. The majority concluded that although the decision to resort to lethal force was justified in the circumstances, Russia had breached Article 2 of the Convention by using greater lethal force than had been necessary (see paragraphs 611 and 639 of the judgment). In other words, in the Court’s view, the use of force had been excessive. In particular, the Court refers to the total quantity of ammunition used by State agents during the storming of the building (see paragraph 608). 19. We agree with the Court that the security forces used a wide array of weapons, some of them extremely powerful and capable of inflicting heavy damage on the terrorists and hostages, without distinction (see paragraph 608). This assumption, however, is theoretical and needs to be examined on the basis of the case file. 20. Although the majority has found the explanations of the Government unsatisfactory, the case file does contain enough evidence to confirm that the force was applied under the control of the State agents and directly against the terrorists. In the majority’s view, it remains unexplained how the agents employing lethal force were able to verify the absence of hostages in the premises under attack (see paragraphs 552 and 588 of the judgment). In our view, the conclusion that the use of force was not absolutely necessary contradicts the fact that the agents (who testified to the investigators) honestly believed that there were no hostages or that that there were unlikely to be any hostages. They confirmed that they had not seen or heard anything that would point to the presence of any hostages. Also, the records of the site examinations and video material showed that no dead hostages had been found in the places where the terrorists had been killed by heavy arms and indiscriminate weapons (see paragraph 142). 21. The failure of the commander of the Special Services Centre to testify (see paragraph 605) does not mean that the lethal force which he had approved had been applied improperly. If the Court confirms that in the present case the situation was exceptional, complex and dynamic (see paragraph 606), it has to admit that the commander exercised control over the operation in an effective manner: the lethal force was applied for a variety of tasks (for example, the T-72 tank had been used to make openings in the walls); the operation was split between the evacuation and the storming of the building, and mass indiscriminate lethal force was only used during the final stage of the security operation. 22. That means that the instructions were given before the storming, and that there is a policy on storming premises in the presence of hostages which sets out detailed instructions, depending on circumstances, on the tactics and strategy for releasing hostages. This policy is vital for training, and should not necessarily be disclosed to the public, for security reasons. The Government referred to the Suppression of Terrorism Act, Section 2 (c) of which provides that the State must, as far as possible, keep the technical methodology of anti-terrorist operations and the identities of those involved in them secret (see paragraph 458). 23. This renders nugatory the whole section of the judgment on the legal framework (see paragraphs 592-99 and 640 of the judgment). The Court stated that the legal framework should be appropriate so as to clearly formulate the rules governing the principles and constraints of the use of lethal force during security operations. As mentioned below, the domestic law already contains the relevant principles. The principles of international law set out in the judgment apply in Russia too. In our view, further improvements are needed in terms of putting those principles into practice. 24. As regards the satisfactory explanations provided by the Government, the criminal file contains descriptions of actions conducted during the storming of the building which show that the rescue operations covered other premises and confirm that the authorities ensured that no hostages remained in the building before using indiscriminate lethal force: “a group of servicemen had entered the weights room and evacuated from it several women with small children”; “their (the security agents’) movements inside the building had been slowed down by... the presence of hostages whom the terrorists had been using as human shields”; “the terrorists had used automatic weapons, hand grenades and portable grenade launchers, while the FSB forces had been constrained to fire single shots, to avoid excessive harm to the hostages” (see paragraphs 140-43 of the judgment). While the State agents were present in the building during the storming, it would have been reasonable not to use indiscriminate weapons without proper coordination by the agents who were inside the building not far from the hostages and terrorists. 25. The majority noted that the security forces had used a wide array of weapons, some of them extremely powerful and capable of inflicting heavy damage on both the terrorists and the hostages, without distinction (see paragraph 608). The majority did not take account of the fact that the indiscriminate lethal force was used much less intensively than the ordinary weapons and that the security operation relied mainly on ordinary weapons. As regards the total number of weapons, it would be difficult to use such statistics to conclude that the use of force had been excessive. We would suggest that this issue is much more complex, as it requires detailed assessment of the concrete circumstances of the situation which may include, in particular: the total arsenal of weapons belonging to and used by the terrorists, the safety of their positions during the storming operation, difficulties with the identification of hostages during the storming operation, possibility of coordinated gunfire minimising the threat to hostages, and the proportion of losses (dead and injured) among the State agents and the terrorists. 26. We should remember that the terrorists had been heavily armed and had also used indiscriminate lethal force against the hostages and the State agents. It should be noted that, unfortunately, the terrorists used lethal force very effectively. The impugned events occurred after eight years of war in the region, in which about 20,000 State agents have died. The terrorists were very experienced and well-trained fighters. In those circumstances it would be beyond the Court’s competence to assess whether the use of lethal force was necessary or not. 27. We conclude that the use of force was absolutely necessary, and it was applied as a last resort in exceptional circumstances in order to remove the actual threat. 3. Nature and tasks of the security operation 28. The Court has reiterated that “the primary aim of the operation should be to protect lives from unlawful violence. The massive use of indiscriminate weapons stands in flagrant contrast with this aim” (see paragraph 609). According to the Court, the operation was security-oriented, geared to saving lives and restoring law and order. Therefore, apart from the danger presented by the terrorists, the commanders had to consider the lives of over 1,000 people held by them, including hundreds of children. The hostages, who had been left exhausted by more than fifty hours of detention in stressful conditions, without access to food or water, clearly constituted a vulnerable group (see paragraph 607). 29. The Government responded that the lethal force had been used “directly and precisely” against the terrorists, with a view to eliminating the threat they had posed to the hostages and others. The Russian Government also relied on the provisions of the Suppression of Terrorism Act as the legal basis of the use of force. This Act refers to the following principles quoted in paragraph 457: “(a) priority should be given to the interests of people endangered by a terrorist act; (b) the State should make minimal concessions to terrorists; ...” 30. These principles set out the priorities of the security operation, and the first priority is the life of the hostages. The majority, however, have paid scant attention to those principles. Instead, the Court stated that “the operational command should have been able to take rapid and difficult decisions about the means and methods to employ so as to eliminate the threat posed by the terrorists as soon as possible” (see paragraph 606). This makes the majority’s position less clear. The Court failed to explain what kind of strategy should have been implemented: one geared to saving the hostages’ lives, or an effort to eliminate the threat posed by the terrorists. 31. This is a twofold task, and the priorities are interdependent, and therefore this issue of professional activity, including the tactics and the strategy governing security operations, should lie outside the scrutiny of the Court or any other judicial authority unless there is objective and non-controversial evidence that the innocent people died as a result of errors committed during the security operation (compare with the case Armani Da Silva v. the United Kingdom, no. 5878/08, 30 March 2016) or of negligence (see the part of the judgment concerning the violation of a positive obligation in the present case). 32. If you compare the present case with Armani Da Silva, cited above, the difference might even be considered as setting double standards. In Armani Da Silva the Court agreed with the respondent Government that the Charlie agents had been informed, and they had honestly believed, that the person was a terrorist and they were in a situation of self-defence. The Court did not accept the arguments of the applicant who claimed that the Charlie agents should have verified first whether he was a terrorist or not before using lethal force. However, the Charlie agents were not prosecuted, and the Court did not find that the agents were obliged to carry out such verification as a part of the security operation. In the present case, the Court imposed that obligation on the national authorities under both the material and the procedural limbs of Article 2 of the Convention. 33. Due to the complexity and high dynamism of the situation, the conclusion on the use of lethal force has to be based, in our view, on a very complex analysis. The analysis would take account of the facts that the whole situation was exceptional, that all the surviving hostages had been concentrated in the gymnasium, that some of the hostages had been killed by the terrorists two days before the storming and kept on other premises, that the hostages tried to escape from the building rather than hide inside it, that the storming and the evacuation occurred simultaneously, that it was objectively impossible to halt the storming and to allow the terrorists to leave the school in order to prevent further killings, that it was difficult to assess how many terrorists were actually in the building and how many were required to control the whole building with more than 1,000 hostages, that the agents should have had far greater resources to eliminate the terrorists, and that during police operations (and it was certainly a police operation because of the hostages) State agents always face the problem of terrorists hiding behind the hostages. Accordingly, we believe that it would have been sufficient to find that the investigation had not been effective. PARTLY DISSENTING OPINION OF JUDGE PINTO DE ALBUQUERQUE 1. I voted with the majority as regards the procedural limb of Article 2 (see paragraphs 495 to 540 of the judgment), the planning and control of anti-terrorist operations (see paragraphs 541 to 575 of the judgment) and the use of lethal force in anti-terrorist operations (see paragraphs 576 to 612 of the judgment). In this regard, I am satisfied that the majority remained faithful to the Court’s standards on the use of lethal force in large-scale anti-terrorist operations, dealing with them as with any other law-enforcement operation and refusing to apply the paradigm of the law on armed conflicts to them. I am particularly satisfied that the Article 2 strict criteria of “absolute necessity” and lawfulness were applied to large-scale anti-terrorist operations (see paragraph 596 of the judgment). In other words, in interpreting Article 2, the Court clearly refused to yield to the temptation of reading into the Convention the standards of the law on armed conflicts with a view to lowering the level of protection of human rights enshrined in the Convention, as it did in Hassan v. the United Kingdom ([GC], no. 29750/09, ECHR 2014). In fact, the Court stated bluntly that the law on armed conflicts was not appropriate for the situation (see paragraph 599 of the judgment). 2. I also agree with the novel aspect of this judgment concerning the positive obligation to prevent terrorist attacks in the light of the evidence available to the public authorities of a real and imminent risk to the life of a group of unidentified people in Beslan and its surroundings (see paragraphs 478 to 494 of the judgment, and particularly paragraph 483). 3. Nonetheless, I disagree with the majority on the finding of no violation of Article 13 of the Convention. In my view, there has been a violation of Article 13, precisely because of the very convincing reasons enumerated by the majority for finding a procedural violation of Article 2. It is beyond my understanding that, after criticising in very strong terms the shortcomings of the domestic investigations, the majority could still not find a violation of Article 13. 4. The majority recognised the deficiencies of criminal investigation no. 20/849, which is still ongoing (see paragraphs 534 and 535 of the judgment). In addition, they acknowledged that the trial of Mr Kulayev, the only terrorist captured alive, was not concerned with the actions of State agents and therefore was not relevant for the purposes of Article 13 (see paragraph 629 of the judgment). Moreover, the majority themselves found that the victims’ relatives were not given timely access to relevant pieces of evidence, and especially to two reports produced in January 2007 and October 2007 (see paragraphs 532, 535 and 536 of the judgment).They also commended the work of the parliamentary commissions, but at the same time recognised that this kind of investigative work in a political scenario was not sufficient to meet the requirements of Article 13 (see paragraph 631 of the judgment). 5. Quite contradictorily, the majority found no violation of Article 13, on the basis of the fact that two sets of criminal proceedings had been brought against the police officers in Ingushetia and North Ossetia. Worse still, they took no account of the outcome of those proceedings. In the first case, the proceedings against the servicemen of the Pravoberezhny ROVD were discontinued owing to an amnesty (see paragraph 360 of the judgment). In the other, the servicemen of the Malgobek ROVD were acquitted (see paragraph 366 of the judgment). It is indeed surprising that the majority were willing to accept that an amnesty can put an end to an ongoing criminal investigation into criminal offences committed by public authorities during an anti-terrorist action which ended with more than 300 people dead. 6. By so doing, the majority disregarded the highly demanding standard set by paragraph 326 of the judgment in Mocanu and Others v. Romania ([GC], nos. 10865/09 and 2 others, ECHR 2014 (extracts)), and other concordant jurisprudence, with regard to the procedural limb of Articles 2 and 3 of the Convention. According to this standard, amnesties and pardons are not admissible in cases involving criminal conduct by State agents that infringes the rights protected by Articles 2 and 3 of the Convention. Furthermore, the majority made no mention of the doubtful acquittal of the defendants in the Malgobek ROVD case in spite of the evidence provided by the applicants. Finally, the majority did not consider the fact that both sets of civil proceedings brought by the victims were dismissed by the North Ossetia Supreme Court (see paragraphs 371 and 372 of the judgment). 7. In sum, this judgment should be praised for two main reasons. First, even in the face of the most egregious form of terrorism, a large-scale attack on a school which left more than 330 people dead, the Court stood by its principles on the interpretation of Article 2 of the Convention and did not yield to the temptation of applying the Hassan interpretative technique (cited above). The rhetoric of the “war on terror” does not yet permeate the interpretation of Article 2 of the Convention, as it has done with the interpretation of Article 5. Second, this judgment innovates, in so far as a positive obligation to prevent terrorist acts has been acknowledged in certain circumstances. Nevertheless, it is regrettable that, having found the investigations subsequent to the attack to be seriously deficient, the judgment did not find a violation of Article 13 as well. APPENDIX List of applications and awards made by the Court under Article 41 of the Convention Application title and number / Representative No. Appli- cant no. as per admissi-bility decision Applicant’s name (date of demise / legal successor) Date of birth Place of residence Details Article 41 awards non-pecuniary: loss of close relative – EUR 10,000 /per deceased; grave injuries – EUR 7,000; medium injuries – EUR 5,000; light injuries/hostage/escaped – EUR 3,000 Comments on Article 41 awards Tagayeva and Others v. Russia 26562/07 Mr K.N. KOROTEYEV ECHRAC/ Memorial Human Rights Centre 1. 1. Emma TAGAYEVA 04/02/1962 Beslan mother of deceased Betrozov Alan 1988 and deceased Betrozov Aslan 1990 EUR 20,000 2. 2. Lazar TAGAYEV (died on 14/06/2011) legal successor Alan TAGAYEV (4) 03/11/1933 Moscow grandfather of deceased Betrozov Alan 1988 and deceased Betrozov Aslan 1990 - awarded to applicant 1 - mother 3. 3. Zhenya TAGAYEVA 12/07/1927 Beslan grandmother of deceased Betrozov Alan 1988 and deceased Betrozov Aslan 1990 - awarded to applicant 1 - mother 4. 4. Alan TAGAYEV 14/02/1967 Beslan uncle of deceased Betrozov Alan 1988 and deceased Betrozov Aslan 1990 - awarded to applicant 1 - mother 5. 5. Valiko MARGIYEV 10/01/1949 Beslan father of deceased Margiyeva Elvira 1992 EUR 5,000 see applicant 6 - mother 6. 6. Svetlana MARGIYEVA 07/10/1959 Beslan hostage (grave injuries); mother of deceased Margiyeva Elvira 1992 EUR 13,000 see applicant 5 - father 7. 7. Taymuraz SALKAZANOV 19/05/1956 Beslan brother of hostage Margiyeva Svetlana 1959 (grave injuries) (6) and uncle of deceased Margiyeva Elvira 1992 - awarded to applicants 5 and 6 - parents 8. 8. Kazbek TSIRIKHOV 07/02/1964 Beslan father of deceased Tsirikhova Yelizavieta 1996 and uncle of hostage Tsirikhova Zalina 1993 (10) EUR 10,000 jointly with applicants 9 – mother and 10 -sister 9. 9. Zhanna TSIRIKHOVA 02/11/1967 Beslan hostage (medium grave injuries); mother of deceased Tsirikhova Yelizavieta 1996 and hostage Tsirikhova Zalina 1993 (10) EUR 5,000 also joint award with applicants 8 – father and 10 - sister 10. 10. Zalina TSIRIKHOVA 14/06/1993 Beslan hostage (medium grave injuries), sister of deceased Tsirikhova Yelizaveta 1996 EUR 5,000 also joint award with applicants 8 – father and 9 - mother 11. 11. Sergey BIZIKOV 26/01/1970 Moscow uncle of deceased Tsirikhova Yelizavieta 1996 - awarded to applicants 8, 9 and 10 – parents and sister 12. 12. Valeriy SALKAZANOV 26/02/1960 Beslan husband of deceased Salkazanova Larisa 1961, father of deceased Salkazanova Rada 2000 and hostage Salkazanov Ruslan (116) 1997 (grave injuries) EUR 20,000 jointly with applicant 116 - son 13. 13. Vera SALKAZANOVA (died on 23/04/11) legal successor Valeriy SALKAZANOV (12) 01/05/1934 Beslan hostage (medium gravity injuries); grandmother of deceased Salkazanova Rada 2000 EUR 5,000 awarded to applicant 12 14. 14. Boris ILYIN 12/02/1953 Beslan father of deceased Normatova Lira 1978, grandfather of deceased Bakhromov Amirkhan 2000 and deceased Normatova Zarina 1997 EUR 30,000 15. 15. Emiliya BZAROVA 16/04/1971 Beslan mother of deceased Dzarasov Aslanbek 1994 and hostage Dzarasov Zaurbek 1993 (medium gravity injuries) (16) EUR 10,000 jointly with applicant 16 – brother and 146 - father 16. 16. Zaurbek DZARASOV 07/01/1993 Beslan hostage (medium gravity injuries), brother of deceased Dzarasov Aslanbek 1994 EUR 5,000 also joint award with applicants 15 - mother and 146 - father 17. 18. Zarina KESAYEVA 11/07/1992 Beslan hostage (medium gravity injuries) represented by mother Kesayeva Ella EUR 5,000 18. 19. Raisa KHUADONOVA 12/09/1962 Beslan mother of deceased Khuadonova Regina 1989 EUR 10,000 jointly with applicants 19 – sister and 390 - brother 19. 20. Elvira KHUADONOVA 05/06/1984 Beslan sister of deceased Khuadonova Regina 1989 - see joint award with applicants 18 – mother and 390 - brother 20. 21. Nonna TIGIYEVA 26/09/1972 Beslan mother of deceased Tigiyev Soslan 1990 and hostage Tigiyeva Alana 1993 (grave injuries) (22) EUR 10,000 jointly with applicants 21 – father and 22 - sister 21. 22. Boris TIGIYEV 15/03/1972 Moscow father of deceased Tigiyev Soslan 1990 and hostage Tigiyeva Alana 1993 (grave injuries) (22) - see joint award with applicants 20 – mother and 22 - sister 22. 23. Alana TIGIYEVA 23/12/1993 Beslan hostage (grave injuries), sister of deceased Tigiyev Soslan 1990 EUR 7,000 also joint award with applicants 20 – mother and 21 - father 23. 24. Rima BETROZOVA 07/04/1957 Vladikavkaz sister of deceased Betrozov Ruslan 1958 EUR 5,000 see applicant 24 - sister 24. 25. Zhanna BETROZOVA 10/11/1967 Lesken, Republic Alaniya sister of deceased Betrozov Ruslan 1958 EUR 5,000 see applicant 23 - sister 25. 27. Anna MISIKOVA 12/05/1934 Beslan mother of deceased Misikov Artur 1974, grandmother of hostage Misikov Atsamaz 1996 (medium grave injuries) (26) - see joint award with applicant 26 – son 26. 28. Atsamaz MISIKOV 15/11/1996 Beslan hostage (medium grave injuries), son of deceased Misikov Artur 1974 EUR 5,000; and EUR 10,000 jointly with applicant 25 - mother 27. 29. Oleg DAUROV 29/04/1962 Beslan father of deceased Daurov Taymuraz 1997 and hostage Daurova Diana 1994 (medium gravity injuries) (29) EUR 10,000 jointly with applicants 28 – mother and 29 - sister 28. 30. Tamara DAUROVA 14/04/1967 Beslan mother of deceased Daurov Taymuraz 1997 and hostage Daurova Diana 1994 (medium gravity injuries) (29) - see joint award with applicants 27 - father and 29 - sister 29. 31. Diana DAUROVA 24/11/1994 Beslan hostage (medium gravity injuries), sister of deceased Daurov Taymuraz 1997 EUR 5,000 also joint award with applicants 27 – father and 28 - mother 30. 32. Aida KHUBETSOVA 05/07/1965 Beslan mother of deceased Khubetsova Alina 1993 EUR 10,000 jointly with applicant 32 - brother 31. 33. Zoya AYLAROVA 24/03/1941 Vladikavkaz grandmother of deceased Khubetsova Alina 1993 - awarded to applicants 30 – mother and 32 - brother 32. 34. Aleksandr KHUBETSOV 03/12/1987 Beslan brother of deceased Khubetsova Alina 1993 - see joint award with applicant 30 - mother 33. 35. Tamerlan SAVKUYEV 23/09/1950 Vladikavkaz father of deceased Savkuyeva Inga 1974, grandfather of deceased Tomayev Totraz 1997 EUR 10,000 jointly with applicant 175 – brother; and EUR 10,000 34. 36. Tamara GOZOYEVA 16/07/1962 Beslan mother of deceased Ktsoyeva Madina 1992 and hostage Ktsoyev Atsamaz 1990 (medium gravity injuries) (36) EUR 10,000 jointly with applicants 35 – father and 36 - brother 35. 37. Vladimir KTSOYEV 25/03/1953 Beslan father of deceased Ktsoyeva Madina 1992 and hostage Ktsoyev Atsamaz 1990 (medium gravity injuries) (36) - see joint award with applicants 34 – mother and 36 - brother 36. 38. Atsamaz KTSOYEV 27/04/1990 Beslan hostage (medium gravity injuries), brother of deceased Ktsoyeva Madina 1992 EUR 5,000 also joint award with applicants 34 – mother and 35 - father 37. 40. Kazbek GODZHIYEV 08/03/1993 Beslan hostage (grave injuries) represented by mother Bdtayeva Madina EUR 7,000 38. 41. Amran GODZHIYEV 16/09/1989 Beslan hostage (medium gravity injuries) represented by mother Bdtayeva Madina EUR 5,000 39. 42. Konstantin BALIKOYEV legal successor Oleg BALIKOYEV 11/10/1938 - 25/09/2009 Beslan father of deceased Balikoyeva Larisa 1976 EUR 10,000 40. 43. Zarema NADGERIYEVA 20/11/1971 Beslan mother of deceased Bzykova Agunda 1994 and hostage Bzykov Alan 1992 (41) EUR 10,000 41. 44. Alan BZYKOV 21/11/1992 Beslan hostage, brother of deceased Bzykova Agunda 1994 EUR 3,000 42. 45. Zamira BUGULOVA 01/06/1942 Beslan grandmother of deceased Dzhimiyev Oleg 1989 - awarded to applicant 167- mother 43. 46. Zareta KADOKHOVA 01/06/1933 Beslan grandmother of deceased Tsinoyeva Inga 1990 - awarded to applicant 174 - mother 44. 47. Yuriy KADOKHOV (died on 04/01/2014) legal successor Zareta Kadokhova (43) 01/01/1933 Beslan grandfather of deceased Tsinoyeva Inga 1990 - awarded to applicant 174 - mother 45. 48. Anna DZIOVA 16/05/1934 Beslan mother of deceased Dziova (Dyambekova) Tamara 1967, grandmother of deceased Dyambekova Mayram 1998 and Dyambekova Luiza 1995 EUR 20,000; and EUR 10,000 jointly with applicants 46 – sister and 47 - sister 46. 49. Zalina TEBLOYEVA 04/12/1961 Nogir, Prigorodnyi Region sister of deceased Dziova (Dyambekova) Tamara 1967 - see joint award with 45 – mother and 47 - sister 47. 50. Fatima DZIOVA 20/06/1973 Beslan sister of deceased Dziova (Dyambekova) Tamara 1967 - see joint award with applicants 45 – mother and 46 - sister 48. 51. Razita DEGOYEVA 08/09/1949 Beslan mother of deceased Bazrova Dzerassa 1990 EUR 10,000 49. 52. Totraz GATSALOV 20/08/1956 Beslan father of deceased Gatsalova Agunda 1992 EUR 5,000 see applicant 234 - mother 50. 53. Mariya OZIYEVA 15/09/1942 Beslan grandmother of deceased Oziyev Vadim 1995 and hostage Oziyev Vladimir 1996 (grave injuries) (51) - awarded to applicants 51 -brother and 250 - father 51. 54. Vladimir OZIYEV 23/11/1996 Beslan hostage (grave injuries), brother of deceased Oziyev Vadim 1995 EUR 7,000 also joint award with applicant 250 - father 52. 55. Fatima MALIKIYEVA 16/05/1961 Beslan mother of deceased Malikiyev Arsen 1990 EUR 5,000 see applicant 53 - father 53. 56. Alik MALIKIYEV 15/09/1958 Beslan father of deceased Malikiyev Arsen 1990 EUR 5,000 see applicant 52 - mother 54. 57. Lyudmila GUTNOVA 12/10/1950 Beslan grandmother of deceased Gutnov Zaurbek EUR 10,000 55. 58. Zemfira TSIRIKHOVA 10/10/1964 Beslan hostage (medium gravity injuries), mother of deceased Urusov Aleksandr 1996 and hostage Urusov Amiran 1993 (medium gravity injuries) (application withdrawn) EUR 15,000 56. 60. Aksana DZAPAROVA 15/03/1968 Beslan hostage (medium gravity injuries), wife of deceased Archegov Aslan 1967, mother of hostages Archegova Linda 1998 (57) and Archegov Alibek 1994 (58) EUR 5,000; and EUR 10,000 jointly with applicants 57 – daughter, 58 – daughter and 201 - mother 57. 61. Linda ARCHEGOVA 29/06/1998 Beslan hostage (medium gravity injuries), daughter of deceased Archegov Aslan 1967 EUR 5,000 also joint award with applicants 56 - wife, 58 - daughter and 201 - mother 58. 62. Alibek ARCHEGOV 19/03/1994 Beslan hostage (medium gravity injuries), daughter of deceased Archegov Aslan 1967 EUR 5,000 also joint award with applicant 56 - wife, 57 – daughter and 201 - mother 59. 63. Zalina SABEYEVA 11/11/1961 Beslan mother of deceased Sabeyeva Ilona 1989 EUR 10,000 60. 64. Mzevinari KOKOYTI (former KOCHISHVILI) 28/11/1948 Beslan mother of deceased Kokoyti Bella 1992 EUR 10,000 jointly with applicant 287 - sister 61. 65. Partisan KODZAYEV 13/03/1939 Beslan husband of deceased Kodzayeva Tamara 1937 EUR 10,000 jointly with applicants 176 – daughter and 178 - son 62. 66. Anya TOTROVA 08/03/1954 Vladikavkaz mother of deceased Totrova Marina 1993 EUR 10,000 jointly with applicant 63 - brother 63. 67. Vadim URTAYEV 20/06/1979 Vladikavkaz brother of deceased Totrova Marina 1993 - see joint award with applicant 62 - mother 64. 68. Larisa KULUMBEGOVA 11/01/1962 Vladikavkaz mother of deceased Valigazova Stella 1992 and hostage Valgasov Georgiy 1994 (medium gravity injuries) (118) EUR 5,000 see applicant 65 - father 65. 69. Albert VALIGAZOV (died on 04/05/2010) legal successor Georgyi VALGASOV (118) 12/05/1960 Vladikavkaz father of deceased Valigazova Stella 1992 and hostage Valgasov Georgiy 1994 (medium gravity injuries) (118) EUR 5,000 see applicant 64 - mother 66. 70. Vladimir TOMAYEV 21/08/1960 Beslan husband of deceased Kudziyeva Zinaida 1962, father of deceased Tomayeva Madina 1994 EUR 20,000 67. 71. Vladimir KISIYEV (died on 23/11/2008) legal successor Nanuli KISIYEVA (235) 28/12/1949 Vladikavkaz father of deceased Kisiyev Artur 1975, grandfather of deceased Kisiyev Aslan 1997 EUR 10,000 see applicant 235 – mother and grandmother 68. 72. Fatima SIDAKOVA 05/11/1968 Beslan hostage (medium gravity injuries), mother of hostages Zangiyeva Albina 1997 (medium gravity injuries) (70) and Zangiyeva Santa 1989 (medium gravity injuries) (69) EUR 5,000 69. 73. Santa ZANGIYEVA 15/04/1989 Beslan hostage (medium gravity injuries) EUR 5,000 70. 74. Albina ZANGIYEVA 18/11/1997 Beslan hostage (medium gravity injuries) EUR 5,000 71. 75. Zarina TOKAYEVA 27/10/1976 Beslan hostage (grave injuries) EUR 7,000 72. 76. Naira SIUKAYEVA 13/07/1966 Beslan hostage (medium gravity injuries), mother of hostage Margiyeva alias Margishvili Maya 1991 (medium gravity injuries) (73) EUR 5,000 73. 77. Maya MARGIYEVA alias MARGISHVILI 21/05/1991 Beslan hostage (medium gravity injuries) EUR 5,000 74. 79. Aslanbek AYLYAROV 03/04/1990 Beslan hostage (medium gravity injuries) represented by mother Aylyarova Fatima EUR 5,000 75. 80. Vyacheslav AYLYAROV 16/09/1987 Beslan hostage (medium gravity injuries) represented by mother Aylyarova Fatima EUR 5,000 76. 81. Zalina KARAYEVA 08/09/1973 Beslan hostage, mother of hostage Bigayev Khasan 1994 (medium gravity injuries) (77) EUR 3,000 77. 82. Khasan BIGAYEV 26/03/1994 Beslan hostage (medium gravity injuries) EUR 5,000 78. 84. Ketevan TIGIYEVA 02/09/1987 Beslan hostage (medium gravity injuries) represented by mother Tigiyeva Dali EUR 5,000 79. 85. Tina TIGIYEVA 15/08/1989 Beslan escaped, represented by mother Tigiyeva Dali EUR 3,000 80. 86. Svetlana TIGIYEVA 04/07/1992 Beslan hostage (medium gravity injuries) represented by mother Tigiyeva Dali EUR 5,000 81. 89. Viktoria USHAKOVA 30/01/1992 Beslan hostage (grave injuries) represented by parents Ushakov Viktor and Ushakova Fatima EUR 7,000 82. 90. Elvira GAGIYEVA 10/12/1962 Beslan hostage (medium gravity injuries), mother of hostages Khadartseva Zarina 1993 (medium gravity injuries) (91) and Khadartseva Dzerassa 1990 (medium gravity injuries) (84) EUR 5,000 83. 91. Zarina KHADARTSEVA 15/02/1993 Beslan hostage (medium gravity injuries) EUR 5,000 84. 92. Dzerassa KHADARTSEVA 30/06/1990 Beslan hostage (medium gravity injuries) EUR 5,000 85. 94. Elena UZHEGOVA 12/09/1994 Beslan hostage (medium gravity injuries) represented by mother Uzhegova Marina EUR 5,000 86. 96. Vladislav YESIYEV 12/10/1992 Beslan hostage (medium gravity injuries) represented by mother Yesiyeva Elvira EUR 5,000 87. 97. Alan YESIYEV 16/03/1994 Beslan hostage (grave injuries) represented by mother Yesiyeva Elvira EUR 7,000 88. 99. Alina TSGOYEVA 02/09/1995 Beslan hostage (medium gravity injuries) represented by mother Tsgoyeva Bella EUR 5,000 89. 101. Yana KHAYEVA 13/10/1988 Beslan hostage (medium gravity injuries) represented by mother Maliyeva Irina EUR 5,000 90. 102. Svetlana BIGAYEVA 08/05/1963 Beslan hostage (medium gravity injuries) EUR 5,000 91. 103. Soslanbek BIGAYEV 24/03/1988 Beslan hostage (medium gravity injuries) EUR 5,000 92. 104. Azamat BIGAYEV 01/03/1992 Beslan hostage (medium gravity injuries) EUR 5,000 93. 105. Georgiy BIGAYEV 02/01/1990 Beslan escaped EUR 3,000 94. 107. Georgiy TORCHINOV 25/11/1993 Beslan hostage (medium gravity injuries) represented by mother Torchinova Liudmila EUR 5,000 95. 108. Zaurbek TORCHINOV 29/01/1989 Beslan escaped, represented by mother Torchinova Liudmila EUR 3,000 96. 110. Soslan PERSAYEV 01/08/1994 Beslan hostage (medium gravity injuries) represented by mother Persayeva Irina EUR 5,000 97. 111. Aslanbek PERSAYEV 16/02/1989 Beslan hostage (grave injuries) represented by mother Persayeva Irina EUR 7,000 98. 112. Irina DOGUZOVA 20/03/1967 Beslan hostage (medium gravity injuries), mother of deceased Dzhioyev Artur 1995 and survived hostage Dzhioyev Mark 1996 (99) EUR 5,000; and EUR 10,000 jointly with applicants 99 – brother and 227 - father 99. 113. Mark DZHIOYEV 29/09/1996 Beslan hostage, brother of deceased Dzhioyev Artur 1995 EUR 3,000 also joint award with applicants 98 – mother and 227 - father 100. 114. Zarema BEDOSHVILI 29/10/1964 Beslan mother of deceased Bichenov Kazbek 1995 EUR 5,000 see applicant 101 - father 101. 115. Roman BICHENOV 08/01/1963 Beslan father of deceased Bichenov Kazbek 1995 EUR 5,000 see applicant 100 - mother 102. 116. Murat KATSANOV 28/11/1958 Beslan father of deceased Katsanova Alana 1989 EUR 10,000 103. 117. Valeriy NAZAROV 17/08/1940 Vladikavkaz husband of deceased Nazarova Nadezhda 1940; farther of deceased Balandina Natalia 1975; grandfather of deceased Balandin Aleksandr 1995 and deceased Nazarova Anastasiya 1994 EUR 30,000 see applicant 104 - mother 104. 118. Yelena NAZAROVA 28/06/1967 Beslan hostage (medium gravity injuries), mother of deceased Nazarova Anastaiya 1994 EUR 15,000 105. 119. Irina MORGOYEVA 15/12/1955 Beslan mother of deceased Khayeva Emma 1992 EUR 10,000 jointly with applicant 302 - sister 106. 121. Amina KACHMAZOVA 14/09/1996 Beslan hostage (grave injuries) represented by mother Kachmazova Rita EUR 7,000 107. 122. Rigina KUSAYEVA 09/12/1973 Beslan hostage (medium gravity injuries); mother of hostages Kusayeva Izeta 1995 (108) and Kusayev Fidar 2000 (grave injuries) (109) EUR 5,000 108. 123. Izeta KUSAYEVA 01/09/1995 Beslan hostage EUR 3,000 109. 124. Fidar KUSAYEV 14/05/2000 Beslan hostage (grave injuries) EUR 7,000 110. 125. Larisa KUDZIYEVA 14/05/1964 Nogir, Progorodnyi Region hostage (grave injuries); mother of hostage Kudziyev Zaurbek 1997 (medium gravity injuries) died on 26/04/11 EUR 7,000 111. 126. Lyudmila TSEBOYEVA 18/12/1956 Beslan hostage (medium gravity injuries); mother of hostage Tseboyeva Lyana 1992 (medium gravity injuries) (112) EUR 5,000 112. 127. Lyana TSEBOYEVA 11/09/1992 Beslan hostage (medium gravity injuries) EUR 5,000 113. 128. Irina DZHIBILOVA 11/12/1936 Beslan grandmother of deceased Dzhibilov Boris 1995 and deceased Dzhibilova Alana 1992; mother-in-law of deceased Gasinova-Dzhibilova Emma 1964 EUR 30,000 114. 129. Aleksandra KHUBAYEVA 14/08/1950 Beslan mother of deceased Khubayeva Madina 1972 - see joint award with applicants 304 – sister and 401 - husband 115. 130. Alma KHAMITSEVA 07/04/1965 Beslan sister of deceased Chedzhemova Lemma 1962 EUR 10,000 116. 131. Ruslan SALKAZANOV 04/10/1997 Beslan hostage (grave injuries); son of deceased Salkazanova Larisa 1961 EUR 7,000 also joint award with applicant 12 - husband 117. 132. Layma TORCHINOVA 1995 copy of passport missing hostage (medium gravity injuries) represented by father Torchinov Saveliy EUR 5,000 118. 133. Georgiy VALGASOV 1994 copy of passport missing Vladikavkaz hostage (medium gravity injuries) EUR 5,000 Dudiyev and Others v. Russia 14755/08 Mr M.I. TREPASHKIN 119. 1. Susanna DUDIYEVA 12/07/1961 Beslan mother of deceased Dudiyev Zaur 1991 EUR 5,000 see applicant 149 - father 120. 2. Aneta GADIYEVA 16/06/1963 Vladikavkaz hostage; mother of deceased Dogan Alana 1995 and hostage Milena Dogan 2003 (132) EUR 8,000 see applicant 151 - father 121. 3. Rita SIDAKOVA 30/05/1959 Beslan mother of deceased Dudiyeva Alla 1995 EUR 10,000 122 4. Viktor YESIYEV (died on 23/01/2014) legal successor wife Lima Yesiyeva 18/07/1938 Vladikavkaz father of deceased Yesiyev Elbrus 1967 EUR 10,000 123. 5. Elvira TUAYEVA 06/01/1962 Beslan hostage (medium gravity injuries); mother of deceased Tuayeva Karina 1992 and deceased Tuayev Khetag 1993 EUR 15,000 see applicant 165 - father 124. 6. Rimma TORCHINOVA 26/12/1965 Beslan mother of deceased Gumetsova Aza 1992 EUR 10,000 125. 7. Rita TECHIYEVA 13/05/1960 Beslan mother of deceased Rubayev Khasan 1990 EUR 5,000 see applicant 161 - father 126. 8. Aleftina KHANAYEVA 10/11/1970 Beslan hostage (medium gravity injuries); mother of deceased Ramonova Marianna 1989 EUR 15,000 127. 9. Svetlana TSGOYEVA 07/02/1938 Beslan grandmother of deceased Albegova Zalina 1995 - awarded to applicant 133 -mother 128. 10. Larisa MAMITOVA 02/11/1959 Vladikavkaz hostage (grave injuries); mother of hostage Toguzov Tamerlan 1991 (medium gravity injuries) (not an applicant) EUR 7,000 129. 11. Zalina GUBUROVA 24/07/1964 Beslan mother of deceased Guburov Soslan 1995 and daughter of deceased Daurova Zinaida 1935 EUR 20,000 130. 12. Zalina BADOYEVA 08/04/1961 Vladikavkaz sister of deceased Badoyev Akhtemir 1957 EUR 10,000 131. 13. Zema TOKOVA 20/06/1963 Beslan mother of deceased Godzhiyev Roman 1990 EUR 10,000 132. 14. Milena DOGAN 2003 Vladikavkaz hostage EUR 3,000 Albegova and Others v. Russia 49339/08 Mr M.I. TREPASHKIN 133. 1. Albina ALBEGOVA 06/10/1972 Beslan mother of deceased Albegova Zalina 1995 EUR 10,000 134. 2. Kazbek ADYRKHAYEV 29/08/1971 Beslan husband of deceased Alikova Zara 1966; father of deceased Galayeva Alina 1989 and deceased Adyrkhayev Albert 2001 EUR 30,000 135. 3. Filisa BATAGOVA 23/07/1948 Beslan hostage (medium gravity injuries) EUR 5,000 136. 4. Svetlana BEROYEVA 24/07/1949 Beslan grandmother of deceased Tokmayev Aslan 1994 and deceased Tokmayev Soslan 1994 - awarded to applicant 138 - mother 137. 5. Alla BIBOYEVA 29/09/1958 Beslan mother of deceased Batagov Timur 1991 EUR 10,000 138. 6. Zalina BEROYEVA 12/03/1974 Beslan mother of deceased Tokmayev Aslan 1994 and deceased Tokmayev Soslan 1994 EUR 20,000 139. 7. Zarema GADIYEVA 10/03/1938 Beslan mother of deceased Gadiyeva-Goloyeva Fatima 1975 EUR 10,000 140. 8. Kanna GAYTOVA 04/09/1963 Beslan mother of deceased Gaytov Alan 1998 and hostage Gaytova Yelena 1992 (medium gravity injuries) (not an applicant) EUR 10,000 141. 9. Polina GASINOVA 03/01/1938 Beslan mother of deceased Gasinova Emma 1964 EUR 10,000 142. 10. Marina GAPPOYEVA 08/09/1970 Beslan hostage (grave injuries); mother of deceased Gappoyeva Dzerassa 1998 and wife of deceased Gappoyev Ruslan 1970 EUR 17,000; and EUR 10,000 jointly with applicant 366 - mother 143. 11. Rafimat GABOYEVA 10/04/1966 Beslan hostage (light injuries); mother of deceased Aylarova Svetlana 1998 EUR 13,000 144. 12. Marina DUDIYEVA 25/04/1967 Beslan daughter of deceased Dudiyeva Tina 1939; sister of hostage Kudzayeva Alina 1973 (292) EUR 10,000 145. 13. Vladimir DZGOYEV (died on 30/07/2012) legal successors children Margarita Dzgoyeva and Aslanbek Dzgoyev 06/10/1957 Beslan husband of deceased Dzgoyeva Anna 1957; father of deceased Dzgoyeva Olga 1982 and hostages Dzgoeva Margarita 1989 (grave injuries) (not an applicant) and Dzgoyev Aslanbek 1990 (medium gravity injuries) (not an applicant) EUR 20,000 146. 14. Kazbek DZARASOV 30/04/1969 Beslan hostage (medium gravity injuries); father of deceased Dzarasov Aslanbek 1994 and hostage Dzarasov Zaurbek 1993 (medium gravity injuries) (16) EUR 5,000 also joint award with applicants 15 – mother and 16 - brother 147. 15. Lena DULAYEVA 25/09/1959 Beslan mother of deceased Gugkayeva Inga 1980 EUR 10,000 148. 16. Akhsarbek DUDIYEV 21/01/1966 Vladikavkaz father of deceased Dudiyeva Izeta 1997 and deceased Dudiyev Soslan 1990 EUR 10,000 see applicant 150 - mother 149. 17. Elbrus DUDIYEV (died on 18/04/2012) legal successor wife Susanna DUDIYEVA (119) 25/03/1953 Beslan father of deceased Dudiyev Zaur 1991 EUR 5,000 see applicant 119 - mother 150. 18. Rita DUDIYEVA 01/01/1967 Vladikavkaz hostage (grave injuries); mother of deceased Dudiyeva Izeta 1997 and deceased Dudiyev Soslan 1990 EUR 17,000 see applicant 148 - father 151. 19. Seyfulmulal DOGAN 09/07/1955 Vladikavkaz husband of hostage Gadiyeva Aneta, father of deceased Dogan Alana 1995 and hostage Milena Dogan 2003 (132) EUR 5,000 see applicant 120 - mother 152. 20. Alik DZGOYEV 02/02/1967 Beslan father of deceased Dzgoyeva Zalina 1996 EUR 10,000 153. 21. Fatima DUDIYEVA 01/11/1959 Beslan hostage (grave injuries) EUR 7,000 154. 22. Anatoliy KANUKOV 09/09/1965 Nuzal father of deceased Kanukova Anzhelika 1991; husband of hostage Kanukova Zarina 1965 (medium gravity injuries) (not an applicant) EUR 10,000 155. 23. Fatima KABISOVA 07/03/1970 Vladikavkaz mother of deceased Khadikov Islam 1989 EUR 5,000 see applicant 205 - father 156. 24. Madinat KARGIYEVA 16/04/1961 Beslan hostage (grave injuries); mother of deceased Kastuyeva Zarina 1992 and hostage Kastuyev Alan 1995 (grave injuries) (not an applicant) EUR 17,000 157. 25. Tatyana KODZAYEVA 09/11/1968 Beslan hostage (grave injuries); mother of deceased Kodzayeva Elina 1995 EUR 17,000 158. 26. Elbrus NOGAYEV 17/10/1959 Beslan husband of deceased Nogayeva Rita 1960 and deceased Nogayeva Ella 1995 EUR 20,000 159. 27. Zalina NOGAYEVA 26/12/1969 Beslan hostage; mother of deceased Tokova Alina 1995 and hostage Tokov Albert 1994 (grave injuries) (not an applicant) EUR 13,000 160. 28. Anzhela NOGAYEVA 07/05/1980 Beslan hostage (grave injuries); mother of hostage Nogayev Batraz 1998 (medium gravity injuries) (not an applicant) EUR 7,000 161. 29. Kazbek RUBAYEV 05/11/1951 Beslan father of deceased Rubayev Khasan 1990 EUR 5,000 see applicant 125 - mother 162. 30. Venera SAMAYEVA 05/05/1936 Zavodskoy mother of deceased Muzayeva Fatima 1968 EUR 10,000 163. 31. Irina SOSKIYEVA 16/01/1978 Beslan daughter of deceased Soskiyeva Olga 1951 EUR 10,000 164. 32. Natalya SALAMOVA 09/08/1940 Beslan mother of deceased Dzutseva-Tatrova Alena 1976 EUR 10,000 jointly with applicant 280 - sister 165. 33. Georgiy TUAYEV 15/03/1960 Beslan husband of hostage Tuayeva Elvira 1962 (medium gravity injuries) (123); father of deceased Tuayeva Karina 1992 and deceased Tuayev Khetag 1993 EUR 10,000 see applicant 123 - mother 166. 34. Elbizdiko TOKHTIYEV 07/03/1952 Vladikavkaz father of deceased Tokhtiyev Azamat 1989 EUR 10,000 167. 35. Lyudmila KHADZARAGOVA 16/04/1964 Beslan mother of deceased Dzhimiyev Oleg 1989 and hostage Dzhimiyeva Alina 1992 (medium gravity injuries) (not an applicant) EUR 10,000 168. 36. Rita KHABLIYEVA 19/11/1956 Beslan mother of deceased Farniyeva Kristina 1988 EUR 10,000 169. 37. Zalina KHUZMIYEVA 19/01/1967 Beslan hostage (grave injuries); mother of deceased Khuzmiyev Georgiy 1996 and deceased Khuzmiyeva Stella 1997 EUR 27,000 170. 38. Tamara SHOTAYEVA 14/05/1949 Beslan mother of deceased Kuchiyeva-Shotayeva Albina 1973 and grandmother of deceased Kuchiyeva Zarina 1997 EUR 20,000 171. 39. Ruslan TSKAYEV 07/09/1969 Beslan husband of deceased Tskayeva Fatima 1974; father of deceased Tskayeva Kristina 1994 and hostages Tskayev Makharbek 2001 (not an applicant) and Tskayeva Alena 2004 (not an applicant) EUR 20,000 172. 40. German TSGOYEV 15/08/1959 Beslan husband of deceased Biboyeva Fatima 1967; father of hostages Tsgoyev Aleksandr 1997 (medium gravity injuries) (not an applicant) and Tsgoyeva Valeriya 2000 (grave injuries) (not an applicant) EUR 10,000 173. 41. Elza TSABIYEVA 21/12/1967 Beslan mother of deceased Pliyeva Alana 1993 and hostage Pliyeva Zalina 1996 (grave injuries) (not an applicant) EUR 10,000 174. 42. Svetlana TSINOYEVA 06/09/1964 Vladikavkaz mother of deceased Tsinoyeva Inga 1990 EUR 10,000 Savkuyev and Others v. Russia 49380/08 Mr K.N. KOROTEYEV ECHRAC/ Memorial Human Rights Centre 175. 1. Timur SAVKUYEV 16/09/1981 Beslan brother of deceased Savkuyeva Inga 1974 - see joint award with applicant 33 –father 176. 2. Marina KODZAYEVA 21/05/1970 Vladikavkaz daughter of deceased Kodzayeva Tamara 1937; mother of hostage Tatonov Gleb 2000 (grave injuries) (177) - see joint award with applicants 61 – husband and 178 - son 177. 3. Gleb TATONOV 07/12/2000 Beslan hostage (grave injuries), grandson of deceased Kodzayeva Tamara 1937 EUR 7,000 awarded to applicants 61 – husband, 176 - daughter and 178 -son 178. 4. Gennadiy BELYAKOV 14/02/1961 Beslan son of deceased Kodzayeva Tamara 1937 - see joint award with applicants 61 – husband and 176 - daughter 179. 6. Marina BOKOYEVA 06/01/1989 Beslan hostage (grave injuries) represented by mother Bokoyeva Svetlana EUR 7,000 180. 7. Zaira BOKOYEVA 17/12/1993 Beslan hostage (medium gravity injuries) represented by mother Bokoyeva Svetlana EUR 5,000 181. 8. Zemfira AGAYEVA 11/06/1971 Beslan hostage (medium gravity injuries); mother of hostage Agayev Aleksandr 1996 (medium gravity injuries) (182) and deceased Agayev Georgiy (Zhorik) 1996 EUR 5,000; and EUR 10,000 jointly with applicant 182 - brother 182. 9. Aleksandr AGAYEV 20/05/1993 Beslan hostage (medium gravity injuries), brother of deceased Agayev Georgiy (Zhorik) 1996 EUR 5,000; also joint award with applicant 181 - mother 183. 10. Marita MAMSUROVA 24/02/1962 Beslan hostage (medium gravity injuries) EUR 5,000 184. 11. Zarina KHADIKOVA 10/04/1990 Beslan hostage (medium gravity injuries) EUR 5,000 185. 12. Atsamaz DZAGOYEV 09/12/1941 Beslan father of hostage Dzagoyev Chermen 1997 (medium gravity injuries) (186), husband of deceased Dzagoyeva Zhanna 1963 EUR 10,000 jointly with applicant 186 - son 186. 13. Chermen DZAGOYEV 22/09/1997 Beslan hostage (medium gravity injuries), son of deceased Dzagoyeva Zhanna 1963 EUR 5,000 also joint award 185 - husband 187. 16. Alina TSORAYEVA 22/06/1992 Beslan hostage (grave injuries) represented by mother Bekoyeva Roza EUR 7,000 188. 19. Larisa DZAGOYEVA 25/08/1949 Beslan mother of deceased Dzagoyeva Irma 1980 EUR 10,000 jointly with applicant 189 - sister 189. 20. Irina DZAGOYEVA 25/03/1988 Beslan hostage (medium gravity injuries), sister of deceased Dzagoyeva Irma 1980 EUR 5,000 also joint award with applicant 188 - mother 190. 21. Alina SAKIYEVA 25/07/1987 Beslan hostage (medium gravity injuries) EUR 5,000 191. 22. Marina DARCHIYEVA 19/10/1967 Beslan hostage (medium gravity injuries); mother of hostages Darchiyev Akhsarbek 1996 (medium gravity injuries) (192) and Darchiyeva Yelena 1992 (medium gravity injuries) (193) EUR 5,000 192. 23. Akhsarbek DARCHIYEV 28/05/1996 Beslan hostage (medium gravity injuries) EUR 5,000 193. 24 Yelena DARCHIYEVA 11/04/1992 Beslan hostage (medium gravity injuries) EUR 5,000 194. 26 Anna ALIKOVA 12/09/1954 Beslan hostage (medium gravity injuries) EUR 5,000 195. 27 Oksana DZAMPAYEVA 15/12/1976 Beslan hostage (medium gravity injuries); mother of hostage Dzampayeva Irlanda 1997 (medium gravity injuries) (196) EUR 5,000 196. 28 Irlanda DZAMPAYEVA 09/02/1997 Beslan hostage (medium gravity injuries) EUR 5,000 197. 30 Soslan MORGOYEV 23/07/1995 Beslan hostage (medium gravity injuries) represented by mother Morgoyeva Zarina EUR 5,000 198. 31 Fatima URTAYEVA 07/03/1962 Beslan mother of hostage Tetov Alan 1992 (medium gravity injuries) (199) and deceased Tetova Agunda 1991 and deceased Tetova Alina 1992 EUR 20,000 jointly with applicant 199 - brother 199. 32 Alan TETOV 10/08/1992 Beslan hostage (medium gravity injuries), brother of deceased Tetova Agunda 1991 and deceased Tetova Alina 1992 EUR 5,000 also joint award with applicant 198 - mother 200. 33 Zalina DULAYEVA 28/12/1965 Beslan mother of deceased Tsabolov Marat 1994 EUR 10,000 201. 34. Mariya ARCHEGOVA 24/04/1946 Beslan mother of deceased Archegov Aslan 1967 - see joint award with applicants 56 - wife, 57 – daughter and 58 - daughter 202. 36. Aslan DZARASOV 03/09/1990 Beslan hostage (medium gravity injuries) represented by mother Morgoyeva Tamara EUR 5,000 203. 37. Soslan DZARASOV 02/07/1992 Beslan hostage represented by mother Morgoyeva Tamara EUR 3,000 204. 39. Batraz CHIKHTISOV 29/12/1993 Beslan hostage (medium gravity injuries) represented by mother Chikhtisova Vinera EUR 5,000 205. 40. Alan KHADIKOV 13/02/1965 Beslan father of deceased Khadikov Islam 1989 EUR 5,000 see applicant 155 - mother 206. 42. Artur GUTIYEV 10/10/1989 Beslan hostage (medium gravity injuries) represented by mother Berozova Tamusya EUR 5,000 207. 43. Diana GUTIYEVA 17/06/1991 Beslan hostage (medium gravity injuries) represented by mother Berozova Tamusya EUR 5,000 208. 44. Fatima GUTIYEVA 18/04/1961 Beslan hostage (medium gravity injuries) EUR 5,000 209. 45. Zhanna DZEBOYEVA 24/10/1960 Vladikavkaz hostage (medium gravity injuries); mother of hostage Dzandarova Diana 1995 (medium gravity injuries) (210) EUR 5,000 210. 46. Diana DZANDAROVA 26/06/1995 Vladikavkaz hostage (medium gravity injuries) EUR 5,000 211. 47. Irina BEKUZAROVA 08/03/1964 Beslan hostage (medium gravity injuries); mother of hostage Khudalova Madina 1997 (212) and deceased Khudalov Beksoltan 1997 EUR 5,000; and EUR 10,000 jointly with applicants 212 – sister and 305 - father 212. 48. Madina KHUDALOVA 12/06/1997 Beslan hostage, sister of deceased Khudalov Beksoltan 1997 EUR 3,000 also joint award with applicants 211 – mother and 305 - father 213. 50. Islam KHUDALOV 08/04/1992 Beslan hostage (medium gravity injuries) represented by mother Khudalova Bella EUR 5,000 214. 51. Galina KUDZIYEVA 18/02/1962 Beslan hostage (grave injuries); mother of deceased Daguyeva Karina 1988 EUR 17,000 215. 52. Lyudmila KORNAYEVA 27/03/1954 Beslan mother of hostages Kusova Dzerassa 1988 (medium gravity injuries) (216), Kusova Fatima 1990 (medium gravity injuries) (217) and deceased Kusova Madina 1993 EUR 10,000 jointly with applicants 216 – sister and 217 - sister 216. 53. Dzerassa KUSOVA 10/10/1988 Beslan hostage (medium gravity injuries), sister of deceased Kusova Madina 1993 EUR 5,000 also joint award with applicants 215 – mother and 217 - sister 217. 54. Fatima KUSOVA 26/04/1990 Beslan hostage (medium gravity injuries), sister of deceased Kusova Madina 1993 EUR 5,000 also joint award with applicants 215 – mother and 216 - sister 218. 55. Lyudmila KOKAYEVA 14/02/1957 Beslan hostage (medium gravity injuries); mother of hostage Kokayev Soslan 1990 (medium gravity injuries) (219) EUR 5,000 219. 56. Soslan KOKAYEV 24/04/1990 Beslan hostage (medium gravity injuries) EUR 5,000 220. 57. Indira KOKAYEVA 23/04/1974 Beslan hostage (medium gravity injuries); mother of hostage Kokayev Alan 1998 (medium gravity injuries) (221) EUR 5,000 221. 58. Alan KOKAYEV 05/11/1998 Beslan hostage (medium gravity injuries) EUR 5,000 222. 59. Zoya KTSOYEVA 12/04/1963 Beslan hostage (medium gravity injuries); mother of hostages Eltarov Boris 1988 (medium gravity injuries) (223) and Eltarov Soslan 1991 (medium gravity injuries) (224) EUR 5,000 223. 60. Boris ELTAROV 25/12/1988 Beslan hostage (medium gravity injuries) EUR 5,000 224. 61. Soslan ELTAROV 13/08/1991 Beslan hostage (medium gravity injuries) EUR 5,000 225. 62 Albina KASTUYEVA 17/08/1966 Beslan hostage (medium gravity injuries); mother of hostage Kastuyeva Zalina 1997 (medium gravity injuries) (226) EUR 5,000 226. 63. Zalina KASTUYEVA 01/03/1997 Beslan hostage (medium gravity injuries) EUR 5,000 227. 64. Akhsarbek DZHIOYEV 02/08/1964 Beslan father of deceased Dzhioyev Artur 1995 - see joint award with applicants 98 – mother and 99 – brother 228. 65. Alan ADYRKHAYEV 18/10/1963 Beslan husband of deceased Adyrkhayeva Irina 1975; father of hostages Adyrkhayeva Milana 2000 (medium gravity injuries) (229) and Adyrkhayeva Emiliya 1997 (medium gravity injuries) (230) EUR 10,000 jointly with applicants 229 – daughter and 230 - daughter 229. 66. Milana ADYRKHAYEVA 13/04/2000 Beslan hostage (medium gravity injuries), daughter of deceased Adyrkhayeva Irina 1975 EUR 5,000 also joint award with applicants 228 – husband and 230 - daughter 230. 67. Emiliya ADYRKHAYEVA 07/06/1997 Beslan hostage (medium gravity injuries), daughter of deceased Adyrkhayeva Irina 1975 EUR 5,000 also joint award with applicants 228 – husband and 229 - daughter 231. 68. Marina PAK 25/11/1965 Beslan mother of deceased Tsoy Svetlana 1992 EUR 10,000 232. 69. Yelena SMIRNOVA 24/09/1965 Beslan mother of deceased Smirnova Inna 1988 EUR 10,000 233. 70. Aleksandra SMIRNOVA 02/06/1933 Beslan grandmother of deceased Smirnova Alla 1989 EUR 10,000 234. 71. Rita TIBILOVA 18/02/1963 Beslan mother of deceased Gatsalova Agunda 1992 EUR 5,000 see applicant 49 - father 235. 72. Nanuli KISIYEVA 20/12/1953 Vladikavkaz mother of deceased Kisiyev Artur 1975; grandmother of deceased Kisiyev Aslan 1997 EUR 10,000 see applicant 67 - father and grandfather 236. 73. Lyudmila DZAMPAYEVA 10/01/1951 Beslan grandmother of deceased Bitsiyev Zaurbek 1996 - awarded to applicant 245 - mother 237. 74. Ruslan GAPPOYEV 25/01/1961 Beslan husband of deceased Gappoyeva Naida 1960; father of hostages Gappoyev Alan 1997 (grave injuries) (238) and Gappoyev Soslan 1993 (grave injuries) (239) EUR 10,000 jointly with applicants 238 -son and 239 - son 238. 75. Alan GAPPOYEV 24/06/1997 Beslan hostage (grave injuries), son of deceased Gappoyeva Naida 1960 EUR 7,000 also joint award with applicant 237 - husband and 239 - son 239. 76 Soslan GAPPOYEV 05/05/1993 Beslan hostage (grave injuries), son of deceased Gappoyeva Naida 1960 EUR 7,000 also joint award with applicants 237 – husband and 238 - son 240. 77. Shorena VALIYEVA 12/03/1974 Beslan hostage (grave injuries); mother of hostage Guldayev Georgiy 1998 (grave injuries) (241) EUR 7,000 241. 78. Georgiy GULDAYEV 06/02/1998 Beslan hostage (grave injuries) EUR 7,000 242. 79. Vova GULDAYEV 05/04/1963 Beslan husband of deceased Msostova Elza 1969; father of deceased Guldayeva Olesya 1992 and hostage Guldayeva Alina 1993 (grave injuries) (243) EUR 20,000 243. 80. Alina GULDAYEVA 01/07/1993 Beslan hostage (grave injuries) EUR 7,000 244. 81. Kira GULDAYEVA 02/05/1941 Beslan hostage (medium gravity injuries) EUR 5,000 245. 82. Zarina DZAMPAYEVA 10/05/1976 Beslan hostage (medium gravity injuries); mother of deceased Bitsiyev Zaurbek 1996 EUR 15,000 246. 83. Lyubov SALAMOVA 08/08/1946 Beslan grandmother of deceased Alkayev Sergey 1989 EUR 10,000 247. 84. Fatima KELEKHSAYEVA 04/08/1964 Brut, Pravoberezhnyi Region mother of deceased Arsoyeva Sofya 1990 EUR 10,000 248. 85. Oksana TSAKHILOVA 25/06/1977 Vladikavkaz sister of deceased Nayfonova Svetlana 1972 EUR 10,000 249. 87. Rustam KOKOV 14/07/1974 Beslan hostage (medium gravity injuries) EUR 5,000 250. 90. Sergey OZIYEV 01/10/1965 Beslan husband of deceased Oziyeva Marina 1975; father of deceased Oziyev Vadim 1995 and Oziyev Vladimir 1996 (grave injuries) (51) EUR 10,000 jointly with applicant 251 - mother; and EUR 10,000 jointly with applicant 51 - brother 251. 92. Nadezhda ZASEYEVA 08/12/1946 Beslan mother of deceased Oziyeva Marina 1975 and grandmother of deceased Oziyev Vadim 1995 - see joint award with applicant 250 - father; awarded to applicants 250 – husband and 51 - brother 252. 93. Lidiya KHODOVA 04/01/1953 Beslan hostage (grave injuries); representative of hostage Aylyarov Asakhmat 1997 (medium gravity injuries) (253) EUR 7,000 253. 94. Asakhmat AYLYAROV 27/01/1997 Beslan hostage (medium gravity injuries) EUR 5,000 254. 95. Lyubov ZAPOROZHETS 04/05/1966 Beslan mother of deceased Zaporozhets Sergey 1992 EUR 10,000 255. 96. Sergey FRIYEV 27/05/1959 Beslan father of deceased Friyeva Yelena 1995 and hostage Friyev Ruslan 1993 (256) EUR 10,000 jointly with applicant 256 - brother 256. 97. Ruslan FRIYEV 13/03/1993 Beslan hostage, brother of deceased Friyeva Yelena 1995 EUR 3,000 also joint award with applicant 255 - father 257. 98. Larisa TSGOYEVA 19/12/1969 Beslan wife of deceased Dzgoyev Khazbi 1970 EUR 10,000 258. 99. Viktoriya Kibizova 16/08/1987 Beslan hostage (medium gravity injuries) represented by mother Dzagoyeva Klara EUR 5,000 259. 100. Zaurbek Kozyrev 1994 Beslan hostage (grave injuries) represented by mother Kozyreva Zhanna EUR 7,000 260. 101. Shamil Kokov 26/03/1996 Beslan hostage (medium gravity injuries) represented by mother Kokova Marina EUR 5,000 261. 102. Madina Khoziyeva 08/03/1990 Beslan hostage represented by mother Tebiyeva Anastasiya EUR 3,000 262. 103. Lyubov Tsagarayeva 1962 Beslan hostage (medium gravity injuries) represented by mother Gioyeva Zara EUR 5,000 263. 104. Georgiy Tsagarayev 1993 Beslan hostage (medium gravity injuries) represented by mother Gioyeva Zara EUR 5,000 264. 105. Valeriya Kokova 2001 Beslan hostage represented by mother Kokova Marina EUR 3,000 Aliyeva and Others v. Russia 51313/08 Mr M.I. TREPASHKIN 265. 2. Nadezhda BADOYEVA 22/07/1987 Beslan hostage (grave injuries) EUR 7,000 266. 3. Zarema BADTIYEVA 04/11/1952 Farn, Pravoberezhnyi Region mother of deceased Badtiyeva Anzhela 1972 EUR 10,000 267. 4. Valeriy BEKUZAROV 11/04/1968 Alaniya husband of deceased Bekuzarova Yelena 1974 EUR 10,000 268. 6. Zarina VALIYEVA 20/02/1990 Beslan hostage (medium gravity injuries) EUR 5,000 269. 7. Galina VALIYEVA 08/12/1964 Beslan hostage (medium gravity injuries) EUR 5,000 270. 8. David VALIYEV 20/02/1989 Beslan hostage (grave injuries) EUR 7,000 271. 9. Zinaida VARZIYEVA 21/08/1955 Alaniya mother of deceased Varziyev Erik 1992 EUR 10,000 272. 10. Raisa GABISOVA 21/10/1945 Beslan hostage (medium gravity injuries) EUR 5,000 273. 11. Zaurbek GAYTOV 24/03/1963 Beslan father of deceased Gaytov Alan 1988 and hostage Gaytova Yelena 1992 (medium gravity injuries) (not an applicant) EUR 10,000 274. 13. Zara GOZYUMOVA 29/05/1959 Beslan hostage EUR 3,000 275. 14. Dzhaba GOLOYEV 29/06/1979 Novyy Batako husband of deceased Gadiyeva Fatima 1975 and father of deceased Goloyeva Kristina 2002 EUR 20,000 276. 15. Zarina DAUROVA 18/08/1985 Vladikavkaz hostage (medium gravity injuries) EUR 5,000 277. 16. Elochka DZARASOVA 30/08/1940 Beslan hostage EUR 3,000 278. 17. Elza DZEBOYEVA 13/10/1951 Terek, Stavropol Region hostage (medium gravity injuries) EUR 5,000 279. 18. Zoya DZUTSEVA 14/07/1939 Beslan grandmother of deceased Tsibirova Tameris 1994 and hostage Tsibirova Amaga 1991 (grave injuries) (not an applicant) EUR 10,000 280. 19. Lyudmila DZUTSEVA 12/02/1966 Beslan sister of deceased Dzutseva-Tatrova Alena 1976 - see joint award with applicant 164 - mother 281. 20. Zarina DZHIBILOVA 21/06/1977 Elkhotovo sister of deceased Dzhidzalova Edita 1976 EUR 10,000 282. 22. Larisa DZHUMOK 30/09/1960 Beslan hostage EUR 3,000 283. 23. Zara DUDAROVA 06/11/1957 Beslan hostage (medium gravity injuries) EUR 5,000 284. 25. Svetlana DZIOVA 31/03/1964 Beslan mother of deceased Dziova Dzerassa 1990 EUR 10,000 285. 28. Viktoriya KASTUYEVA 25/11/1971 Mikhaylovskoye hostage EUR 3,000 286. 29. Raya KIBIZOVA 03/02/1942 Beslan hostage EUR 3,000 287. 31. Teya KOKOYTI 06/01/1975 Beslan sister of deceased Kokoyti Bella 1992 - see joint award with applicant 60 - mother 288. 32. Zayra KOKOYEVA 11/10/1972 Beslan hostage; mother of deceased Kokoyeva Lyana 1995 and hostage Kokoyeva Kristina 1993 (medium gravity injuries) (not an applicant) EUR 13,000 289. 33. Liana KOKOYEVA 02/07/1977 Kambileyevskoye, Prigorodnyi Region hostage EUR 3,000 290. 34. Rita KOMAYEVA 21/05/1960 Beslan hostage; mother of hostages Gadzhinova Diana 1990 (medium gravity injuries) (not an applicant), Gadzhinova Alina 1993 (medium gravity injuries) (not an applicant) and Gadzhinova Madina 2001 (313) EUR 3,000 291. 35. Fatima KOCHIYEVA 13/11/1971 Vladikavkaz hostage; mother of hostages Melikova Larisa 1999 (medium gravity injuries) (not an applicant) and Melikov Soslan 1999 (medium gravity injuries) (not an applicant) EUR 3,000 292. 36. Alina KUDZAYEVA 20/10/1973 Beslan hostage; mother of hostage Kudzayeva Dzerassa 1997 (medium gravity injuries) (not an applicant), Kudzayeva Madina 2002 (314) EUR 3,000 293. 38. Konstantin MAMAYEV (died on 10/01/2012) legal successor wife Fatima KULIYEVA 25/09/1954 Beslan father of deceased Mamayeva Sabina 1990 EUR 10,000 294. 39. Kazbek MISIKOV 20/03/1961 Beslan hostage (grave injuries); husband of hostage Dzutseva Irina 1969 (grave injuries) (not an applicant); father of hostages Misikov Batraz 1989 (light injuries) (not an applicant) and Misikov Atsamaz 1997 (grave injuries) (315) EUR 7,000 295. 40. Marina MIKHAYLOVA 14/02/1979 Beslan hostage (grave injuries) EUR 7,000 296. 41. Natalya MOKROVA 28/06/1959 Beslan wife of deceased Mokrov Vladimir 1951 and mother of hostage Mokrov Vladislav 1994 (medium gravity injuries) (not an applicant) EUR 10,000 297. 42. Tamara SKAYEVA 17/10/1966 Beslan hostage (medium gravity injuries) EUR 5,000 298. 43. Svetlana SUANOVA 26/08/1963 Beslan hostage (medium gravity injuries) EUR 5,000 299. 44. Larisa TOMAYEVA 14/02/1971 Beslan hostage; mother of hostages Tomayev Azamat 1993 (medium gravity injuries) (not an applicant) and Tomayeva Kristina 1995 (medium gravity injuries) (not an applicant) EUR 5,000 300. 46. Alan URMANOV 04/08/1974 Beslan father of deceased Urmanova Maria 1995 EUR 10,000 301. 47. Lidiya URMANOVA 19/04/1950 Beslan mother of deceased Urmanova-Rudik Larisa 1972; mother-in-law of deceased Urmanova Rita 1965; grandmother of deceased Urmanova Zalina 1998, deceased Rudik Yana 1992, deceased Rudik Yulia 1990, deceased Urmanova Maria 1995 EUR 50,000 See award to applicant 300 - father 302. 49. Tamara KHAYEVA 15/05/1987 Beslan sister of deceased Khayeva Emma 1992 - see joint award with applicant 105 - mother 303. 50. Aleta KHASIYEVA 03/05/1962 Beslan hostage EUR 3,000 304. 51. Marina KHUBAYEVA 06/07/1975 Beslan sister of deceased Khubayeva Madina 1972 - see joint award with applicants 114 - mother and 401 - husband 305. 52. Batraz KHUDALOV 12/05/1964 Beslan father of hostage Khudalova Madina 1997 (212) and deceased Khudalov Beksoltan 1997 - see joint award with applicants 211 – mother and 212 - sister 306. 53. Zalina KHUDALOVA 10/04/1972 Beslan wife of deceased Khudalov Elbrus 1951; mother of deceased Khudalov Georgiy 1994 EUR 20,000 307. 54. Anzhela KHUMAROVA 23/02/1972 Beslan hostage (grave injuries); mother of hostage Khumarov Timur 1997 (medium gravity injuries) (316) EUR 7,000 308. 55. Fatima TSAGARAYEVA 04/08/1964 Beslan hostage; mother of hostages Murtazova Diana 1990 (grave injuries) (not an applicant), Murtazova Viktoriya 1992 (medium gravity injuries) (not an applicant) and Murtazova Madina 1997 (medium gravity injuries) (317) EUR 3,000 309. 56. Svetlana KHUTSISTOVA 16/08/1953 Beslan mother of deceased Khutsistov Azamat 1978 EUR 10,000 310. 57. Rimma TSOMARTOVA 10/08/1944 Beslan hostage (medium gravity injuries); grandmother of hostages Fardzinova Zhaklin 1994 (medium gravity injuries) (not an applicant) and Fardzinov Alan 1996 (medium gravity injuries) (not an applicant) EUR 5,000 311. 58. Olga SHCHERBININA 18/10/1956 Beslan hostage (light injuries) EUR 3,000 312. 59. Umar Dudarov 2003 Beslan hostage (medium gravity injuries) represented by mother Dudarova Madina EUR 5,000 313. 60. Madina Gadzhinova 2001 Beslan hostage EUR 3,000 314. 61. Madina Kudzayeva 2002 Beslan hostage EUR 3,000 315. 62. Atsamaz Misikov 1997 Beslan hostage (grave injuries) EUR 7,000 316. 63. Timur Khumarov 1997 Beslan hostage (medium gravity injuries) EUR 5,000 317. 64. Madina Murtazova 1997 Beslan hostage (medium gravity injuries) EUR 5,000 Kokova and Others v. Russia 21294/11 Mr K.N. KOROTEYEV ECHRAC/ Memorial Human Rights Centre 318. 1. Tereza KOKOVA 29/04/1966 Beslan hostage (medium gravity injuries); mother of hostages Kokova Alana 1993 (medium gravity injuries) (319) and Kokov Batraz 1995 (medium gravity injuries) (320) EUR 5,000 319. 2. Alana KOKOVA 13/12/1993 Beslan hostage (medium gravity injuries) EUR 5,000 320. 3. Batraz KOKOV 29/03/1995 Beslan hostage (medium gravity injuries) EUR 5,000 321. 4. Mairbek VARZIYEV 21/05/1996 Beslan hostage (medium gravity injuries) EUR 5,000 322. 5. Aleksandr CHEDZHEMOV 30/09/1992 Beslan hostage (grave injuries) EUR 7,000 323. 6. Lidiya RUBAYEVA 27/01/1938 Beslan mother of deceased Rubayev Artur 1963 EUR 10,000 324. 7. Artur TSAGARAYEV 22/11/1991 Beslan hostage (medium gravity injuries) EUR 5,000 325. 8. Vadim TSAGARAYEV 07/01/1994 Beslan hostage (medium gravity injuries) EUR 5,000 326. 9. Alina KANUKOVA 08/02/1990 Beslan hostage (medium gravity injuries) EUR 5,000 327. 10. Inal KANUKOV 06/01/1992 Beslan hostage EUR 3,000 328. 11. Soslan MARGIYEV 20/10/1991 Beslan hostage (medium gravity injuries) EUR 5,000 329. 12. Andzhela KODZAYEVA 16/07/1971 Beslan hostage (medium gravity injuries) EUR 5,000 330. 13. Diana AGAYEVA 18/12/1996 Beslan hostage (medium gravity injuries) EUR 5,000 331. 14. Bella NUGZAROVA 13/10/1993 Beslan hostage (medium gravity injuries) EUR 5,000 332. 15. Soslan KANUKOV 09/07/1991 Beslan hostage (medium gravity injuries) EUR 5,000 333. 16. Yelena ZAMESOVA 11/01/1972 Beslan mother of deceased Zamesova Natalya 1994 and deceased Zamesov Igor 1992 EUR 20,000 334. 17. Raisa ZHUKAYEVA 27/04/1942 Beslan hostage (grave injuries) EUR 7,000 335. 19. Ksenya TEBIYEVA 26/11/1952 Beslan mother of deceased Tebiyeva Alma 1991 EUR 10,000 336. 20. Fatima BITSIYEVA 01/11/1945 Beslan grandmother of deceased Bitsiyev Zaurbek 1996 - awarded to applicant 245 - mother 337. 21. Sergey ZHUKAYEV 25/03/1969 Beslan husband of deceased Zhukayeva Marina 1973 and father of hostages Zhukayeva Madina (grave injuries) (338) and Zhukayeva Albina 1997 (medium gravity injuries) (339) EUR 10,000 338. 22. Madina ZHUKAYEVA 26/12/1996 Beslan hostage (grave injuries) EUR 7,000 339. 23. Albina ZHUKAYEVA 04/12/1997 Beslan hostage (medium gravity injuries) EUR 5,000 340. 24. Azamat TETOV 30/10/1994 Beslan hostage (grave injuries) EUR 7,000 341. 25. Tatyana TETOVA 21/05/1940 Beslan hostage (medium gravity injuries) EUR 5,000 342. 26. Liliya KHAMATKOYEVA 23/10/1969 Beslan daughter of deceased Khamatkoyeva Rimma 1938 and mother of hostages Urusova Luiza 1993 (medium gravity injuries) (343) and Urusova Zarina 1995 (medium gravity injuries) (344) EUR 10,000 343. 27. Luiza URUSOVA 01/08/1993 Beslan hostage (medium gravity injuries) EUR 5,000 344. 28. Zarina URUSOVA 15/02/1995 Beslan hostage (medium gravity injuries) EUR 5,000 345. 29. Zemfira DZANDAROVA 19/06/1972 Beslan hostage (medium gravity injuries); mother of hostages Dzandarov Ruslan 1991 (346) (grave injuries) and Dzandarova Viktoriya 1997 (347) (medium gravity injuries) EUR 5,000 346. 30. Ruslan DZANDAROV 02/09/1991 Beslan hostage (grave injuries) EUR 7,000 347. 31. Viktoriya DZANDAROVA 11/04/1997 Beslan hostage (medium gravity injuries) EUR 5,000 348. 32. Sima ALBEGOVA 30/03/1949 Beslan hostage (grave injuries) EUR 7,000 349. 34. Roman BZIYEV 28/01/1998 Beslan hostage (medium gravity injuries) represented by tutor Dzusova Yelena; son of deceased Pliyeva (Bziyeva) Dinara 1964; grandchild of hostage Dauyeva Taisya 1938 (died on 09/08/2006) EUR 10,000 see applicant 350 – son 350. 35. Boris BZIYEV 14/11/2001 Beslan represented by tutor Dzusova Yelena; son of deceased Pliyeva (Bziyeva) Dinara 1964 EUR 5,000 see applicant 349 - son 351. 36. Alikhan Georgievich DZUSOV 26/12/1996 Beslan represented by mother Dzusova Yelena; grandchild of hostage Dauyeva Taisya 1938 (died on 09/08/2006) - Inadmissible ratione personae 352. 37. Ilona DZUSOVA 25/05/1999 Beslan hostage represented by mother Dzusova Yelena; grandchild of hostage Dauyeva Taisya 1938 (died on 09/08/2006) EUR 3,000 353. 38. Agunda VATAYEVA 25/11/1990 Beslan hostage (grave injuries); daughter of deceased Vatayeva Gulemdan 1951 EUR 13,000 see applicant 354 - daughter 354. 39. Yelizaveta VATAYEVA 21/09/1985 Beslan daughter of deceased Vatayeva Gulemdan 1951 EUR 5,000 see applicant 353 - daughter 355. 40. Alan KODZAYEV 21/11/1996 Beslan hostage (medium gravity injuries) EUR 5,000 356. 41. Inna DZANAYEVA 13/09/1990 Beslan hostage (medium gravity injuries) EUR 5,000 357. 43. Khetag GUTIYEV 03/07/1988 Beslan escaped EUR 3,000 358. 44. Azamat GUTIYEV 24/01/1992 Beslan escaped EUR 3,000 359. 45. Zarina KASTUYEVA 22/04/1993 Beslan hostage (medium gravity injuries) EUR 5,000 360. 46. Tamara BEROYEVA 20/04/1938 Beslan hostage (medium gravity injuries) EUR 5,000 361. 47. Vladimir GUBIYEV 18/10/1994 Beslan hostage (medium gravity injuries) EUR 5,000 362. 48. Bela GUBIYEVA 28/12/1991 Beslan hostage (medium gravity injuries) EUR 5,000 363. 49. Chermen PLIYEV 23/10/1995 Beslan hostage (medium gravity injuries) EUR 5,000 Bibayeva and Others v. Russia 37096/11 Mr K.N. KOROTEYEV ECHRAC/ Memorial Human Rights Centre 364. 1. Fatima BIBAYEVA 20/08/1988 Beslan hostage (medium gravity injuries) EUR 5,000 365. 3. Rozita MORDAS TSIRIKHOVA 21/10/1993 Beslan hostage (grave injuries) represented by mother Tsirikhova Aida EUR 7,000 366. 4. Lyudmila GAPPOYEVA 24/01/1941 Beslan mother of deceased Gappoyev Ruslan 1970 - see joint award with applicant 142 - wife 367. 6. Arsen KHAREBOV 28/09/1995 Beslan hostage (medium gravity injuries) represented by mother Kharebova Inga EUR 5,000 368. 7. Svetlana DZHERIYEVA 01/06/1964 Beslan hostage (medium gravity injuries); mother of hostage Chedzhemova Dana 1997 (medium gravity injuries) (369) EUR 5,000 369. 8. Dana CHEDZHEMOVA 18/07/1997 Beslan hostage (medium gravity injuries) EUR 5,000 370. 10. Rustam KABALOYEV 20/06/1993 Beslan hostage (grave injuries) represented by mother Sakiyeva Albina EUR 7,000 371. 11. Lalita URTAYEVA 29/06/1979 Beslan hostage (medium gravity injuries); mother of hostage Urtayev Taymuraz 1996 (372) (medium gravity injuries) EUR 5,000 372. 12. Taymuraz URTAYEV 28/09/1996 Beslan hostage (medium gravity injuries) EUR 5,000 373. 14. Siranush SIMONYAN 16/04/1987 Beslan hostage (medium gravity injuries) represented by mother Saribekyan Amest EUR 5,000 374. 15. Mariam SIMONYAN 06/01/1991 Beslan hostage (grave injuries) represented by mother Saribekyan Amest EUR 7,000 375. 16. Ovannes SIMONYAN 03/09/1993 Beslan hostage (light injuries) represented by mother Saribekyan Amest EUR 3,000 376. 17 Zarina PUKHAYEVA 05/04/1979 Beslan hostage (medium gravity injuries); mother of hostage Pukhayev Gennadiy 1997 (medium gravity injuries) (377) EUR 5,000 377. 18 Gennadiy PUKHAYEV 25/03/1997 Beslan hostage (medium gravity injuries) EUR 5,000 378. 20 Vladimir KUBATAYEV 27/04/1989 Beslan hostage (medium gravity injuries) represented by mother Kubatayeva Olga EUR 5,000 379. 22 David TSALLAGOV 19/09/1993 Beslan hostage (medium gravity injuries) represented by mother Tsallagova Yelena EUR 5,000 380. 23 Serafima BASIYEVA 03/01/1960 Beslan hostage (medium gravity injuries); mother of hostages Bekoyev Azamat 1989 (medium gravity injuries) (381) and Bekoyev Atsamaz 1993 (medium gravity injuries) (382) EUR 5,000 381. 24 Azamat BEKOYEV 08/12/1989 Beslan hostage (medium gravity injuries) EUR 5,000 382. 25 Atsamaz BEKOYEV 17/05/1993 Beslan hostage (medium gravity injuries) EUR 5,000 383. 27. Arsen GABISOV 28/07/1995 Beslan hostage (medium gravity injuries) represented by mother Gabisova Tamara EUR 5,000 384. 28. Larisa DZAMPAYEVA 30/09/1959 Beslan hostage (medium gravity injuries); mother of hostage Gabisova Dzerassa 1995 (385) (medium gravity injuries) EUR 5,000 385. 29. Dzerassa GABISOVA 31/10/1995 Beslan hostage (medium gravity injuries) EUR 5,000 386. 30. Madina TOKAYEVA 21/10/1988 Beslan hostage (grave injuries) EUR 7,000 387. 32. David BEDOYEV 17/10/1992 Beslan hostage (medium gravity injuries) represented by mother Bedoyeva Daniya EUR 5,000 388. 34. Anzhelika PARSIYEVA 30/07/1990 Beslan hostage (grave injuries) represented by mother Parsiyeva Irina EUR 7,000 389. 35. Raisa TOTIYEVA 01/08/1960 Beslan mother of deceased Totiyeva Larisa 1990, deceased Totiyeva Lyubov 1992, deceased Totiyeva Albina 1993, deceased Totiyev Boris 1996 EUR 40,000 390. 36. Ruslan KHUADONOV 15/03/1986 Beslan brother of deceased Khuadonova Regina 1989 - see joint award with applicants 18 – mother and 19 - sister 391. 37. Zalina BIGAYEVA 25/12/1974 Beslan hostage (medium gravity injuries); mother of hostages Bigayeva Madina (medium gravity injuries) 1996 (392) and Bigayeva Alina (medium gravity injuries) 1998 (393) EUR 5,000 392. 38. Madina BIGAYEVA 07/08/1996 Beslan hostage (medium gravity injuries) EUR 5,000 393. 39. Alina BIGAYEVA 09/01/1998 Beslan hostage (medium gravity injuries) EUR 5,000 394. 41. Madina AZIMOVA 25/12/1992 Beslan hostage (medium gravity injuries) represented by mother Bagayeva Zalina EUR 5,000 395. 42. Marina AZIMOVA 03/04/1991 Beslan hostage represented by mother Bagayeva Zalina EUR 3,000 396. 44. Tsezar KHUGAYEV 21/09/1991 Beslan hostage (medium gravity injuries) represented by father Khugayev Tamaz EUR 5,000 397. 45. Albina KHUGAYEVA 29/11/1992 Beslan hostage (grave injuries) represented by father Khugayev Tamaz EUR 7,000 398. 47. Borislav KHADIKOV 19/06/1993 Beslan hostage (medium gravity injuries) represented by mother Khanikayeva Anzhela EUR 5,000 399. 49. Georgiy ILYIN 29/11/1996 Beslan hostage (medium gravity injuries) represented by mother Kusova Fatima EUR 5,000 400. 50. Zareta KARGIYEVA 20/03/1941 Beslan mother-in-law of deceased Khubayeva Madina 1972, grandmother of deceased Khubayev Ruslan 1993 and hostage Khubayeva (Kargiyeva) Ilona (grave injuries) 1996 (408) - awarded to applicant 401 – husband and father 401. 51. Igor KARGIYEV 25/05/1965 Beslan husband of deceased Khubayeva Madina 1972 and father of deceased Khubayev Ruslan 1993 and of hostage Khubayeva (Kargiyeva) Ilona 1996 (grave injuries) (408) EUR 10,000 jointly with applicants 114 – mother and 304 –sister; and EUR 10,000 402. 52. Svetlana DZODZIYEVA 19/10/1969 Beslan hostage; mother of hostages Peliyev Georgiy 1991 (medium gravity injuries) (403) and Peliyeva Zarina 1995 (medium gravity injuries) (404) EUR 3,000 403. 53. Georgiy PELIYEV 30/07/1991 Beslan hostage (medium gravity injuries) EUR 5,000 404. 54. Zarina PELIYEVA 21/04/1995 Beslan hostage (medium gravity injuries) EUR 5,000 405. 55. Larisa SABANOVA 01/03/1952 Beslan daughter of deceased Sabanov Tarkan 1915 EUR 5,000 see applicant 406 - daughter 406. 56. Fatima SABANOVA 28/03/1948 Beslan daughter of deceased Sabanov Tarkan 1915 EUR 5,000 see applicant 405 - daughter 407. 57. Vladimir DAUROV 13/03/1969 Beslan hostage (medium gravity injuries); father of deceased Daurov David 1994 EUR 15,000 408. 58. Ilona Kargiyeva 18/06/1996 Beslan hostage (grave injuries) EUR 7,000 409. 59. Zarina Tsirikhova 1990 Beslan hostage (grave injuries) represented by mother Tsirikhova Aida EUR 7,000 Awards under Article 41 in respect of costs and expenses Application number Applicant/representative Awards under Article 41 (costs and expenses) Application no. 26562/07 Applicant Zhenya Tagayeva (applicant no. 3) EUR 792 (seven hundred ninety two) (postal expenses) Applications nos. 26562/07, 49380/08, 21294/11 and 37096/11 Lawyers of the EHRAC, to be paid directly to the EHRAC account EUR 45,000 (forty five thousand) Applications nos. 14755/08, 49339/08 and 51313/08 Mr Trepashkin, to be paid directly to his account EUR 20,000 (twenty thousand) Mr Knyazkin, to be paid directly to his account EUR 23,000 (twenty three thousand)

THIRD SECTION CASE OF INDERKINY v. RUSSIA (Application no. 10535/09) JUDGMENT STRASBOURG 12 December 2017 This judgment is final but it may be subject to editorial revision. In the case of Inderkiny v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Helen Keller, President,Pere Pastor Vilanova,Alena Poláčková, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 21 November 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 10535/09) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Russian nationals: Ms Nadezhda Viktorovna Inderkina, Mr Igor Aleksandrovich Inderkin, Mr Aleksandr Igorevich Inderkin, and Mr Andrey Igorevich Inderkin. 2. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin. 3. On 23 February 2011 the non-enforcement complaint was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicants are a family. They were born in 1971, 1968, 1992, 1995, and live in Samara. A. Judgment in the applicants’ favour 5. On 26 April 2004 the Oktyabrskiy District Court of Samara (“the Oktyabrskiy District Court”) ordered, inter alia, the management of the State unitary enterprise “16th Military Plant” (“the company”) to provide the applicants with a suitable dwelling, while keeping their names on the list of persons awaiting housing. 6. On 11 May 2004 the judgment came into force. 7. On 28 May 2004 the Department of the Bailiffs’ Service for Oktyabrskiy District of Samara opened the enforcement proceedings. 8. On 22 December 2004 the enforcement proceedings were terminated as the company had no available residential accommodation. 9. On 1 October 2007, due to the reorganisation of the company (see paragraph 16 below), the enforcement file was sent to the Department of the Bailiffs’ Service for the Engelsskiy District of Saratov Region. 10. On 21 April 2008 the bailiffs ruled that it was impossible to enforce the judgment in the part relating to the housing, as the new debtor, FGUP 9 TSARZ (see paragraph 16 below), had no available accommodation. The enforcement proceedings were terminated. 11. On 26 August 2009 the Engelsskiy District Court of Saratov Region, following the bailiffs’ application, replaced the debtor in the enforcement proceedings from FGUP 9 TSARZ to OAO 9 TSARZ (see paragraph 17 below). 12. On 14 October 2009 the Oktyabrskiy District Court clarified the judgment of 26 April 2004 stating that the applicants should be provided with an apartment in Samara. 13. Several times in 2004-2011 the parties applied to the Oktyabrskiy District Court for changing the mode of enforcement of the judgment. Each time the courts rejected the applications finding that a payment of the amount representing the cost of an apartment would be equal to modifying the original judgment. 14. The judgment of 26 April 2004 remained unenforced. B. Available information on the debtor company 15. The company was incorporated as a municipal unitary enterprise. According to its articles of association, the company’s aim was to produce goods and render services for the Ministry of Defense of Russia, as well as for meeting other public needs and making a profit. 16. Under the Order of the Federal Agency for State Property Management dated 22 September 2005 the company was joined to FGUP 9 TSARZ (FGUP 9 Tsentralnyy Avtomobilnyy Remontnyy Zavod – ФГУП 9 ЦАРЗ or ФГУП 9 Центральный Автомобильный Ремонтный Завод). The reorganisation was completed on 13 February 2007, and the latter company became the universal successor of the company. 17. In accordance with the Decree of the President of Russia of 15 September 2008 and the Decree of the Russian Government of 22 November 2008, FGUP 9 TSARZ was further reorganized into OAO 9 TSARZ, a publicly-traded private open joint-stock company incorporated under the laws of Russia. II. RELEVANT DOMESTIC LAW 18. The domestic provisions relevant to cases on the legal status of State and municipal unitary enterprises with the right of economic control are summarised in Liseytseva and Maslov v. Russia (nos. 39483/05 and 40527/10, §§ 54-127, 9 October 2014), and Samsonov v. Russia ((dec.) no. 2880/10, 18 September 2014). THE LAW I. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 19. The applicants complained of the non-enforcement of the domestic decision given in their favour and of the lack of any effective remedy in domestic law. They relied on Article 6 § 1 and Article 13 of the Convention and on Article 1 of Protocol No. 1 to the Convention, which read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 20. The Government argued that the company and its successor, FGUP 9 TSARZ, had been a separate legal entity, which carried out their commercial activities independently of the authorities. In respect of OAO 9 TSARZ, the Government submitted that its property was not owned by its founder, the Russian Federation. They submitted, therefore, that the debts of the company and its successors were not attributable to the State. The Government further argued that the applicants had effective domestic remedies in respect of the alleged violation of their rights. In particular, they could lodge a compensatory action and an action for compensation for non‑pecuniary damage. 21. The applicants maintained that the debtor company and its successors had been State‑run enterprises controlled by the authorities. They submitted that the debtor company carried out the State’s defence order and was not independent from the State. The applicants further submitted that the decision to reorganise FGUP 9 TSARZ into OAO 9 TSARZ, following privatization, was taken by the authorities. As a result, the debtor unitary enterprise seized to exist, while its debt before the applicants was not cleared. The applicants also noted that the authorities ordered the transfer of certain residential premises of FGUP 9 TSARZ mentioned in the judgment of 26 April 2004 to the municipal property. Thus, the applicants insisted that the authorities exercised the direct control over the company’s property, and made enforcement of the judgment in their favour impossible. A. Admissibility 22. The Court has held that the existing legal framework in Russia does not provide unitary enterprises with a degree of institutional and operational independence that would absolve the State from responsibility under the Convention for the debts of such companies (see Liseytseva and Maslov, cited above, §§ 193-204). In order to determine the issue of State responsibility for the debts of unitary enterprises, the Court must examine whether and how the extensive powers of control provided for in domestic law were actually exercised by the authorities in the present case. 23. The Court notes that the debtor company was set up to produce the goods and services for the national defence sector (see paragraph 15 above). In these circumstances, the Court considers that the company exercised a public duty and was, by virtue of its functions, placed under the actual strict control of the authorities. 24. Furthermore, the actual degree of the State’s control over the debtor company was demonstrated by the fact that the decision to reorganize, first, the company and, later, its successor FGUP 9 TSARZ was taken by the federal authorities and during the reorganization the debts of the predecessor had not been satisfied (Yershova v. Russia, no. 1387/04, § 60, 8 April 2010, and Liseytseva and Maslov, cited above, § 206). 25. In the light of the above and the Court’s case-law on the matter (see Liseytseva and Maslov, cited above, §§ 208-19), the Court finds that the debtor company did not enjoy sufficient institutional and operational independence from the authorities, and dismisses the Government’s ratione personae objection. Accordingly, the State is to be held responsible under the Convention for the debt owed by the respondent company to the applicants, in accordance with the final judgment in their favour. 26. The Court further notes that the applicants’ complaints under Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. They are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 27. The Court notes that the judgment in the applicants’ favour has not been enforced to date. 28. The Court has established above that the State is responsible under the Convention for the debts owed by the respondent company. By failing to comply with the judgment for more than five years (see §§ 5-17 above), the national authorities prevented the applicants from receiving what they could reasonably have expected to receive. The Court has found a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention in respect of issues similar to those in the present case (see Liseytseva and Maslov, cited above, §§ 208-24, and Gerasimov and Others v. Russia, nos. 29920/05 and 10 others, §§ 167-83, 1 July 2014). 29. As regards the effective remedies available to the applicants, the Court has already held, with respect to similar situations in Liseytseva and Maslov (cited above, §§ 165‑72), that there were no effective remedies available to the applicants in their attempt to obtain either the execution of awards made against municipal unitary enterprises or compensation for the alleged violations. 30. Accordingly, there has been a violation of Article 6 § 1 and Article 13 of the Convention and of Article 1 of Protocol No. 1 to the Convention on account of the non-enforcement of the final and binding judgment in the applicants’ favour and the lack of effective remedies. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 31. The applicants also complained with reference to Articles 6 and 14 of the Convention and Article 2 of Protocol No. 2 to the Convention about length of proceedings, their alleged shortcomings and unfairness. 32. Having regard to all the material in its possession in so far as the complaints fall within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill‑founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 33. 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 34. The applicants claimed 3,285,000 Russian roubles (RUB) representing the cost of an apartment they should have obtained under the judgment of 26 April 2004 in respect of pecuniary damage. Each applicant further claimed 6,000 euros (EUR) in respect of non-pecuniary damage. 35. The Government argued that the alleged violations were not attributable to the State, and that the claims were unjustified. In respect of the pecuniary damage, the Government submitted that the applicants did not substantiate their claims, and that the Oktyabrskiy District Court on several occasions had refused to award the applicants the monetary sum instead of an apartment as it would have changed the initial judgment of 26 April 2004 (see paragraph 13 above). In respect of non-pecuniary damage, the Government argued that the applicants’ claims were excessive, and compensation for such damage should not be awarded as there had been no violation of the applicants’ rights. 36. The Court refers at the outset to its consistent position that the enforcement of the domestic judgment remains the most appropriate form of redress in respect of violations of Article 6 like the one found in the present case (see, among many other authorities, Kalinkin and Others v. Russia, nos. 16967/10 and 20 others, § 55, 17 April 2012, and Ilyushkin and Others v. Russia, nos. 5734/08 and 28 others, § 64, 17 April 2012). The Court therefore finds that the respondent State must secure, without further delay, the enforcement by appropriate means of the judgment in the applicants’ favour. 37. As to the non-pecuniary damage, the Court considers it reasonable and equitable to award the applicants jointly EUR 2,000, plus any tax that may be chargeable, in respect of non-pecuniary damage (Voronkov v. Russia, no. 39678/03, §§ 68‑69, 30 July 2015). B. Costs and expenses 38. The applicants also claimed RUB 22,938.40 for the costs and expenses. The amount included postal expenses, legal services, translation services, and the expenses for assessment of property. The applicants enclosed the relevant receipts. 39. The Government argued that the applicants had failed to enclose the agreements in respect of the above-mentioned services. In respect of the legal services, the Government submitted that only RUB 10,000 concerned the proceedings at the Court. 40. 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. Regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 424 for costs and expenses in the proceedings before the Court. C. Default interest 41. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaint concerning non-enforcement of the judgment of 26 April 2004 admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 and Article 13 of the Convention and of Article 1 of Protocol No. 1 to the Convention on account of the non-enforcement of the final and binding judgment in the applicants’ favour and the lack of effective remedies; 3. Holds (a) that the respondent State, within three months, shall secure, by appropriate means, the enforcement of the judgment of 26 April 2004; (b) that the respondent State is to pay jointly 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 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 424 (four hundred and twenty four euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses; (c) 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; 4. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 12 December 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıHelen KellerDeputy RegistrarPresident

GRAND CHAMBER CASE OF ÖCALAN v. TURKEY (Application no. 46221/99) JUDGMENT STRASBOURG 12 May 2005 This judgment is final but may be subject to editorial revision. In the case of Öcalan v. Turkey, The European Court of Human Rights, sitting as a Grand Chamber composed of: MrL. Wildhaber, President,MrC.L. Rozakis,MrJ.-P. Costa,MrG. Ress,SirNicolas Bratza,MrsE. Palm,MrL. Caflisch,MrL. Loucaides,MrR. Türmen,MrsV. Strážnická,MrP. Lorenzen,MrV. Butkevych,MrJ. Hedigan,MrM. Ugrekhelidze,MrL. Garlicki,MrJ. Borrego Borrego,MrsA. Gyulumyan, judges,and Mr P.J. Mahoney, Registrar, Having deliberated in private on 9 June 2004 and 19 January 2005, Delivers the following judgment, which was adopted in its final form after further consideration on 22 April 2005. PROCEDURE 1. The case originated in an application (no. 46221/99) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Abdullah Öcalan (“the applicant”), on 16 February 1999. 2. The applicant was represented by Sir Sydney Kentridge, Mr M. Muller and Mr T. Otty, who are London barristers, and Ms A. Tuğluk of the Istanbul Bar. The Turkish Government (“the Government”) were represented by their Co-Agents in the present case, Mr Ş. Alpaslan, of the Istanbul Bar, and Mr M. Özmen. 3. The applicant alleged, in particular, violations of various provisions of the Convention, namely Articles 2 (right to life), 3 (prohibition of ill‑treatment), 5 (right to liberty and security), 6 (right to a fair trial), 7 (no punishment without law), 8 (right to respect for private and family life), 9 (freedom of thought, conscience and religion), 10 (freedom of expression), 13 (right to an effective remedy), 14 (prohibition of discrimination), 18 (limitation on use of restrictions on rights) and 34 (right of individual application). 4. The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). 5. On 4 March 1999 the Court requested that the Government take interim measures within the meaning of Rule 39, notably to ensure that the requirements of Article 6 were complied with in proceedings which had been instituted against the applicant in the National Security Court and that the applicant was able to exercise his right of individual application to the Court effectively through lawyers of his own choosing. On 8 March 1999 the Government filed their observations. The applicant's representatives did likewise on 12 March 1999. On 23 March 1999 the Court invited the Government to clarify specific points concerning the measures that had been taken pursuant to Rule 39 to ensure that the applicant had a fair trial. On 9 April 1999 the legal adviser at the Turkish Permanent Delegation to the Council of Europe stated that the Government were not prepared to reply to the Court's questions, as they went far beyond the scope of interim measures within the meaning of Rule 39. On 29 April 1999 the Court decided to communicate the application to the Government for their observations on its admissibility and merits. The Government filed their observations on 31 August 1999. The applicant filed his observations in reply on 27 September and 29 October 1999. On 2 July 1999 one of the applicant's representatives requested that the Court invite the Government to “stay the decision to execute the death penalty imposed on the applicant on 29 June 1999 until the Court has decided the merits of his complaints”. On 6 July 1999 the Court decided that the request for Rule 39 to be applied could be considered if the applicant's sentence were upheld by the Court of Cassation. On 30 November 1999 the Court decided to indicate the following interim measure to the Government: “The Court requests the respondent State to take all necessary steps to ensure that the death penalty is not carried out so as to enable the Court to proceed effectively with the examination of the admissibility and merits of the applicant's complaints under the Convention.” 6. A hearing concerning both the admissibility and the merits of the complaints (Rule 54 § 4) took place in public in the Human Rights Building, Strasbourg, on 21 November 2000. 7. By a decision of 14 December 2000, the application was declared partly admissible by a Chamber of the First Section, composed of: Mrs E. Palm, President, Mrs W. Thomassen, Mr Gaukur Jörundsson, Mr R. Türmen, Mr C. Bîrsan, Mr J. Casadevall and Mr R. Maruste, judges, and Mr M. O'Boyle, Section Registrar. 8. The Chamber delivered its judgment on 12 March 2003. It held unanimously that there had been a violation of Article 5 § 4 of the Convention on account of the lack of a remedy by which the applicant could have the lawfulness of his detention in police custody determined; unanimously that there had been no violation of Article 5 § 1 of the Convention; unanimously that there had been a violation of Article 5 § 3 of the Convention on account of the failure to bring the applicant before a judge promptly after his arrest; by six votes to one that there had been a violation of Article 6 § 1 of the Convention in that the applicant had not been tried by an independent and impartial tribunal; unanimously that there had been a violation of Article 6 § 1 of the Convention, taken in conjunction with Article 6 § 3 (b) and (c), in that the applicant had not had a fair trial; unanimously that there had been no violation of Article 2 of the Convention; unanimously that there had been no violation of Article 14 of the Convention, taken in conjunction with Article 2, as regards the implementation of the death penalty; unanimously that there had been no violation of Article 3 of the Convention as regards the complaint relating to the implementation of the death penalty; by six votes to one that there had been a violation of Article 3 of the Convention on account of the imposition of the death penalty following an unfair trial; unanimously that there had been no violation of Article 3 of the Convention either as regards the conditions in which the applicant had been transferred from Kenya to Turkey or the conditions of his detention on the island of İmralı; unanimously that no separate examination was necessary of the applicant's remaining complaints under Articles 7, 8, 9, 10, 13, 14 and 18 of the Convention, taken individually or in conjunction with the aforementioned provisions of the Convention; and unanimously that there had been no violation of Article 34 in fine of the Convention. The partly dissenting opinion of Mr Türmen was annexed to the judgment. 9. On 9 June 2003 the applicant, and on 11 June 2003 the Government, requested that the case be referred to the Grand Chamber in accordance with Article 43 of the Convention and Rule 73. On 9 July 2003 a panel of the Grand Chamber decided to refer the case to the Grand Chamber. 10. The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24. In accordance with Article 23 § 7 of the Convention and Rule 24 § 4, Mrs Palm continued to sit in the case following the expiry of her term of office. 11. The applicant and the Government each filed observations on the merits and comments on each other's observations. 12. A hearing took place in public in the Human Rights Building, Strasbourg, on 9 June 2004 (Rule 59 § 3). There appeared before the Court: (a)for the GovernmentMr Ş. Alpaslan, Mr M. Özmen, Co-Agents;Mr E. İşcan, Ms İ. Altıntaş,Ms B. Arı,Ms B. Özaydın,Mr A. Çiçek,Mr M. Tire,Mr K. Tambaşar,Mr N. Üstüner,Mr B. Çalışkan,Mr O. Nalcıoğlu,Ms N. Erdim, Counsel; (b)for the applicantSir Sydney Kentridge QC, Mr M. Muller,Mr T. Otty,Ms A. Tuğluk,Counsel,Mr K.Yildız,Mr M. Sakhar,Mr İ. DündarMr F. Aydınkaya,Mr L. Chralambous, Ms A. Stock, Advisers. The Court heard addresses by Sir Sydney Kentridge, Mr Muller, Mr Otty, Ms Tuğluk and Mr Alpaslan. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 13. The applicant was born in 1949 and is currently being held in İmralı Prison (Mudanya, Bursa, Turkey). Prior to his arrest, he was the leader of the PKK (Workers' Party of Kurdistan). The facts of the case, as submitted by the parties, may be summarised as follows. A. The applicant's arrest and transfer to Turkey 14. On 9 October 1998 the applicant was expelled from Syria, where he had been living for many years. He arrived the same day in Greece, where the Greek authorities asked him to leave Greek territory within two hours and refused his application for political asylum. On 10 October 1998 the applicant travelled to Moscow in an aircraft that had been chartered by the Greek secret services. His application for political asylum in Russia was accepted by the Duma, but the Russian Prime Minister did not implement that decision. 15. On 12 November 1998 the applicant went to Rome, where he made an application for political asylum. The Italian authorities initially detained him but subsequently placed him under house arrest. Although they refused to extradite him to Turkey, they also rejected his application for refugee status and the applicant had to bow to pressure for him to leave Italy. After spending either one or two days in Russia, he returned to Greece, probably on 1 February 1999. The following day (2 February 1999), the applicant was taken to Kenya. He was met at Nairobi Airport by officials from the Greek embassy and accommodated at the ambassador's residence. He lodged an application with the Greek ambassador for political asylum in Greece, but never received a reply. 16. On 15 February 1999 the Kenyan Ministry of Foreign Affairs announced that Mr Öcalan had been on board an aircraft that had landed in Nairobi on 2 February 1999 and had entered Kenyan territory accompanied by Greek officials without declaring his identity or going through passport control. It added that the Kenyan Minister for Foreign Affairs had summoned the Greek ambassador in Nairobi in order to elicit information about the applicant's identity. After initially stating that the person concerned was not Mr Öcalan, on being pressed by the Kenyan authorities the Greek ambassador had gone on to acknowledge that it was in fact him. The Kenyan Minister for Foreign Affairs had been informed by the Greek ambassador that the authorities in Athens had agreed to arrange for Mr Öcalan's departure from Kenya. The Kenyan Minister for Foreign Affairs also stated that Kenyan diplomatic missions abroad had been the target of terrorist attacks and that the applicant's presence in Kenya constituted a major security risk. In those circumstances, the Kenyan government was surprised that Greece, a State with which it enjoyed friendly relations, could knowingly have put Kenya in such a difficult position, exposing it to suspicion and the risk of attacks. Referring to the Greek ambassador's role in the events, the Kenyan government indicated that it had serious reservations about his credibility and requested his immediate recall. The Kenyan Minister for Foreign Affairs added that the Kenyan authorities had played no part in the applicant's arrest and had had no say in the choice of his final destination. The Minister had not been informed of any operations by Turkish forces at the time of the applicant's departure and there had been no consultations between the Kenyan and Turkish governments on the subject. 17. On the final day of his stay in Nairobi, the applicant was informed by the Greek ambassador after the latter had returned from a meeting with the Kenyan Minister for Foreign Affairs that he was free to leave for the destination of his choice and that the Netherlands were prepared to accept him. On 15 February 1999 Kenyan officials went to the Greek embassy to take Mr Öcalan to the airport. The Greek ambassador said that he wished to accompany the applicant to the airport in person and a discussion between the ambassador and the Kenyan officials ensued. In the end, the applicant got into a car driven by a Kenyan official. On the way to the airport, this car left the convoy and, taking a route reserved for security personnel in the international transit area of Nairobi Airport, took him to an aircraft in which Turkish officials were waiting for him. The applicant was then arrested after boarding the aircraft at approximately 8 p.m. 18. The Turkish courts had issued seven warrants for Mr Öcalan's arrest and a wanted notice (Red Notice) had been circulated by Interpol. In each of those documents, the applicant was accused of founding an armed gang in order to destroy the territorial integrity of the Turkish State and of instigating various terrorist acts that had resulted in loss of life. On the flight from Kenya to Turkey, the applicant was accompanied by an army doctor from the moment of his arrest. A video recording and photographs taken of Mr Öcalan in the aircraft for use by the police were leaked to the press and published. In the meantime, the inmates of İmralı Prison were transferred to other prisons. 19. The applicant was kept blindfolded throughout the flight except when the Turkish officials wore masks. The blindfold was removed as soon as the officials put their masks on. According to the Government, the blindfold was removed as soon as the aircraft entered Turkish airspace. The applicant was taken into custody at İmralı Prison on 16 February 1999. On the journey from the airport in Turkey to İmralı Prison, he wore a hood. In photographs that were taken on the island of İmralı in Turkey, the applicant appears without a hood or blindfold. He later said that he had been given tranquillisers, probably at the Greek embassy in Nairobi. B. Police custody on the island of İmralı 20. From 16 February 1999 onwards, the applicant was interrogated by members of the security forces. On 20 February 1999 a judge ruled on the basis of information in the case file that he should remain in police custody for a further three days as the interrogation had not been completed. 21. Judges and prosecutors from the Ankara National Security Court arrived on the island of İmralı on 21 February 1999. 22. According to the applicant, on 22 February 1999 sixteen lawyers instructed by his family applied to the National Security Court for permission to see him. They were informed verbally that only one lawyer would be allowed access. Lawyers who went to Mudanya (the embarkation point for the island of İmralı) on 23 February 1999 were told by the administrative authorities that they could not visit the applicant. The applicant also alleges that his lawyers were harassed by a crowd at the instigation of plain-clothes police officers or at least with their tacit approval. 23. As soon as the applicant's detention began, the island of İmralı was decreed a prohibited military zone. According to the applicant, the security arrangements in his case were managed by a “crisis desk” set up at Mudanya. It was the crisis desk that was responsible for granting lawyers and other visitors access to the applicant. According to the Government, special measures were taken to ensure the applicant's safety. He had many enemies who might have been tempted to make an attempt on his life, and it was for security reasons that lawyers were searched. 24. On 22 February 1999 the public prosecutor at the Ankara National Security Court questioned the applicant and took a statement from him as an accused. The applicant told the prosecutor that he was the founder of the PKK and its current leader. Initially, his and the PKK's aim had been to found an independent Kurdish State, but with the passage of time they had changed their objective and sought to secure a share of power for the Kurds as a free people who had played an important role in the founding of the Republic. The applicant confessed that village guards were a prime target for the PKK. He also confirmed that the PKK had used violent methods against civilians, in particular from 1987 onwards, but that he was personally opposed to such methods and had tried in vain to prevent their being used. He told the prosecutor that the warlords who wanted to seize power within the PKK had exerted part of their pressure on the Kurdish population; some of these warlords had been tried and found guilty by the PKK and had been executed with his personal approval. He acknowledged that the Turkish government's estimate of the number of those killed or wounded as a result of the PKK's activities was fairly accurate, that the actual number might even be higher, and that he had ordered the attacks as part of the armed struggle being waged by the PKK. He added that he had decided in 1993 to declare a ceasefire, acting on a request by the Turkish President, Mr Özal, which had been conveyed to him by the Kurdish leader Celal Talabani. The applicant also told the prosecutor that after leaving Syria on 9 October 1998 he had gone first to Greece and then to Russia and Italy. When the latter two countries refused to grant him the status of political refugee, he had been taken to Kenya by the Greek secret services. C. Appearance before a judge and pre-trial detention 25. On 23 February 1999 the applicant appeared before a judge of the Ankara National Security Court, who ordered that he should be detained pending trial. The applicant did not apply to the National Security Court to have that decision set aside. Before the judge he repeated the statement he had made to the prosecutor. He said that decisions taken within the PKK were submitted to him as founder and leader of the organisation for final approval. In the period from 1973 to 1978, the PKK's activities had been political. In 1977 and 1978, the PKK had organised armed attacks on the ağalar (major landowners). In 1979, following a visit by the applicant to Lebanon, the PKK had begun its paramilitary preparations. Since 1984, the PKK had carried on an armed struggle within Turkey. The regional leaders decided on armed actions and the applicant confirmed the general plan for such actions. He had taken the strategic and tactical decisions for the organisation as a whole. The units had carried out the decisions. D. Contact with the outside world during the judicial investigation and conditions at İmralı Prison 26. On the day after the applicant's arrival in Turkey, his Turkish lawyer, Mr Feridun Çelik, asked to visit him. He was prevented by members of the security forces from leaving the premises of the Diyarbakır Human Rights Association and was subsequently arrested together with seven other lawyers. 27. At Istanbul Airport on 17 February 1999, Ms Böhler, Ms Prakken and their partner Mr Koppen were refused leave to enter Turkey to visit the applicant, on the grounds that they could not represent him in Turkey and that Ms Böhler's past history (she was suspected of having campaigned against Turkey's interests and of having taken part in meetings organised by the PKK) created a risk of prejudice to public order in Turkey. 28. On 25 February 1999 the applicant was able to talk to two of the sixteen lawyers who had asked to see him, Mr Z. Okçuoğlu and Mr H. Korkut. The first conversation took place in the presence of a judge and of members of the security forces wearing masks. The latter decided that it should not last longer than twenty minutes. The record of that conversation was handed over to the National Security Court. The applicant's other representatives were given leave to have their authority to act before the Court signed and to see their client later. 29. During the preliminary investigation between 15 February 1999, when the applicant was arrested, and 24 April 1999, when the trial began, the applicant had twelve meetings in private with his lawyers. The dates and duration of the meetings were as follows: 11 March (45 minutes), 16 March (1 hour), 19 March (1 hour), 23 March (57 minutes), 26 March (1 hour 27 minutes), 2 April (1 hour), 6 April (1 hour), 8 April (61 minutes), 12 April (59 minutes), 15 April (1 hour), 19 April (1 hour) and 22 April (1 hour). 30. According to the applicant, his conversations with his lawyers were monitored from behind glass panels and filmed with a video camera. After the first two short visits, the applicant's contact with his lawyers was restricted to two visits per week, lasting an hour each. On each visit, the lawyers were searched five times and required to fill in a very detailed questionnaire. He and his advisers were not allowed to exchange documents or take notes at their meetings. The applicant's representatives were unable to give him either a copy of his case file (other than the bill of indictment, which was served by the prosecution) or any other material that would allow him to prepare his defence. 31. According to the Government, no restrictions were placed on the applicant as regards either the number of visits by his lawyers or their duration. Apart from the first visit, which took place under the supervision of a judge and members of the security forces, the meetings were held subject to the restrictions provided for in the Code of Criminal Procedure. In order to ensure their safety, the lawyers were taken to the island of İmralı by boat after embarking at a private quay. Hotel rooms were booked for them near the embarkation point. According to the Government, no restrictions were placed on the applicant's correspondence. 32. In the meantime, on 2 March 1999, delegates of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited İmralı Prison. In a letter of 22 March 1999 to the representatives of the Government, they indicated that the applicant was physically in good health and his cell was comfortable. The CPT drew the Government's attention to the fact that the applicant's solitary confinement and his limited access to the open air could affect him psychologically. 33. The CPT delegates next visited İmralı Prison, where the applicant is the sole inmate, as part of their mission to Turkey from 2 to 14 September 2001. The delegates found that the cell occupied by the applicant was large enough to accommodate a prisoner and equipped with a bed, table, armchair and bookshelves. It also had an air-conditioning system, washing and toilet facilities and a window overlooking an inner courtyard. The applicant had access to books, newspapers and a radio, but not to television programmes or a telephone. However, he received twice daily medical checks by doctors and, in principle, was visited by his lawyers once a week. 34. On its visit of 16-17 February 2003, the CPT noted that visits to the applicant by his lawyers and members of his family were often cancelled owing to adverse weather conditions and inadequate means of transport. E. The trial at the National Security Court 35. In a bill of indictment preferred on 24 April 1999 (and joined to several others that had been drawn up in the applicant's absence by various public prosecutors' offices between 1989 and 1998), the public prosecutor at the Ankara National Security Court accused the applicant of activities carried out for the purpose of bringing about the secession of part of the national territory. He sought the death penalty under Article 125 of the Criminal Code. 36. The case file ran to 17,000 pages and had been prepared by joining the files in seven sets of proceedings that were pending against the applicant in various national security courts. The applicant's lawyers were given access to the case file and the bill of indictment on 7 May 1999. Since the judicial authorities had not been able to supply a copy of the file, the applicant's lawyers had brought their own photocopier and finished copying the file on 15 May 1999. The prosecution had omitted to include certain documents in it, such as those concerning the applicant's arrest in Kenya and his transfer to Turkey. 37. The first two hearings, held in Ankara on 24 and 30 March 1999 in the applicant's absence, were taken up with procedural matters, such as third-party applications to intervene in the proceedings or the measures to be taken in readiness for the hearings on the island of İmralı and to enable the parties to take part in and members of the public to attend the trial. According to the Government, allegations that the lawyers were harassed by the police when they emerged from the first hearing in Ankara on 24 March 1999 have been the subject of a criminal investigation. 38. From 31 May to 29 June 1999, the National Security Court held eight hearings attended by the applicant on the island of İmralı. The applicant told the court, among other things, that he stood by his statements to the prosecutor and the judge. He confirmed that he was the most senior PKK agent and leader of the organisation and that he had instructed the members of the organisation to carry out certain acts. He said that he had not been ill-treated or verbally abused since his arrest. The applicant's representatives argued that the National Security Court could not be regarded as an independent and impartial tribunal within the meaning of Article 6 of the Convention. The applicant stated that, for his part, he accepted the court's jurisdiction. 39. The applicant said that he was willing to cooperate with the Turkish State in order to bring to an end the acts of violence associated with the Kurdish question and promised to halt the PKK's armed struggle. He indicated that he wished to “work for peace and fraternity and achieve that aim within the Republic of Turkey”. He observed that, while he had initially envisaged an armed struggle for the independence of the population of Kurdish origin, that had been in reaction to the political pressure the government had exerted on the Kurdish population. When circumstances changed, he had decided on a different approach and limited his demands to autonomy or to a recognition of the Kurds' cultural rights within a democratic society. He accepted political responsibility for the PKK's general strategy, but disclaimed criminal liability for acts of violence which went beyond the PKK's stated policy. In order to highlight the rapprochement between the PKK and the government, he applied to have the government officials who had conducted negotiations with the PKK examined as witnesses for the defence. That application was refused by the National Security Court. 40. The applicant's lawyers' applications for the communication of additional documents or for further investigations in order to collect more evidence were refused by the National Security Court on the ground that they were delaying tactics. 41. The applicant's lawyers complained to the National Security Court about the restrictions and the difficulties they were having in conferring with their client. Their request to be permitted to confer with him during lunch breaks was accepted by the National Security Court at a hearing on 1 June 1999. The lawyers did not appear at the hearing on 3 June 1999. At their request, transcripts of that hearing and copies of the documents placed in the file were given to them and the applicant on 4 June 1999. One of the applicant's counsel thanked the National Security Court for having established a dispassionate atmosphere. 42. On 8 June 1999 the prosecution made their final submissions. They sought the death penalty for the applicant under Article 125 of the Criminal Code. The applicant's advisers requested a one-month adjournment to enable them to prepare their final submissions. The National Security Court granted them fifteen days, the statutory maximum allowed. 43. On 18 June 1999 Turkey's Grand National Assembly amended Article 143 of the Constitution to exclude both military judges and military prosecutors from national security courts. Similar amendments were made on 22 June 1999 to the law on national security courts. 44. At the hearing on 23 June 1999, the judge who had been appointed to replace the military judge sat as a member of the trial court for the first time. The National Security Court noted that the new judge had already read the file and the transcripts, in accordance with Article 381 § 2 of the Code of Criminal Procedure, and had followed the proceedings from the outset and attended the hearings. Counsel for the applicant opposed the appointment of the civilian judge owing to his previous involvement in the case. Their application for an order requiring him to stand down was dismissed by the National Security Court. 45. At the same hearing, counsel for the applicant set out the applicant's substantive defence to the charges. 46. On 29 June 1999, after hearing the applicant's final representations, the Ankara National Security Court found the applicant guilty of carrying out acts designed to bring about the secession of part of Turkey's territory and of training and leading a gang of armed terrorists for that purpose. It sentenced him to death under Article 125 of the Criminal Code. It found that the applicant was the founder and principal leader of the organisation, whose aim was to detach a part of the territory of the Republic of Turkey so as to form a Kurdish State with a political regime based on Marxist-Leninist ideology. The National Security Court found that it had been established that, following decisions taken by the applicant and on his orders and instructions, the PKK had carried out several armed attacks, bomb attacks, acts of sabotage and armed robberies, and that in the course of those acts of violence thousands of civilians, soldiers, police officers, village guards and public servants had been killed. The court did not accept that there were mitigating circumstances allowing the death penalty to be commuted to life imprisonment, having regard, among other things, to the very large number and the seriousness of the acts of violence, the thousands of deaths caused by them, including those of children, women and old people, and the major, pressing threat to the country that those acts posed. F. The appeal on points of law 47. The applicant appealed on points of law against the above judgment, which, on account of the severity of the sentence, was in any event automatically subject to review by the Court of Cassation. 48. In a judgment adopted on 22 November 1999 and delivered on 25 November, the Court of Cassation upheld the judgment of 29 June 1999 in every respect. It held that the replacement of the military judge by a civilian judge during the trial did not require the earlier procedural steps to be taken again given that the new judge had followed the proceedings from the beginning and that the law itself required that the proceedings should continue from the stage they had reached at the time of the replacement. The Court of Cassation also pointed out that the Ankara National Security Court was empowered by law to hold its hearings outside the area of its territorial jurisdiction on security grounds, among other reasons. 49. As to the merits, the Court of Cassation had regard to the fact that the applicant was the founder and president of the PKK. It referred to the latter's aim and activities, namely that it sought the foundation of a Kurdish State on a territory that Turkey should be made to cede after an armed struggle and to that end carried out armed attacks and sabotage against the armed forces, industrial premises and tourist facilities in the hope of weakening the authority of the State. The PKK also had a political front (the ERNK) and a military wing (the ARNK), which operated under its control. Its income was derived mainly from “taxes”, “fines”, donations, subscriptions, and the proceeds of armed robberies, gun-running and drug trafficking. According to the Court of Cassation, the applicant led all three of these groups. In his speeches at party conferences, in his radio and television appearances and in the orders he had given to his activists, the applicant had instructed his supporters to resort to violence, indicated combat tactics, imposed penalties on those who did not obey his instructions and incited the civilian population to put words into action. As a result of the acts of violence carried out by the PKK from 1978 until the applicant's arrest (in all, 6,036 armed attacks, 3,071 bomb attacks, 388 armed robberies and 1,046 kidnappings), 4,472 civilians, 3,874 soldiers, 247 police officers and 1,225 village guards had died. 50. The Court of Cassation held that the PKK, founded and led by the applicant, represented a substantial, serious and pressing threat to the country's integrity. It ruled that the acts of which the applicant was accused constituted the offence laid down in Article 125 of the Criminal Code and that it was not necessary, in order for that provision to apply, for the applicant – the founder and president of the PKK and the instigator of the acts of violence committed by that organisation – personally to have used a weapon. G. Commutation of the death penalty to life imprisonment 51. In October 2001, Article 38 of the Constitution was amended so that the death penalty could no longer be ordered or implemented other than in time of war or of imminent threat of war, or for acts of terrorism. By Law no. 4771, which was published on 9 August 2002, the Turkish Grand National Assembly resolved, inter alia, to abolish the death penalty in peacetime (that is to say except in time of war or of imminent threat of war) and to make the necessary amendments to the relevant legislation, including the Criminal Code. As a result of the amendments, a prisoner whose death sentence for an act of terrorism has been commuted to life imprisonment must spend the rest of his life in prison. By a judgment of 3 October 2002, the Ankara National Security Court commuted the applicant's death sentence to life imprisonment. It ruled that the offences under Article 125 of the Criminal Code of which the applicant had been accused had been committed in peacetime and constituted terrorist acts. The Nationalist Action Party (MHP – Milliyetçi Hareket Partisi), a political party with representatives in Parliament, applied to the Constitutional Court for an order setting aside certain provisions of Law no. 4771, including the provision abolishing the death penalty in peacetime for persons found guilty of terrorist offences. The Constitutional Court dismissed that application in a judgment of 27 December 2002. II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A. Provisions on National Security Courts 52. Before the Constitution was amended on 18 June 1999, Article 143 provided that national security courts were to be composed of a president, two other full members and two substitute members. The president of the national security court, one of the full members and one of the substitute members were to be civilian judges, and the other full member and substitute member were to be military judges. 53. As amended by Law no. 4388 of 18 June 1999, Article 143 of the Constitution provides: “... National security courts shall be composed of a president, two other full members, a substitute member, a public prosecutor and a sufficient number of assistant prosecutors. The president, two full members, a substitute member and the public prosecutor shall be appointed from among judges and public prosecutors of the first rank and assistant prosecutors from among public prosecutors of other ranks. Appointments shall be made for four years by the Council of the National Legal Service, in accordance with procedures laid down in special legislation. Their terms of office shall be renewable ...” 54. The necessary amendments concerning the appointment of the judges and public prosecutors were made to Law no. 2845 on national security courts by Law no. 4390 of 22 June 1999. By the terms of provisional section 1 of Law no. 4390, the terms of office of the military judges and military prosecutors in service in the national security courts were to end on the date of publication of that Law (22 June 1999). By provisional section 3 of the same Law, proceedings pending in the national security courts on the date of publication of the Law were to continue from the stage they had reached by that date. B. Article 125 of the Turkish Criminal Code “Anyone committing an act designed to subject the State or a part of the State to the domination of a foreign State, to diminish its independence or to impair its unity, or which is designed to remove from the administration of the State a part of the territory under its control shall be liable to the death penalty.” C. Review of the lawfulness of detention 55. The fourth paragraph of Article 128 of the Code of Criminal Procedure (as amended by Law no. 3842 of 18 November 1992) provides that any person who has been arrested and/or in respect of whom a prosecutor has made an order for his continued detention may challenge that measure before the appropriate district judge and, if successful, be released. 56. Section 1 of Law no. 466 on the payment of compensation to persons unlawfully arrested or detained provides: “Compensation shall be paid by the State in respect of all damage sustained by persons: (1) who have been arrested or detained under conditions or in circumstances incompatible with the Constitution or statute; (2) who have not been immediately informed of the reasons for their arrest or detention; (3) who have not been brought before a judicial officer after being arrested or detained within the time allowed by statute for that purpose; (4) who have been deprived of their liberty without a court order after the statutory time allowed for being brought before a judicial officer has expired; (5) whose close family have not been immediately informed of their arrest or detention; (6) who, after being arrested or detained in accordance with the law, are not subsequently committed for trial ..., or are acquitted or discharged after standing trial; (7) who have been sentenced to a term of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only ...” 57. Article 144 of the Code of Criminal Procedure provides that, in principle, anyone arrested or detained pending trial may speak with his legal representative in private, whether or not the latter has an authority to act. The version of Article 144 that applied to proceedings in the national security courts at the material time was the version as worded prior to the amendments of 18 November 1992. It provided that members of the national legal service were entitled to be present at meetings between the accused and their lawyers before the commencement of the criminal proceedings. D. The Council of Europe and the death penalty 58. Protocol No. 6 to the Convention provides (Article 1): “The death penalty shall be abolished. No one shall be condemned to such penalty or executed.” Article 2 of Protocol No. 6 provides: “A State may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war; such penalty shall be applied only in the instances laid down in the law and in accordance with its provisions. The State shall communicate to the Secretary General of the Council of Europe the relevant provisions of that law.” Protocol No. 6 has been ratified by forty-four member States of the Council of Europe and signed by two others (Monaco and Russia). Protocol No. 13 to the Convention, which provides for the abolition of the death penalty in all circumstances, was opened for signature on 3 May 2002. The Preamble to Protocol No. 13 reads: “The member States of the Council of Europe signatory hereto, Convinced that everyone's right to life is a basic value in a democratic society and that the abolition of the death penalty is essential for the protection of this right and for the full recognition of the inherent dignity of all human beings; Wishing to strengthen the protection of the right to life guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950 (hereinafter referred to as 'the Convention'); Noting that Protocol No. 6 to the Convention, concerning the Abolition of the Death Penalty, signed at Strasbourg on 28 April 1983, does not exclude the death penalty in respect of acts committed in time of war or of imminent threat of war; Being resolved to take the final step in order to abolish the death penalty in all circumstances, Have agreed as follows: ...” Article 1 of Protocol No. 13 states: “The death penalty shall be abolished. No one shall be condemned to such penalty or executed.” Protocol No. 13 has been signed by forty-three member States of the Council of Europe and ratified by twenty-nine. It came into force on 1 July 2003 after the tenth ratification. Three member States of the Council of Europe (Armenia, Azerbaijan and Russia) have not yet signed it. In its Opinion No. 233 (2002) on the Draft Protocol to the European Convention on Human Rights concerning the abolition of the death penalty in all circumstances, the Parliamentary Assembly of the Council of Europe referred to: “2. ... its most recent resolutions on the subject, Resolution 1187 (1999) on Europe: a death-penalty free continent, and Resolution 1253 (2001) on the abolition of the death penalty in Council of Europe Observer states, in which it reaffirmed its beliefs that the application of the death penalty constitutes inhuman and degrading punishment and a violation of the most fundamental right, that to life itself, and that capital punishment has no place in civilised, democratic societies governed by the rule of law.” It further noted: “5. The second sentence of Article 2 of the European Convention on Human Rights still provides for the death penalty. It has long been in the interest of the Assembly to delete this sentence, thus matching theory with reality. This interest is strengthened by the fact that more modern national constitutional documents and international treaties no longer include such provisions.” 59. Article X § 2 of the “Guidelines on human rights and the fight against terrorism”, issued by the Committee of Ministers of the Council of Europe on 11 July 2002, reads: “Under no circumstances may a person convicted of terrorist activities be sentenced to the death penalty; in the event of such a sentence being imposed, it may not be carried out.” E. Other international developments concerning the death penalty 60. In a number of cases involving the application of the death penalty, the United Nations Human Rights Committee has observed that if the due process guarantees in Article 14 of the International Covenant on Civil and Political Rights were violated, a sentence of death which was carried out would not be in conformity with Article 6 § 2 of the Covenant, that sets out the circumstances in which it is permissible to give effect to the death penalty. In Reid v. Jamaica (no. 250/1987), the Committee stated as follows: “[T]he imposition of a sentence of death upon the conclusion of a trial in which the provisions of the Covenant have not been respected constitutes ... a violation of Article 6 of the Covenant. As the Committee noted in its general comment 6(7), the provision that a sentence of death may be imposed only in accordance with the law and not contrary to the provisions of the Covenant implies that 'the procedural guarantees therein prescribed must be observed, including the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for the defence, and the right to review by a higher tribunal'.” Similar observations were made by the Committee in Daniel Mbenge v. Zaire (Communication no. 16/1977, 8 September 1977, UN Doc. Supp. no. 40, [A/38/40], at 134 [1983]) and Wright v. Jamaica (Communication no. 349/1989, UN Doc. CCPR/C/45/D/349/1989 [1992]). In an advisory opinion on the right to information on consular assistance in the framework of the guarantees of due process of law (Advisory Opinion OC-16/99 of 1 October 1999), the Inter-American Court of Human Rights examined the implication of the guarantees of a fair procedure for Article 4 of the American Convention on Human Rights, which permitted the death penalty in certain circumstances. It stated: “134. It might be useful to recall that in a previous examination of Article 4 of the American Convention (Restrictions to the Death Penalty, Advisory Opinion OC-3/83 of 8 September, 1983, Series A No. 3) the Court observed that the application and imposition of capital punishment are governed by the principle that '[n]o one shall be arbitrarily deprived of his life'. Both Article 6 of the International Covenant on Civil and Political Rights and Article 4 of the Convention require strict observance of legal procedure and limit application of this penalty to 'the most serious crimes'. In both instruments, therefore, there is a marked tendency toward restricting application of the death penalty and ultimately abolishing it. 135. This tendency, evident in other inter-American and universal instruments, translates into the internationally recognised principle whereby those States that still have the death penalty must, without exception, exercise the most rigorous control for observance of judicial guarantees in these cases. It is obvious that the obligation to observe the right to information becomes all the more imperative here, given the exceptionally grave and irreparable nature of the penalty that one sentenced to death could receive. If the due process of law, with all its rights and guarantees, must be respected regardless of the circumstances, then its observance becomes all the more important when that supreme entitlement that every human rights treaty and declaration recognises and protects is at stake: human life. 136. Because execution of the death penalty is irreversible, the strictest and most rigorous enforcement of judicial guarantees is required of the State so that those guarantees are not violated and a human life not arbitrarily taken as a result.” In Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago (judgment of 21 June 2002), the Inter-American Court stated: “Taking into account the exceptionally serious and irreparable nature of the death penalty, the observance of due process, with its bundle of rights and guarantees, becomes all the more important when human life is at stake.” (paragraph 148) THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 61. The applicant complained of violations of Article 5 §§ 1, 3 and 4 of the Convention, the relevant provisions of which read 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: ... (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; ... 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” The Government pleaded a failure to exhaust domestic remedies with regard to the complaints under Article 5 §§ 1, 3 and 4. The Grand Chamber considers this preliminary objection to be closely linked to the merits of the complaint under Article 5 § 4 and will therefore examine it with that complaint, which – like the Chamber – it will deal with first. A. Article 5 § 4 of the Convention 62. The applicant complained that, contrary to Article 5 § 4 of the Convention, he had not had an opportunity to take proceedings by which the lawfulness of his detention in police custody could be decided. 1. The applicant's submissions 63. The applicant asked the Grand Chamber to uphold the Chamber's finding that he had not had an effective remedy by which to have the lawfulness of his detention in police custody decided. He said that during the first ten days of his detention he had been held incommunicado and had been unable to contact his lawyers. He did not have the legal training that would have enabled him to lodge an appeal without the assistance of his lawyers. Nor had he been given access to the documents concerning his arrest that he needed to enable him to prepare such an appeal. The applicant maintained that in his case an application to a district judge or a judge of the National Security Court would have been an inadequate and illusory remedy that was bound to fail. 2. The Government's submissions 64. On this point, the Government contested the Chamber's reasons for finding that there had been a violation of Article 5 § 4. As they had done in the Chamber proceedings, they also raised a preliminary objection of failure to exhaust domestic remedies with regard to all the Article 5 complaints. Neither the applicant's lawyers nor his close relatives had lodged an application with the Mudanya Court of First Instance or a judge of the Ankara National Security Court to challenge his arrest or detention by the police, the length of such detention, or the order requiring his detention pending trial. The Government referred to Article 128 § 4 of the Code of Criminal Procedure, which entitled suspects to apply to the district judge to have the lawfulness of their detention decided or to challenge an order by the public prosecutor's office that they should remain in custody. If the district judge considered the application well-founded, he could order the police not to question the suspect further and to bring him or her before the public prosecutor forthwith. The Government added that by virtue of Article 144 of the Code of Criminal Procedure the applicant's representatives did not require a written authority to make such an application. 65. The Government provided the Grand Chamber with examples of decisions in which the courts had examined applications from persons in police custody for a decision on the lawfulness of their detention and, in the absence of an order from the public prosecutor authorising their continued detention, had made an order for the prisoners to be brought before the judge responsible for pre-trial detention at the end of the statutory period for which they could be held in police custody. Each of the applications referred to by the Government was decided on the papers, in the absence of the prisoner. 3. The Court's assessment 66. The remedy required by Article 5 § 4 must be of a judicial nature, which implies that “the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation, failing which he will not have been afforded the fundamental guarantees of procedure applied in matters of deprivation of liberty” (see Winterwerp v. the Netherlands, judgment of 24 October 1979, Series A no. 33, p. 24, § 60). Furthermore, Article 5 § 4 requires that the court invited to rule on the lawfulness of the detention should have jurisdiction to order release if the detention is unlawful (see Weeks v. the United Kingdom, judgment of 2 March 1987, Series A no. 114, p. 30, § 61). 67. In addition, in accordance with the generally recognised rules of international law, there may be special grounds for releasing the applicant from the obligation to exhaust the available domestic remedies (see Van Oosterwijck v. Belgium, judgment of 6 November 1980, Series A no. 40, pp. 18-19, §§ 36-40). 68. Having examined the examples of judicial decisions produced by the Government, the Court finds that the domestic courts' review of the lawfulness of the detention in these cases (which concerned the arrest, the police custody or the length of such custody) did not comply with the requirements of Article 5 § 4 in two respects. Firstly, in none of the decisions did the domestic courts order the prisoner's release, not even when they found that the statutory period had expired or the public prosecutor had failed to order the prisoner's continued detention. They merely referred the persons concerned to the judge responsible for pre-trial detention. Secondly, in none of the proceedings that resulted in the decisions cited by the Government did the person detained appear before the court. The judge's review was carried out solely on the papers following an application by the lawyer concerned. 69. The judicial decisions on which the Government relied in seeking to demonstrate the effectiveness of this remedy were delivered in 2001 and 2003, that is to say at least two years after the applicant's arrest and detention in the present case. 70. As regards the special circumstances in which the applicant found himself while in police custody, the Court sees no reason to disagree with the Chamber's finding that the circumstances of the case made it impossible for the applicant to have effective recourse to the remedy referred to by the Government. In its judgment, the Chamber reasoned as follows (see the judgment of 12 March 2003, §§ 72-74): “... Firstly, the conditions in which the applicant was held and notably the fact that he was kept in total isolation prevented him using the remedy personally. He possessed no legal training and had no possibility of consulting a lawyer while in police custody. Yet, as the Court has noted above ..., the proceedings referred to in Article 5 § 4 must be judicial in nature. The applicant could not reasonably be expected under such conditions to be able to challenge the lawfulness and length of his detention without the assistance of his lawyer. ... Secondly, as regards the suggestion that the lawyers instructed by the applicant or by his close relatives could have challenged his detention without consulting him, the Court observes that the movements of the sole member of the applicant's legal team to possess an authority to represent him were obstructed by the police ... The other lawyers, who had been retained by the applicant's family, found it impossible to contact him while he was in police custody. Moreover, in view of the unusual circumstances of his arrest, the applicant was the principal source of direct information on events in Nairobi that would have been relevant, at that point in the proceedings, for the purposes of challenging the lawfulness of his arrest. ... Lastly, solely with regard to the length of time the applicant was held in police custody, the Court takes into account the seriousness of the charges against him and the fact that the period spent in police custody did not exceed that permitted by the domestic legislation. It considers that, in those circumstances, an application on that issue to a district judge would have had little prospect of success.” 71. As to the Government's assertion before the Chamber that the applicant could have claimed compensation under Law no. 466, the Grand Chamber also considers that such a claim cannot constitute proceedings of the type required by Article 5 § 4 for the reasons set out in paragraph 75 of the Chamber judgment, namely the court's lack of jurisdiction to order release if the detention is unlawful or to award reparation for a breach of the Convention if the detention complies with domestic law. 72. For the aforementioned reasons, the Court dismisses the preliminary objection in respect of the complaints under Article 5 §§ 1, 3 and 4 of the Convention. It further holds for the same reasons that there has been a violation of Article 5 § 4. B. Article 5 § 1 of the Convention 73. The applicant complained that he had been deprived of his liberty unlawfully, without the applicable extradition procedure being followed. He alleged a violation of Article 5 § 1 of the Convention on that account. 1. The applicant's submissions 74. The applicant contested the Chamber's findings that his detention by Turkish officials was lawful and that his interception by Kenyan officials and transfer to the Turkish aircraft where Turkish officials were waiting for him could not be regarded as a violation of Kenyan sovereignty or international law. In that connection, he maintained that there was prima facie evidence that he had been abducted by the Turkish authorities operating abroad, beyond their jurisdiction, and that it was for the Government to prove that the arrest was not unlawful. The fact that arrest warrants had been issued by the Turkish authorities and a Red Notice circulated by Interpol did not give officials of the Turkish State jurisdiction to operate abroad. On that point, the applicant denied that he was a terrorist and affirmed that his activities were part of the Kurds' struggle to assert their rights. 75. The applicant pointed out that no proceedings had been brought to extradite him from Kenya and that the Kenyan authorities had denied all responsibility for his transfer to Turkey. Mere collusion between Kenyan officials operating without authority and the Turkish government could not constitute inter-State cooperation. The Kenyan Minister for Foreign Affairs had stated on 15 February 1999 that the Kenyan authorities had played no role in the applicant's departure and that there had been no Turkish troops in Kenyan territory. The applicant submitted that the Chamber should have attached greater importance to that ministerial announcement, which, in his submission, showed there had been no cooperation between the two governments. The applicant further suggested that the Kenyan officials involved in his arrest had been bribed by Turkish agents and had acted without the authority of the Kenyan government. 76. The applicant referred to the case-law of the Convention institutions in Cyprus v. Turkey (no. 8007/77, Commission decision of 10 July 1978, Decisions and Reports (DR) 13, p. 85) and Drozd and Janousek v. France and Spain (judgment of 26 June 1992, Series A no. 240, p. 29, § 91), and submitted that Turkey was responsible for acts performed by its officials beyond its borders. He maintained that he had been arrested as a result of an operation that had been planned in Turkey, Italy, Greece and other States. 77. Referring to Bozano v. France (judgment of 18 December 1986, Series A no. 111, p. 23, § 54), the applicant stressed the need to protect individuals' liberty and security from arbitrariness. He said that in the instant case his forced expulsion had amounted to extradition in disguise and had deprived him of all procedural and substantive protection. He pointed out in that connection that the requirement of lawfulness under Article 5 § 1 applied to both international and domestic law. Contracting States were under an obligation not just to apply their laws in a non-arbitrary manner, but also to ensure that their laws complied with public international law. The applicant added that the guarantees against wrongful deprivation of liberty to which everyone was entitled could not be extinguished by certainty as to the defendant's guilt. 78. In his submission, the Commission's decision in Sánchez Ramirez v. France (no. 28780/95, Commission decision of 24 June 1996, DR 86-B, p. 155) was not relevant to the present case. Whereas in the aforementioned case there had been cooperation between France and Sudan, the Kenyan authorities had not cooperated with the Turkish authorities in the instant case. In the former case, the Commission had taken the view that the applicant was indisputably a terrorist, whereas Mr Öcalan and the PKK had had recourse to force in order to assert the right of the population of Kurdish origin to self-determination. 79. Relying on the case-law of various national courts (the House of Lord's decision in R. v. Horseferry Road Magistrates' Court, ex parte Bennett [1994] 1 Appeal Cases 42; the decision of the Court of Appeal of New Zealand in Reg. v. Hartley [1978] 2 New Zealand Law Reports 199; the decision of the United States Court of Appeals (2nd Circuit, 1974) in United States v. Toscanino 555 Federal Reporter (Second Series) 267-68; the decision of 28 May 2001 of the Constitutional Court of South Africa in Mohamed and Dalvie v. President of the Republic of South Africa and Others 2001 (3) South African Law Reports 893 (CC)), the applicant maintained that the arrest procedures that had been followed did not comply with Kenyan law or the rules established by international law, that his arrest amounted to an abduction, and that his detention and trial, which were based on that unlawful arrest, had to be regarded as null and void. 80. The applicant also submitted that, contrary to what the Chamber had found, he could not be expected to prove “beyond reasonable doubt” that the operation by Turkish officials on Kenyan territory in the instant case had violated Kenyan sovereignty. He was merely required to adduce prima facie evidence that it had in order for the burden of proof to shift to the respondent Government to show that there had been no violation of Kenyan sovereignty. 2. The Government's submissions 81. The Government agreed with and supported the Chamber's view that in this type of case cooperation between States confronted with terrorism was normal and did not infringe the Convention. On that point, they maintained that the applicant had been arrested and detained in accordance with a procedure prescribed by law, following cooperation between two States, Turkey and Kenya. They noted that the applicant had entered Kenya not as an asylum-seeker, but by using false identity papers, and added that since Kenya was a sovereign State, Turkey had no means of exercising its authority there. They also pointed out that there was no extradition treaty between Kenya and Turkey. The applicant had been apprehended by the Kenyan authorities and handed over to the Turkish authorities by way of cooperation between the two States. On his arrival in Turkey, he had been taken into custody under arrest warrants issued by the proper and lawful judicial authorities in Turkey, in order to be brought before a judge (the Turkish courts had issued seven warrants for the applicant's arrest before his capture and Interpol had circulated a Red Notice with regard to him). There had been no extradition in disguise: Turkey had accepted the Kenyan authorities' offer to hand over the applicant, who was in any event an illegal immigrant in Kenya. 82. The applicant had thus been brought before a Turkish judicial authority at the end of a lawful procedure, in conformity with customary international law and the policy of cooperation between sovereign States in the prevention of terrorism. 3. The Court's assessment (a) General principles 83. The Court will consider the complaint in the light of the following principles. On the question whether detention is “lawful”, including whether it complies with “a procedure prescribed by law”, the Convention refers back essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof. However, it requires in addition that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect individuals from arbitrariness. What is at stake here is not only the “right to liberty” but also the “right to security of person” (see, among other authorities, Bozano, cited above, p. 23, § 54, and Wassink v. the Netherlands, judgment of 27 September 1990, Series A no. 185-A, p. 11, § 24). 84. It is in the first place for the national authorities, notably the courts, to interpret and apply domestic law. However, since under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention, it follows that the Court can and should exercise a certain power to review whether this law has been complied with (see Benham v. the United Kingdom, judgment of 10 June 1996, Reports of Judgments and Decisions 1996‑III, p. 753, § 41, and Bouamar v. Belgium, judgment of 29 February 1988, Series A no. 129, p. 21, § 49). 85. An arrest made by the authorities of one State on the territory of another State, without the consent of the latter, affects the person concerned's individual rights to security under Article 5 § 1 (see, to the same effect, Stocké v. Germany, judgment of 19 March 1991, Series A no. 199, opinion of the Commission, p. 24, § 167). 86. The Convention does not prevent cooperation between States, within the framework of extradition treaties or in matters of deportation, for the purpose of bringing fugitive offenders to justice, provided that it does not interfere with any specific rights recognised in the Convention (ibid., pp. 24-25, § 169). 87. As regards extradition arrangements between States when one is a party to the Convention and the other is not, the rules established by an extradition treaty or, in the absence of any such treaty, the cooperation between the States concerned are also relevant factors to be taken into account for determining whether the arrest that has led to the subsequent complaint to the Court was lawful. The fact that a fugitive has been handed over as a result of cooperation between States does not in itself make the arrest unlawful and does not therefore give rise to any problem under Article 5 (see Freda v. Italy, no. 8916/80, Commission decision of 7 October 1980, DR 21, p. 250; Altmann (Barbie) v. France, no. 10689/83, Commission decision of 4 July 1984, DR 37, p. 225; and Reinette v. France, no. 14009/88, Commission decision of 2 October 1989, DR 63, p. 189). 88. Inherent in the whole of the Convention is the search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. As movement about the world becomes easier and crime takes on a larger international dimension, it is increasingly in the interest of all nations that suspected offenders who flee abroad should be brought to justice. Conversely, the establishment of safe havens for fugitives would not only result in danger for the State obliged to harbour the protected person, but also tend to undermine the foundations of extradition (see Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, p. 35, § 89). 89. The Convention contains no provisions concerning the circumstances in which extradition may be granted, or the procedure to be followed before extradition may be granted. Subject to it being the result of cooperation between the States concerned and provided that the legal basis for the order for the fugitive's arrest is an arrest warrant issued by the authorities of the fugitive's State of origin, even an atypical extradition cannot as such be regarded as being contrary to the Convention (see Sánchez Ramirez, cited above). 90. Irrespective of whether the arrest amounts to a violation of the law of the State in which the fugitive has taken refuge – a question that only falls to be examined by the Court if the host State is a party to the Convention – the Court requires proof in the form of concordant inferences that the authorities of the State to which the applicant has been transferred have acted extra-territorially in a manner that is inconsistent with the sovereignty of the host State and therefore contrary to international law (see, mutatis mutandis, Stocké, cited above, p. 19, § 54). Only then will the burden of proving that the sovereignty of the host State and international law have been complied with shift to the respondent Government. However, the applicant is not required to adduce proof “beyond all reasonable doubt” on this point, as was suggested by the Chamber (see paragraph 92 of the Chamber judgment). (b) Application of the principles to the present case (i) Whether the arrest complied with Turkish law 91. The Court notes that the applicant was arrested by members of the Turkish security forces inside an aircraft registered in Turkey in the international zone of Nairobi Airport. It is common ground that, directly after being handed over to the Turkish officials by the Kenyan officials, the applicant was effectively under Turkish authority and therefore within the “jurisdiction” of that State for the purposes of Article 1 of the Convention, even though in this instance Turkey exercised its authority outside its territory. It is true that the applicant was physically forced to return to Turkey by Turkish officials and was under their authority and control following his arrest and return to Turkey (see, in this respect, the aforementioned decisions in Sánchez Ramirez and Freda, and, by converse implication, Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99, ECHR 2001-XII). 92. As to whether the arrest complied with Turkish domestic law, the Court notes that the Turkish criminal courts had issued seven warrants for the applicant's arrest while Interpol had put out a Red Notice. In each of these documents, the applicant was accused of criminal offences under the Turkish Criminal Code, namely founding an armed gang with a view to undermining the territorial integrity of the State and instigating a series of terrorist acts that had resulted in the loss of life. Following his arrest and on the expiry of the statutory period for which he could be held in police custody the applicant was brought before a court. Subsequently, he was charged, tried and convicted of offences under Article 125 of the Criminal Code. It follows that his arrest and detention complied with orders that had been issued by the Turkish courts “for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence”. (ii) Interception by Kenyan agents 93. The Court must decide in the light of the parties' arguments whether the applicant's interception in Kenya immediately before he was handed over to Turkish officials on board the aircraft at Nairobi Airport was the result of acts by Turkish officials that violated Kenyan sovereignty and international law (as the applicant submitted), or of cooperation between the Turkish and Kenyan authorities in the absence of any extradition treaty between Turkey and Kenya laying down a formal procedure (as the Government submitted). 94. The Court will begin by examining the evidence on the actual role played by the Kenyan authorities in the present case. The applicant entered Kenya without declaring his identity to the immigration officers. However, once they had been informed of the applicant's presence at the Greek embassy in Nairobi, the Kenyan authorities invited the Greek ambassador, with whom the applicant was staying in Nairobi, to arrange for the applicant to leave Kenyan territory. Shortly before the applicant was due to leave Kenya, more precisely as he was being transferred from the Greek embassy to the airport, Kenyan officials intervened and separated the applicant from the Greek ambassador. The car in which the applicant was travelling was driven by a Kenyan official, who took him to the aircraft in which Turkish officials were waiting to arrest him. 95. The Kenyan authorities did not perceive the applicant's arrest by the Turkish officials on board an aircraft at Nairobi Airport as being in any way a violation of Kenyan sovereignty. In sum, neither aspect of the applicant's detention – whether his interception by the Kenyan authorities before his transfer to the airport, or his arrest by the Turkish officials in the aircraft – led to an international dispute between Kenya and Turkey or to any deterioration in their diplomatic relations. The Kenyan authorities did not lodge any protest with the Turkish government on these points or claim any redress from Turkey, such as the applicant's return or compensation. 96. The Kenyan authorities did, however, issue a formal protest to the Greek government, accompanied by a demand for the Greek ambassador's immediate recall, on the grounds that the applicant had entered Kenya illegally with the help of Greek officials and was unlawfully staying there. The applicant was not welcome in Kenya and the Kenyan authorities were anxious for him to leave. 97. These aspects of the case lead the Court to accept the Government's version of events: it considers that at the material time the Kenyan authorities had decided either to hand the applicant over to the Turkish authorities or to facilitate such a handover. 98. The applicant has not adduced evidence enabling concordant inferences (see paragraph 90 above) to be drawn that Turkey failed to respect Kenyan sovereignty or to comply with international law in the present case. The Grand Chamber agrees with the Chamber's finding that: “... The Court is not persuaded by the statement by the Kenyan Minister for Foreign Affairs on 16 February 1999 that, contrary to what the applicant maintained, the Kenyan authorities had had no involvement in the applicant's arrest or transfer ... While it is true that the applicant was not arrested by the Kenyan authorities, the evidence before the Court indicates that Kenyan officials had played a role in separating the applicant from the Greek ambassador and in transporting him to the airport immediately preceding his arrest on board the aircraft.” (see paragraph 100 of the Chamber judgment) 99. Consequently, the applicant's arrest on 15 February 1999 and his detention were in accordance with “a procedure prescribed by law” for the purposes of Article 5 § 1 of the Convention. There has, therefore, been no violation of that provision. C. Article 5 § 3 of the Convention 100. The applicant alleged that, contrary to Article 5 § 3 of the Convention, he had not been brought “promptly” before a judge or other officer authorised by law to exercise judicial power. 1. The applicant's submissions 101. The applicant asked the Grand Chamber to uphold the Chamber's finding of a violation under this provision as there had been no need for him to be detained for seven days before being brought before a judge. He said that he had been arrested before 11 p.m. on 15 February 1999 and brought before a judge on 23 February 1999. The weather report produced by the Government which spoke of bad weather conditions concerned only the afternoon of 23 February 1999. 2. The Government's submissions 102. The Government contested the Chamber's finding of a violation in respect of this complaint. They pointed out that at the material time the Turkish rules of criminal procedure permitted police custody to be extended to seven days when the person detained was suspected of terrorist-related offences. In the instant case, the applicant had been arrested on 16 February 1999 and taken into police custody for an initial period of four days ending on 20 February 1999. On the latter date, a court order had been made extending the period to be spent in police custody by three days, that is to say until 23 February 1999. Owing to adverse weather conditions (there was a storm in the region), the representatives of the public prosecutor's office and judge of the National Security Court did not reach the island of İmralı until 22 February 1999. The public prosecutor had questioned the applicant that same day. The applicant had appeared before the judge the following day (23 February 1999) and the judge had ordered his detention pending trial after hearing his representations. 3. The Court's assessment 103. The Grand Chamber notes at the outset the importance of the guarantees afforded by Article 5 § 3 to an arrested person. The purpose of this provision is to ensure that arrested persons are physically brought before a judicial authority promptly. Such automatic expedited judicial scrutiny provides an important measure of protection against arbitrary behaviour, incommunicado detention and ill-treatment (see, among other authorities, Brannigan and McBride v. the United Kingdom, judgment of 26 May 1993, Series A no. 258-B, p. 55, §§ 62-63; Aquilina v. Malta [GC], no. 25642/94, § 49, ECHR 1999‑III; Brogan and Others v. the United Kingdom, judgment of 29 November 1988, Series A no. 145‑B, pp. 31-32, § 58; and Dikme v. Turkey, no. 20869/92, § 66, ECHR 2000-VIII). 104. Having examined the parties' arguments, the Grand Chamber sees no good reason to disagree with the Chamber's findings, which were as follows: “106. The Court has already noted on a number of occasions that the investigation of terrorist offences undoubtedly presents the authorities with special problems (see Brogan and Others v. the United Kingdom, judgment of 29 November 1988, Series A no. 145-B, p. 33, § 61; Murray v. the United Kingdom, judgment of 28 October 1994, Series A no. 300-A, p. 27, § 58; and Aksoy v. Turkey, [judgment of 18 December 1996, Reports 1996-VI], p. 2282, § 78). This does not mean, however, that the investigating authorities have carte blanche under Article 5 to arrest suspects for questioning, free from effective control by the domestic courts and, ultimately, by the Convention supervisory institutions, whenever they choose to assert that terrorism is involved (see Sakık and Others v. Turkey, [judgment of 26 November 1997, Reports 1997-VII], pp. 2623-24, § 44). 107. The Court notes that the police custody in issue commenced with the applicant's arrest either very late on 15 February 1999 or very early on 16 February 1999. The applicant was held in police custody for four days until 20 February 1999. On that date a judicial order was made extending the period by three days, that is to say until 23 February 1999. The public prosecutor questioned the applicant on 22 February 1999. The applicant appeared before a judge for the first time on 23 February 1999 and the judge, who was without any doubt an 'officer' within the meaning of Article 5 § 3 (see, among other authorities, Sakık and Others, cited above, p. 2615, § 12, and p. 2624, § 45), ordered his detention pending trial. The total period thus spent by the applicant in police custody before being brought before a judge came to a minimum of seven days. 108. The Court notes that in Brogan and Others it held that a period of four days and six hours in police custody without judicial supervision fell outside the strict constraints as to time permitted by Article 5 § 3, even when the aim was to protect the community as a whole from terrorism (see Brogan and Others, cited above, p. 33, § 62). 109. The Court cannot accept the Government's argument that adverse weather conditions were largely responsible for the period of seven days it took for the applicant to be brought before a judge. No evidence has been adduced before the Court that establishes that the judge attempted to reach the island on which the applicant was being held so that the latter could be brought before him within the total statutory period of seven days allowed for police custody. The Court observes in that connection that the police custody ran its ordinary course under the domestic rules. In addition to the four days ordered by the public prosecutor's office itself, the judge granted an additional period of three days after examining the case on the basis of the file. It seems unlikely that the judge would have granted the additional time had he intended to have the applicant brought before him before it expired. 110. The Court cannot, therefore, accept that it was necessary for the applicant to be detained for seven days without being brought before a judge.” 105. In the light of all the foregoing considerations, the Court holds that there has been a violation of Article 5 § 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION A. Whether the Ankara National Security Court, which convicted the applicant, was independent and impartial 106. The applicant alleged that he had not been tried by an independent and impartial tribunal, since a military judge had sat on the bench during part of the proceedings in the National Security Court. He relied on Article 6 § 1 of the Convention, the relevant part of which provides: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing ... by an independent and impartial tribunal ...” 1. The applicant's submissions 107. The applicant asked the Grand Chamber to uphold the Chamber's finding of a violation on this issue. He said that a judge holding the rank of colonel in the army had sat on the bench of the National Security Court during most of the proceedings. The military judge had been replaced by a civilian judge just one week before the applicant's conviction and two months after the hearings before the National Security Court had started. In the meantime, in a case that concerned a conflict between the organisation led by the applicant and the army in which the military judge was an officer, the military judge had taken part in important interlocutory rulings and discussed the case with the other judges, thereby potentially influencing the conduct and outcome of the proceedings. 2. The Government's submissions 108. The Government contested the Chamber's finding that the last-minute replacement of the military judge was incapable of curing the defect in the composition of the court or of remedying the resulting violation of Article 6. They pointed out that the military judge had left the National Security Court following legislative amendments. All the members of the court that had convicted the applicant were civilian judges. As regards the period prior to the military judge's replacement, the Government noted that a civilian substitute judge had been following the proceedings from the start and had attended the hearings. In addition, the military judge had been replaced by the substitute judge before the stage in the proceedings in which evidence was gathered had ended. Had the substitute judge considered that the National Security Court needed to make further investigations, he could have voted against making an order to close that stage of the proceedings. 109. The Government invited the Grand Chamber to follow the Court's decision in İmrek v. Turkey ((dec.), no. 57175/00, 28 January 2003), in which it held that the replacement of a military judge by a civilian judge in the course of criminal proceedings had solved the problem regarding the independence and impartiality of the national security court concerned. 110. They objected in particular to the Chamber's use of the “last minute” criterion in its judgment in the present case. That criterion would have been valid had the new judge not been given sufficient time to examine the interlocutory decisions taken up to that point or been precluded from issuing new ones. However, in the Government's submission, the replacement judge had been given both the time and the means necessary to play an active role in the decision-making process. 111. The Government further maintained that the applicant himself had had no doubts about the independence and impartiality of the National Security Court. He had in fact expressed his confidence in that court at a hearing at which the military judge had been present. It mattered little that the applicant's lawyers had subsequently contradicted Mr Öcalan's remark in their submissions. The most important point was that that remark – which had been made of the applicant's own free will and expressed his confidence in the court – had been sincere. 3. The Court's assessment 112. The Court has consistently held that certain aspects of the status of military judges sitting as members of the national security courts made their independence from the executive questionable (see Incal v. Turkey, judgment of 9 June 1998, Reports 1998-IV, p. 1572, § 68, and Çıraklar v. Turkey, judgment of 28 October 1998, Reports 1998-VII, p. 3073, § 39). 113. It is understandable that the applicant – prosecuted in a national security court for serious offences relating to national security – should have been apprehensive about being tried by a bench that included a regular army officer belonging to the military legal service. On that account he could legitimately fear that the National Security Court might allow itself to be unduly influenced by considerations that had nothing to do with the nature of the case (see, among other authorities, Iprahim Ülger v. Turkey, no. 57250/00, 29 July 2004). 114. As to whether the military judge's replacement by a civilian judge in the course of the proceedings before the verdict was delivered remedied the situation, the Court considers, firstly, that the question whether a court is seen to be independent does not depend solely on its composition when it delivers its verdict. In order to comply with the requirements of Article 6 regarding independence, the court concerned must be seen to be independent of the executive and the legislature at each of the three stages of the proceedings, namely the investigation, the trial and the verdict (those being the three stages in Turkish criminal proceedings according to the Government). 115. Secondly, when a military judge has participated in one or more interlocutory decisions that continue to remain in effect in the criminal proceedings concerned, the accused has reasonable cause for concern about the validity of the entire proceedings, unless it is established that the procedure subsequently followed in the national security court sufficiently dispelled that concern. More specifically, where a military judge has participated in an interlocutory decision that forms an integral part of proceedings against a civilian, the whole proceedings are deprived of the appearance of having been conducted by an independent and impartial court. 116. In its previous judgments, the Court attached importance to the fact that a civilian had to appear before a court composed, even if only in part, of members of the armed forces (see, among other authorities, Incal, cited above, p. 1573, § 72). Such a situation seriously affects the confidence the courts must inspire in a democratic society (see, mutatis mutandis, Piersack v. Belgium, judgment of 1 October 1982, Series A no. 53, pp. 14-15, § 30). 117. In the instant case, the Court notes that before his replacement on 23 June 1999 the military judge was present at two preliminary hearings and six hearings on the merits, when interlocutory decisions were taken. It further notes that none of the decisions were renewed after the replacement of the military judge and that all were validated by the replacement judge. 118. In these circumstances, the Court cannot accept that the replacement of the military judge before the end of the proceedings dispelled the applicant's reasonably held concern about the trial court's independence and impartiality. In so far as the decision or reasoning in İmrek, cited above, may be regarded as inconsistent with this conclusion, the Grand Chamber will not follow the decision and the reasoning in that case. Consequently, there has been a violation of Article 6 § 1 of the Convention on this point. B. Whether the proceedings in the National Security Court were fair 119. The applicant complained that the provisions of Article 6 §§ 1, 2 and 3 of the Convention had been infringed owing to the restrictions and difficulties he had encountered in securing assistance from his lawyers, gaining access – for both himself and his lawyers – to the case file, calling defence witnesses and securing access for his lawyers to all the information held by the prosecution. He also alleged that the media had influenced the judges to his detriment. 120. The relevant part of Article 6 of the Convention reads as follows: “1. ... everyone is entitled to a fair ... hearing within a reasonable time ... 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 3. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (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; ...” 1. The applicant's submissions 121. The applicant asked the Grand Chamber to uphold the Chamber's finding that he had not had a fair trial. He set out the principal reasons why he considered that his trial failed to satisfy the requirements of Article 6. He observed that unfettered, confidential and prompt access to legal assistance of one's choosing at all stages of the proceedings from the instant a person is detained was one of the fundamental requirements of a fair hearing in a democratic society. In the present case, however, he had had difficulty contacting his lawyers and that had affected his defence rights. In that connection, he explained that his lawyers had not been allowed to visit him until ten days after his arrest, by which time he had already made statements to the judicial authorities. He had also encountered difficulties in appointing lawyers of his choice, and that process had taken some time. His first meeting with his lawyers had taken place in the presence of members of the security forces. The other visits by his lawyers had been overseen and listened in to by the authorities and filmed with a video camera. Ultimately, the applicant considered that he had not been able to confer in private with his lawyers, in breach of the mandatory provisions of the Code of Criminal Procedure. After two short initial visits, contact with his lawyers had been limited to two weekly visits of an hour each. In proceedings that had been conducted extremely quickly and had produced an enormous case file, the total duration of the visits had been manifestly insufficient for him to prepare his defence. In any event, the applicant's lawyers had not enjoyed the same facilities as the members of the prosecution for travelling to the place of detention and the trial centre. 122. The applicant stressed that for the purposes of preparing the defence it had been vital for him and his lawyers to be given full, effective access to all the documents in the case file, including documents whose relevance to the issues of guilt and sentencing was only potential. However, his lawyers had not been permitted to provide him with a copy of the trial papers or any other material that would assist him in the preparation of his defence. He had been obliged to write out his defence by hand, without having access to any of the documents in the case file other than the bill of indictment, with which he had already been provided. 123. Furthermore, because of the speed with which the proceedings had been conducted, his lawyers had had difficulty in consulting all the documents in the file. They were given access to the case file, which ran to 17,000 pages, just sixteen days before the hearings started. The defence's ability to analyse the documents had been further hampered by, inter alia, the restrictions imposed throughout the investigation on communications between the applicant and his lawyers. The National Security Court had nonetheless dismissed an application by the applicant's lawyers for additional evidence to be taken. The applicant added that, while before the National Security Court he had accepted political responsibility for the PKK's general policy, he had denied criminal liability for acts of violence that went beyond the PKK's stated policy. It had been with a view to highlighting the rapprochement between the PKK and the government that the applicant had made a request for the members of the government team that had led the negotiations with the PKK to be heard as defence witnesses. 124. In conclusion, the applicant said that he had not enjoyed equality of arms with the prosecution in preparing his defence, in particular as a result of the difficulties that had prevented him and his lawyers from having sufficient time to confer in private, obtaining effective access to the case file and putting forward his defence in a secure environment. 2. The Government's submissions 125. The Government disagreed with the Chamber's findings regarding the fairness of the applicant's trial; in their submission, it had been fair. In that connection, they observed firstly that the applicant had been convicted under Article 125 of the Criminal Code, the aim of which was to protect the democratic values of the Republic. The Criminal Divisions of the Turkish Court of Cassation, sitting in plenary session, had held that the PKK was an organisation that resorted to force and acts of violence with a view to bringing about the secession of part of Turkish territory to form a Kurdish State with a political regime based on Marxist-Leninist ideology. The acts of violence perpetrated by the PKK and acknowledged by the applicant at his trial had involved some 6,036 armed attacks on civilians, 8,257 armed confrontations with the security forces, 3,071 bomb attacks, 388 armed robberies and 1,046 kidnappings. Those acts came within the list of terrorist acts set out in Articles 1 and 2 of the European Convention on the Suppression of Terrorism. The Government noted that the applicant had admitted before the courts that he had played a role in the creation and organisation of the PKK and in the planning and perpetration of acts of violence committed by members of that organisation. 126. As regards the rights of the defence, the Government noted that the applicant had had a public hearing, had been able to participate fully in the hearings with the help of the special measures taken to ensure his safety, had addressed the court without being interrupted, and had said everything he wished to say in his defence. They said that the applicant had been provided with every facility for the preparation of his defence: he had been able to consult the lawyers of his choice during both the preliminary investigation and the trial and, with the exception of the first visit, the only restrictions to which his lawyers' visits had been subject were those set out in the Code of Criminal Procedure. Furthermore, the applicant's lawyers had made no request to see their client at more frequent intervals. There had been no restrictions on the applicant's correspondence and he had been able to lodge with the National Security Court eighty pages of defence submissions he had drafted himself. 127. As regards the applicant's access to the case file, the Government maintained that even before the hearings on the island of İmralı the applicant's lawyers had been given an opportunity to photocopy all the documents in the case file. The 17,000-page case file had, in fact, been compiled from the case files in seven sets of criminal proceedings that had already been instituted in various national security courts several years before the applicant's arrest, and the applicant was already familiar with the papers. In any event, very few new documents had been added to the case file. The Government asserted that the National Security Court had communicated all the relevant documents to the applicant and allowed him to study the case file and any annexes he wished to see under the supervision of two officials. It had also informed the applicant that it would provide him with a copy of any document he thought might assist him with his defence. The applicant had in fact had sufficient time (twenty days) in which to acquaint himself with the relevant material in the case file. 128. On this point, the Government also argued that, contrary to what the Chamber had found, the Court's case-law in Kremzow v. Austria (judgment of 21 September 1993, Series A no. 268-B, p. 42, § 52) and Kamasinski v. Austria (judgment of 19 December 1989, Series A no. 168, pp. 39-40, § 88) was applicable in the instant case. There was no requirement under that case-law for the accused to be given direct access to the case file. It was sufficient for him to be apprised of its content by his representatives. Requiring such access to be afforded in the prosecution of organised crime would discriminate against those accused of ordinary offences. Furthermore, the applicant had acknowledged his responsibility for the acts of the PKK, the organisation he had led before his arrest. Even if he had examined the acts of the other PKK members in greater detail, he would not have found any evidence to assist him in his defence. 129. Among the other facilities that had been made available to assist the applicant with his defence, a photocopier had been installed in the hearing room for the use of the lawyers, on the instructions of the President of the National Security Court. Furthermore, the lawyers had been taken to the island of İmralı by boat, embarking at a private quay for security reasons. Hotel rooms had been reserved for them near the embarkation point. If the lawyers were not present at a hearing, transcripts of the hearing and copies of any fresh documentary evidence had been delivered to them the next day. Counsel for the applicant had thanked the President of the National Security Court for establishing a dispassionate atmosphere. 3. The Court's assessment 130. The Court considers that in order to determine whether the rights of the defence were respected in the criminal proceedings against the applicant, it is necessary to examine the legal assistance available to him and the access he and his lawyers were given to the case file. (a) Legal assistance (i) The applicant's lack of access to a lawyer while in police custody 131. The Grand Chamber sees no reason to disagree with the Chamber's finding that the applicant's lack of access to a lawyer while in police custody adversely affected his defence rights. The Grand Chamber agrees with the reasoning of the Chamber, which was as follows: “... The Court reiterates that Article 6 may also be relevant before a case is sent for trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with it (see Imbrioscia v. Switzerland, judgment of 24 November 1993, Series A no. 275, p. 13, § 36). The manner in which Article 6 §§ 1 and 3 (c) are applied during the investigation depends on the special features of the proceedings and the facts of the case. Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer from the initial stages of police interrogation. However, this right, which is not explicitly set out in the Convention, may be subject to restrictions for good cause. The question, in each case, is whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing (see John Murray v. the United Kingdom, judgment of 8 February 1996, Reports 1996-I, pp. 54-55, § 63). ... In the present case, the applicant was questioned by the security forces, a public prosecutor and a judge of the National Security Court while being held in police custody in Turkey for almost seven days, from 16 February 1999 to 23 February 1999. He received no legal assistance during that period and made several self-incriminating statements that were subsequently to become crucial elements of the indictment and the public prosecutor's submissions and a major contributing factor in his conviction. ... As to whether the applicant had waived his right to consult a lawyer, the Court notes that on the day after his arrest, his lawyer in Turkey, Mr Feridun Çelik (who already possessed a valid authority), sought permission to visit him. However, Mr Çelik was prevented from travelling by members of the security forces. In addition, on 22 February 1999 sixteen lawyers who had been retained by the applicant's family sought permission from the National Security Court to visit the applicant, but their request was turned down by the authorities on 23 February 1999. ... In these circumstances, the Court is of the view that to deny access to a lawyer for such a long period and in a situation where the rights of the defence might well be irretrievably prejudiced is detrimental to the rights of the defence to which the accused is entitled by virtue of Article 6 (see, mutatis mutandis, Magee [v. the United Kingdom, no. 28135/95], §§ 44-45[, ECHR 2000-VI]).” (ii) Consultation with his lawyers out of the hearing of third parties 132. In the absence of any specific observations by the parties on this point in the proceedings before it, the Grand Chamber endorses the Chamber's findings: “... the applicant's first visit from his lawyers took place under the supervision and within sight and hearing of members of the security forces and a judge, all of whom were present in the same room as the applicant and his lawyers. The security forces restricted the visit to twenty minutes. The record of the visit was sent to the National Security Court. ... As regards subsequent visits, ... the Court accepts that meetings between the applicant and his lawyers after the initial visit took place within hearing of members of the security forces, even though the security officers concerned were not in the room where the meetings took place.” 133. The Grand Chamber agrees with the Chamber's assessment of the effects of the applicant's inability to consult his lawyers out of the hearing of third parties: “... an accused's right to communicate with his legal representative out of the hearing of a third person is part of the basic requirements of a fair trial in a democratic society and follows from Article 6 § 3 (c) of the Convention. If a lawyer were unable to confer with his client and receive confidential instructions from him without such surveillance, his assistance would lose much of its usefulness, whereas the Convention is intended to guarantee rights that are practical and effective (see S. v. Switzerland, judgment of 28 November 1991, Series A no. 220, pp. 15-16, § 48). The importance to the rights of the defence of ensuring confidentiality in meetings between the accused and his lawyers has been affirmed in various international instruments, including European instruments (see Brennan v. the United Kingdom, no. 39846/98, §§ 38-40, ECHR 2001-X). However, as stated above ... restrictions may be imposed on an accused's access to his lawyer if good cause exists. The relevant issue is whether, in the light of the proceedings taken as a whole, the restriction has deprived the accused of a fair hearing. ... In the present case, the Court accepts ... that the applicant and his lawyers were unable to consult out of the hearing of the authorities at any stage. It considers that the inevitable consequence of that restriction, which was imposed during both the preliminary investigation and the trial, was to prevent the applicant from conversing openly with his lawyers and asking them questions that might prove important to the preparation of his defence. The rights of the defence were thus significantly affected. ... The Court observes in that connection that the applicant had already made statements by the time he conferred with his lawyers and made further statements at hearings before the National Security Court after consulting them. If his defence to the serious charges he was required to answer was to be effective, it was essential that those statements be consistent. Accordingly, the Court considers that it was necessary for the applicant to be able to speak with his lawyers out of the hearing of third parties. ... As to the Government's contention that the supervision of the meetings between the applicant and his lawyers was necessary to ensure the applicant's security, the Court observes that the lawyers had been retained by the applicant himself and that there was no reason to suspect that they threatened their client's life. They were not permitted to see the applicant until they had undergone a series of searches. Mere visual surveillance by the prison officials, accompanied by other measures, would have sufficed to ensure the applicant's security.” Consequently, the Court holds that the fact that it was impossible for the applicant to confer with his lawyers out of the hearing of members of the security forces infringed the rights of the defence. (iii) Number and length of the visits by the applicant's lawyers 134. After the first two visits by his lawyers, which were approximately two weeks apart, contact between the applicant and his lawyers was restricted to two one-hour visits per week. 135. Having examined the parties' arguments, the Grand Chamber sees no good reason to disagree with the following findings of the Chamber: “... while Article 6 § 3 (c) confers on everyone charged with a criminal offence the right to 'defend himself in person or through legal assistance ...', it does not specify the manner of exercising this right. It thus leaves to the Contracting States the choice of the means of ensuring that it is secured in their judicial systems, the Court's task being only to ascertain whether the method they have chosen is consistent with the requirements of a fair trial (see Quaranta v. Switzerland, judgment of 24 May 1991, Series A no. 205, p. 16, § 30). In this respect, it must be remembered that the Convention is designed to 'guarantee not rights that are theoretical or illusory but rights that are practical and effective' and that assigning a counsel does not in itself ensure the effectiveness of the assistance he may afford an accused (see Artico v. Italy, judgment of 13 May 1980, Series A no. 37, pp. 15-16, § 33). The Court also points out that the manner in which Article 6 §§ 1 and 3 (c) are to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case; in order to determine whether the aim of Article 6 – a fair trial – has been achieved, regard must be had to the entirety of the domestic proceedings conducted in the case (see Imbrioscia, cited above, pp. 13-14, § 38). ... The Court observes that, in the instant case, the charges against the applicant included numerous acts of violence perpetrated by an illegal armed organisation and that he was alleged to be the leader of that organisation and the principal instigator of its acts. The Court further notes that the presentation of those highly complex charges generated an exceptionally voluminous case file ... It considers that in order to prepare his defence to those charges the applicant required skilled legal assistance equal to the complex nature of the case. It finds that the special circumstances of the case did not justify restricting the applicant to a rhythm of two one-hour meetings per week with his lawyers in order to prepare for a trial of that magnitude. ... With respect to the Government's argument that visits took place in accordance with the frequency and departure times of the ferries between the island of İmralı and the coast, the Court considers that, while the Government's decision to hold the applicant in an island prison far from the coast is understandable in view of the exceptional security considerations in the case, restricting visits to two one-hour visits a week is less easily justified. It notes that the Government have not explained why the authorities did not permit the lawyers to visit their client more often or why they failed to provide more adequate means of transport, thereby increasing the length of each individual visit, when such measures were called for as part of the 'diligence' the Contracting States must exercise in order to ensure that the rights guaranteed by Article 6 are enjoyed in an effective manner (see Colozza [v. Italy, judgment of 12 February 1985, Series A no. 89], pp. 14-15, § 28). ... As to the Government's argument that the applicant's lawyers organised press conferences after each visit and acted as spokespersons for the PKK, the Court holds that any such conduct on their part could not justify the restrictions in issue, since restrictions cannot be placed on the rights of the defence for reasons that are not directly related to the trial. In addition, there is no evidence before the Court that any complaint was lodged in Turkey against the applicant's lawyers for acting as spokespersons for the PKK.” 136. The Government's argument before the Grand Chamber that the applicant's lawyers had not asked to see him at more frequent intervals must also be rejected. The Court reiterates that waiver of the exercise of a right guaranteed by the Convention must be established in an unequivocal manner (see, mutatis mutandis, Pfeifer and Plankl v. Austria, judgment of 25 February 1992, Series A no. 227, pp. 16-17, § 37). It notes that there was in fact a complaint by the applicant's lawyers to the National Security Court about the difficulties they had encountered in communicating with their client. 137. Consequently, the Court considers that the restriction on the number and length of the applicant's meetings with his lawyers was one of the factors that made the preparation of his defence difficult. (b) The applicant's access to the case file 138. The Court must next examine whether the fact that the applicant was prevented from obtaining communication of the documents in the case file (apart from the bill of indictment) until 4 June 1999 violated the rights of the defence, as guaranteed by Article 6 § 1, taken together with the rights guaranteed by Article 6 § 3, as it was not until the hearing on that date that the National Security Court gave the applicant permission to consult the case file under the supervision of two registrars and gave his lawyers permission to provide him with copies of certain documents. 139. The Court will first examine the submission made by the Government before the Grand Chamber that the decisions in Kremzow and Kamasinski, both cited above, are applicable in the instant case. These authorities establish that an accused does not have to be given direct access to the case file, it being sufficient for him to be informed of the material in the file by his representatives. The Court also notes that, relying on those same authorities, the Government have already argued before the Chamber that restricting the right to inspect the court file to an accused's lawyer is not incompatible with the rights of the defence. 140. When examining these issues, the Court will have regard to its case-law to the effect that under the principle of equality of arms, as one of the features of the wider concept of a fair trial, each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a disadvantage vis-à-vis his opponent. In this context, importance is attached to appearances as well as to the increased sensitivity to the fair administration of justice (see, among other authorities, Bulut v. Austria, judgment of 22 February 1996, Reports 1996-II, p. 359, § 47). The Court further considers that respect for the rights of the defence requires that limitations on access by an accused or his lawyer to the court file must not prevent the evidence being made available to the accused before the trial and the accused being given an opportunity to comment on it through his lawyer in oral submissions (see, mutatis mutandis, Kremzow, cited above, p. 44, § 63). 141. As regards the relevant facts in the present case, the Grand Chamber agrees with the following findings of the Chamber: “... in the instant case, the applicant was not permitted to inspect the evidence produced by the prosecution personally before the hearings. When the applicant's lawyers made their comments on that evidence, they had yet to obtain the applicant's observations following a direct inspection of the documentation. The fact that the applicant was given permission on 2 June 1999 to consult the case file under the supervision of two registrars did little to remedy that situation, in view of the considerable volume of documents concerned and the short time available to the applicant.” 142. The Grand Chamber therefore considers that the present case is distinguishable from Kremzow, in which the applicant had twenty-one days in which to examine forty-nine pages, in contrast to Mr Öcalan, who had twenty days in which to examine a case file containing some 17,000 pages. The present case is also distinguishable from Kamasinski, in which the applicant's lawyer was able to pass on to his client copies of all the documents he considered relevant. Mr Öcalan's lawyers were not able to provide him with any documents before submitting their comments on the prosecution evidence. 143. The Government's argument that a more detailed examination by the applicant of the material relating to the acts of the other members of the PKK would not have permitted him to find evidence to assist him in his defence as he had already acknowledged responsibility for the acts of the PKK also warrants examination by the Court. It should be noted that while the applicant admitted before the National Security Court that he was the leader of the PKK, an armed separatist organisation, and responsible for the general policy of that organisation, he did not specifically comment on each act of violence committed by PKK members. He did say in his defence, however, that certain acts of violence had been committed against his will or beyond his control. It is thus reasonable to assume that, had he been permitted to study the prosecution evidence directly for a sufficient period, the applicant would have been able to identify arguments relevant to his defence other than those his lawyers advanced without the benefit of his instructions. 144. The Court therefore holds that the fact that the applicant was not given proper access to any documents in the case file other than the bill of indictment also served to compound the difficulties encountered in the preparation of his defence. (c) Access by the applicant's lawyers to the court file 145. Together with the issue of the applicant's access to his case file, the Court must also determine whether, in the instant case, the lawyers' access to the documents in the case file was restricted, either formally or in practice, and, if so, whether the restrictions affected the fairness of the proceedings. 146. The principle of equality of arms is only one feature of the wider concept of a fair trial, which also includes the fundamental right that criminal proceedings should be adversarial. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. Various ways are conceivable in which national law may meet this requirement. However, whatever method is chosen, it should ensure that the other party will be aware that observations have been filed and will get a real opportunity to comment on them (see Brandstetter v. Austria, judgment of 28 August 1991, Series A no. 211, pp. 27-28, §§ 66-67). 147. In the present case, the bill of indictment was served on the applicant and his lawyers on 24 April 1999. The court file was placed at the disposal of the applicant's lawyers on 7 May 1999, but they were not provided with a copy. The applicant's lawyers finished photocopying the documents on 15 May 1999. They were in possession of the full file in the case from that date onwards. Two weeks later, on 31 May 1999, the hearings before the National Security Court began. The applicant's lawyers were invited to make their final submissions – in reply to the prosecution's submissions – at the eighth substantive hearing, which was held on 23 June 1999. In these circumstances, the Grand Chamber agrees with the Chamber's findings regarding the difficulties the applicant's lawyers encountered in gaining access to the court file, which were exacerbated by the same kinds of problem the applicant had experienced: “... the applicant's lawyers received a 17,000-page file approximately two weeks before the beginning of the trial in the National Security Court. Since the restrictions imposed on the number and length of their visits made it impossible for the applicant's lawyers to communicate the documents in the file to their client before 2 June 1999 or to involve him in its examination and analysis, they found themselves in a situation that made the preparation of the defence case particularly difficult. Subsequent developments in the proceedings did not permit them to overcome those difficulties: the trial proceeded apace; the hearings continued without interruption until 8 June 1999; and on 23 June 1999 the applicant's lawyers were invited to present their submissions on all the evidence in the file, including that taken at the hearings.” (d) The Court's conclusion regarding the fairness of the trial 148. Accordingly, the applicant's trial was unfair for the following reasons: he had no assistance from his lawyers during questioning in police custody; he was unable to communicate with his lawyers out of the hearing of third parties; he was unable to gain direct access to the case file until a very late stage in the proceedings; restrictions were imposed on the number and length of his lawyers' visits; and, lastly, his lawyers were given proper access to the case file belatedly. The Court finds that the overall effect of these difficulties taken as a whole so restricted the rights of the defence that the principle of a fair trial, as set out in Article 6, was contravened. There has therefore been a violation of Article 6 § 1 of the Convention, taken in conjunction with Article 6 § 3 (b) and (c). 149. As regards the other complaints under Article 6 of the Convention, the Court considers that it has already dealt with the applicant's main grievances arising out of the proceedings against him in the domestic courts. It therefore holds that it is unnecessary to examine the other complaints under Article 6 relating to the fairness of the proceedings. III. DEATH PENALTY: ALLEGED VIOLATION OF ARTICLES 2, 3 AND 14 OF THE CONVENTION 150. The applicant maintained that the imposition and/or execution of the death penalty constituted a violation of Article 2 of the Convention – which should be interpreted as no longer permitting capital punishment – as well as an inhuman and degrading punishment in violation of Article 3. He also claimed that his execution would be discriminatory and, therefore, in breach of Article 14. The relevant parts of these provisions provide: Article 2 “1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. ...” Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 14 “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.” A. Implementation of the death penalty 151. In his initial application, the applicant complained that any recourse to the death penalty would violate both Articles 2 and 3 of the Convention. 152. In its judgment, the Chamber said that it considered that the threat of implementation of the death sentence had been effectively removed (see paragraphs 184-85 of the Chamber judgment). 153. The parties did not comment on this issue in the subsequent proceedings. 154. In this connection, the Court notes that the death penalty has been abolished in Turkey and the applicant's sentence has been commuted to life imprisonment. Furthermore, on 12 November 2003 Turkey ratified Protocol No. 6 to the Convention concerning the abolition of the death penalty. 155. In these circumstances, the complaints the applicant made in his initial application of violations of Articles 2, 3 and 14 on account of the implementation of the death penalty must be dismissed. Accordingly, there has been no violation of those provisions on that account. B. Imposition of the death penalty 156. The Grand Chamber agrees with the Chamber that no separate issue arises under Article 2 with respect to the imposition of the death penalty. It will therefore examine this point under Article 3. 1. The parties' submissions (a) The applicant 157. The applicant asked the Grand Chamber to pursue the reasoning of the Chamber as regards the abolitionist trend established by the practice of the Contracting States and to take it a stage further by concluding that the States had, by their practice, abrogated the exception set out in the second sentence of Article 2 § 1 of the Convention and that the death penalty constituted inhuman and degrading treatment within the meaning of Article 3. In that connection, he repeated the observations he had submitted to the Chamber (see paragraphs 175-79 of the Chamber judgment). When the Convention was signed in 1950, the death penalty was not perceived as a degrading and inhuman punishment in Europe and was provided for in the legislation of a number of States. Since that time there had been de facto abolition throughout Europe. Such developments should be seen as an agreement by Contracting States to amend Article 2 § 1. 158. No construction of Article 2 should permit a State to inflict inhuman and degrading treatment since the death penalty per se constituted such treatment in breach of Article 3 of the Convention. In that latter respect, the following submissions were made. 159. Developments in international and comparative law showed that the death penalty could also be seen to be contrary to international law. In that respect, reference was made, inter alia, to a judgment of the South African Constitutional Court in which it was held that the death penalty was contrary to the South African Constitution's prohibition of cruel, inhuman or degrading treatment (see S. v. Makwanyane (1995) (6) Butterworths Constitutional Law Reports 665), and to the judgment of the Canadian Supreme Court in United States v. Burns [2001] Supreme Court Reports 283, where that court, in a case concerning the extradition of a fugitive to the United States of America, considered capital punishment to amount to cruel and unusual punishment. The United Nations Human Rights Committee had also held that execution of a death sentence constituted cruel and inhuman treatment contrary to Article 6 of the International Covenant on Civil and Political Rights (see paragraph 60 above). Reference was also made to similar statements by the Hungarian Constitutional Court and the Constitutional Courts of Ukraine, Albania, Lithuania and Republika Srpska (within Bosnia and Herzegovina). 160. Finally, the applicant maintained that the imposition of the death penalty by a court that failed to satisfy the requisite standards of the Convention and permitted violations of the applicant's rights under Article 6 also violated Articles 2 and 3. (b) The Government 161. The Government disagreed with the Chamber's finding that the imposition of the death penalty following an unfair trial constituted a violation of Article 3. They observed, firstly, that neither the applicant nor his lawyers had presented any argument on this point. Secondly, even assuming that the Court had decided of its own motion to examine the case under Article 3, it would be difficult if not impossible to do so in view of the nature of Article 3. Inhuman treatment within the meaning of Article 3 was based on a subjective concept, that is to say fear and anguish felt by the applicant that reached the level proscribed by Article 3. In the absence of such a complaint, it was not possible for the Court to put itself in the applicant's position. In the Government's submission, the conclusion reached by the Chamber was contrary to an earlier admissibility decision of the Commission in Çınar v. Turkey (no. 17864/91, Commission decision of 5 September 1994, DR 79-A, p. 5) and to Sertkaya v. Turkey ((dec.), no. 77113/01, 11 December 2003). In those decisions, the Convention institutions found that the applicants had not felt fear or anguish as the moratorium on the implementation of the death penalty had eliminated any risk of their being executed. The applicant's situation was identical to that of Mr Çınar and Mr Sertkaya, and the guarantees that the death penalty would not be carried out were, if anything, firmer in his case: as the applicant's case file had never been sent to Parliament, the procedure allowing the death penalty to be implemented was never set in motion. In addition, the Turkish government's moratorium on the implementation of the death penalty was unconditional and no offences or individuals were excluded from its scope. The Government had complied with the interim measure ordered by the Court under Rule 39 requiring them to stay the applicant's execution. There was a broad consensus in Parliament in Turkey that the applicant should not be executed, the composition of Parliament at the material time being the same as when it abolished the death penalty. The Government submitted that there was no evidential basis for the Chamber's finding, nor could it be justified by the Court's request for a stay of execution of the death penalty. Lastly, the Turkish government's decision to comply with the European norms on capital punishment had eliminated all risk that the applicant would be executed. 2. The Court's assessment (a) Legal significance of the practice of the Contracting States as regards the death penalty 162. The Court must first address the applicant's submission that the practice of the Contracting States in this area can be taken as establishing an agreement to abrogate the exception provided for in the second sentence of Article 2 § 1, which explicitly permits capital punishment under certain conditions. In practice, if Article 2 is to be read as permitting capital punishment, notwithstanding the almost universal abolition of the death penalty in Europe, Article 3 cannot be interpreted as prohibiting the death penalty since that would nullify the clear wording of Article 2 § 1 (see Soering, cited above, pp. 40-41, § 103). 163. The Grand Chamber agrees with the following conclusions of the Chamber on this point (see paragraphs 190-96 of the Chamber judgment): “... The Court reiterates that it must be mindful of the Convention's special character as a human rights treaty and that the Convention cannot be interpreted in a vacuum. It should so far as possible be interpreted in harmony with other rules of public international law of which it forms part (see, mutatis mutandis, Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001-XI, and Loizidou v. Turkey, judgment of 18 December 1996, Reports 1996-VI, p. 2231, § 43). It must, however, confine its primary attention to the issues of interpretation and application of the provisions of the Convention that arise in the present case. ... It is recalled that the Court accepted in Soering that an established practice within the member States could give rise to an amendment of the Convention. In that case the Court accepted that subsequent practice in national penal policy, in the form of a generalised abolition of capital punishment, could be taken as establishing the agreement of the Contracting States to abrogate the exception provided for under Article 2 § 1 and hence remove a textual limit on the scope for evolutive interpretation of Article 3 (ibid., pp. 40-41, § 103). It was found, however, that Protocol No. 6 showed that the intention of the States was to adopt the normal method of amendment of the text in order to introduce a new obligation to abolish capital punishment in time of peace and to do so by an optional instrument allowing each State to choose the moment when to undertake such an engagement. The Court accordingly concluded that Article 3 could not be interpreted as generally prohibiting the death penalty (ibid., pp. 40-41, §§ 103-04). ... The applicant takes issue with the Court's approach in Soering. His principal submission was that the reasoning is flawed since Protocol No. 6 represents merely one yardstick by which the practice of the States may be measured and that the evidence shows that all member States of the Council of Europe have, either de facto or de jure, effected total abolition of the death penalty for all crimes and in all circumstances. He contended that as a matter of legal theory there was no reason why the States should not be capable of abolishing the death penalty both by abrogating the right to rely on the second sentence of Article 2 § 1 through their practice and by formal recognition of that process in the ratification of Protocol No. 6. ... The Court reiterates that the Convention is a living instrument which must be interpreted in the light of present-day conditions and that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies (see Selmouni v. France [GC], no. 25803/94, § 101, ECHR 1999-V). ... It reiterates that in assessing whether a given treatment or punishment is to be regarded as inhuman or degrading for the purposes of Article 3 it cannot but be influenced by the developments and commonly accepted standards in the penal policy of the member States of the Council of Europe in this field (see Soering, cited above, p. 40, § 102). Moreover, the concepts of inhuman and degrading treatment and punishment have evolved considerably since the Convention came into force in 1953 and indeed since the Court's judgment in Soering in 1989. ... Equally the Court observes that the legal position as regards the death penalty has undergone a considerable evolution since Soering was decided. The de facto abolition noted in that case in respect of twenty-two Contracting States in 1989 has developed into a de jure abolition in forty-three of the forty-four Contracting States and a moratorium in the remaining State that has not yet abolished the penalty, namely Russia. This almost complete abandonment of the death penalty in times of peace in Europe is reflected in the fact that all the Contracting States have signed Protocol No. 6 and forty-one States have ratified it, that is to say, all except Turkey, Armenia and Russia[[1]]. It is further reflected in the policy of the Council of Europe, which requires that new member States undertake to abolish capital punishment as a condition of their admission into the organisation. As a result of these developments the territories encompassed by the member States of the Council of Europe have become a zone free of capital punishment. ... Such a marked development could now be taken as signalling the agreement of the Contracting States to abrogate, or at the very least to modify, the second sentence of Article 2 § 1, particularly when regard is had to the fact that all Contracting States have now signed Protocol No. 6 and that it has been ratified by forty-one States. It may be questioned whether it is necessary to await ratification of Protocol No. 6 by the three remaining States before concluding that the death penalty exception in Article 2 § 1 has been significantly modified. Against such a consistent background, it can be said that capital punishment in peacetime has come to be regarded as an unacceptable ... form of punishment that is no longer permissible under Article 2.” 164. The Court notes that, by opening for signature Protocol No. 13 concerning the abolition of the death penalty in all circumstances, the Contracting States have chosen the traditional method of amendment of the text of the Convention in pursuit of their policy of abolition. At the date of this judgment, three member States have not signed this Protocol and sixteen have yet to ratify it. However, this final step towards complete abolition of the death penalty – that is to say both in times of peace and in times of war – can be seen as confirmation of the abolitionist trend in the practice of the Contracting States. It does not necessarily run counter to the view that Article 2 has been amended in so far as it permits the death penalty in times of peace. 165. For the time being, the fact that there is still a large number of States who have yet to sign or ratify Protocol No. 13 may prevent the Court from finding that it is the established practice of the Contracting States to regard the implementation of the death penalty as inhuman and degrading treatment contrary to Article 3 of the Convention, since no derogation may be made from that provision, even in times of war. However, the Grand Chamber agrees with the Chamber that it is not necessary for the Court to reach any firm conclusion on these points since, for the following reasons, it would be contrary to the Convention, even if Article 2 were to be construed as still permitting the death penalty, to implement a death sentence following an unfair trial. (b) Unfair proceedings and the death penalty (i) Under Article 2 166. As regards the reference in Article 2 of the Convention to “the execution of a sentence of a court”, the Grand Chamber agrees with the Chamber's reasoning (see paragraphs 201-04 of the Chamber judgment): “... Since the right to life in Article 2 of the Convention ranks as one of the most fundamental provisions of the Convention – one from which there can be no derogation in peacetime under Article 15 – and enshrines one of the basic values of the democratic societies making up the Council of Europe, its provisions must be strictly construed (see, mutatis mutandis, McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, pp. 45-46, § 147), a fortiori the second sentence of Article 2 § 1. ... Even if the death penalty were still permissible under Article 2, the Court considers that an arbitrary deprivation of life pursuant to capital punishment is prohibited. This flows from the requirement that '[e]veryone's right to life shall be protected by law'. An arbitrary act cannot be lawful under the Convention (see Bozano, cited above, p. 23, § 54, and pp. 25-26, § 59). ... It also follows from the requirement in Article 2 § 1 that the deprivation of life be pursuant to the 'execution of a sentence of a court', that the 'court' which imposes the penalty be an independent and impartial tribunal within the meaning of the Court's case-law (see Incal, cited above; Çıraklar, cited above; Findlay v. the United Kingdom, judgment of 25 February 1997, Reports 1997-I; and Hauschildt v. Denmark, judgment of 24 May 1989, Series A no. 154), and that the most rigorous standards of fairness be observed in the criminal proceedings both at first instance and on appeal. Since the execution of the death penalty is irreversible, it can only be through the application of such standards that an arbitrary and unlawful taking of life can be avoided (see, in this connection, Article 5 of ECOSOC Resolution 1984/50 and the decisions of the United Nations Human Rights Committee ...; also Advisory Opinion OC-16/99 of 1 October 1999 of the Inter-American Court of Human Rights on 'The right to information on consular assistance in the framework of the guarantee of due process of law', §§ 135‑36, and Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago, § 148 ...). Lastly, the requirement in Article 2 § 1 that the penalty be 'provided by law' means not only that there must exist a basis for the penalty in domestic law but that the requirement of the quality of the law be fully respected, namely that the legal basis be 'accessible' and 'foreseeable' as those terms are understood in the case-law of the Court (see Amann v. Switzerland [GC], no. 27798/95, § 56, ECHR 2000-II, and Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V). ... It follows from the above construction of Article 2 that the implementation of the death penalty in respect of a person who has not had a fair trial would not be permissible.” (ii) Under Article 3 167. The above conclusion concerning the interpretation of Article 2 where there has been an unfair trial must inform the opinion of the Court when it considers under Article 3 the question of the imposition of the death penalty in such circumstances. 168. As the Court has previously noted in connection with Article 3, the manner in which the death penalty is imposed or executed, the personal circumstances of the condemned person and a disproportionality to the gravity of the crime committed, as well as the conditions of detention awaiting execution, are examples of factors capable of bringing the treatment or punishment received by the condemned person within the proscription under Article 3 (see Soering, cited above, p. 41, § 104). 169. In the Court's view, to impose a death sentence on a person after an unfair trial is to subject that person wrongfully to the fear that he will be executed. The fear and uncertainty as to the future generated by a sentence of death, in circumstances where there exists a real possibility that the sentence will be enforced, must give rise to a significant degree of anguish. Such anguish cannot be dissociated from the unfairness of the proceedings underlying the sentence which, given that human life is at stake, becomes unlawful under the Convention. (iii) Application of these principles to the present case 170. The Court notes that there has been a moratorium on the implementation of the death penalty in Turkey since 1984 and that in the present case the Government complied with the Court's interim measure indicated pursuant to Rule 39 to stay the execution. It is further noted that the applicant's file was not sent to Parliament for approval of the death sentence, as was then required by the Turkish Constitution. 171. The Court has also had regard, in this context, to Çınar (cited above) in which the Commission rejected a claim that Article 3 had been violated in the case of an applicant who had been sentenced to death in Turkey. In its reasoning, the Commission took into account the long-standing moratorium on the death penalty and concluded in the circumstances of that case that the risk of the penalty being implemented was illusory. 172. The Grand Chamber agrees with the Chamber that the special circumstances of the instant case prevent it from reaching the same conclusion as that reached in Çınar. The applicant's background as the founder and leader of the PKK, an organisation that had been engaged in a sustained campaign of violence causing many thousands of casualties, had made him Turkey's most wanted person. In view of the fact that the applicant had been convicted of the most serious crimes existing in the Turkish Criminal Code and of the general political controversy in Turkey – prior to the decision to abolish the death penalty – surrounding the question of whether he should be executed, it is not possible to rule out the possibility that the risk that the sentence would be implemented was a real one. In practical terms, the risk remained for more than three years of the applicant's detention in İmralı, from the date of the Court of Cassation's judgment of 25 November 1999 affirming the applicant's conviction until the Ankara National Security Court's judgment of 3 October 2002 commuting the death penalty to which the applicant had been sentenced to imprisonment. 173. As to the nature of the applicant's trial, the Court refers to its conclusions on the applicant's complaints under Article 6 of the Convention. It has found that the applicant was not tried by an independent and impartial tribunal within the meaning of Article 6 § 1 and that there has been a breach of the rights of the defence under Article 6 § 1 taken in conjunction with Article 6 § 3 (b) and (c), as the applicant had no access to a lawyer while in police custody and was unable to communicate with his lawyers out of the hearing of officials, restrictions had been imposed on the number and length of his lawyers' visits to him, he was unable to consult the case file until an advanced stage of the proceedings, and his lawyers did not have sufficient time to consult the file properly. 174. The death penalty has thus been imposed on the applicant following an unfair procedure which cannot be considered to conform to the strict standards of fairness required in cases involving a capital sentence. Moreover, he had to suffer the consequences of the imposition of that sentence for nearly three years. 175. Consequently, the Court concludes that the imposition of the death sentence on the applicant following an unfair trial by a court whose independence and impartiality were open to doubt amounted to inhuman treatment in violation of Article 3 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION: CONDITIONS OF DETENTION 176. The applicant further complained that the conditions in which he had been transferred from Kenya to Turkey and detained on the island of İmralı amounted to treatment contrary to Article 3 of the Convention, which provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Conditions in which the applicant was transferred from Kenya to Turkey 1. The applicant's submissions 177. The applicant said that he had been “abducted” in Kenya by Turkish officials and that his abduction necessarily constituted a violation of his right to respect for his physical integrity. He added that the circumstances in which the arrest had been effected also amounted to degrading and inhuman treatment. In his submission, the fact that he had been abducted for political reasons was in itself capable of constituting a breach of Article 3. 2. The Government's submissions 178. The Government asked the Grand Chamber to uphold the Chamber's finding that the conditions in which the applicant was transferred from Kenya to Turkey did not infringe Article 3. 3. The Court's assessment (a) General principles 179. Article 3 of the Convention enshrines one of the fundamental values of democratic societies (see Soering, cited above, pp. 34-35, § 88). The Court is well aware of the immense difficulties faced by States in modern times in protecting their populations from terrorist violence. However, even in these circumstances, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim's conduct. Article 3 makes no provision for exceptions and no derogation from it is permissible even under Article 15 of the Convention in time of war or other national emergency (see Chahal v. the United Kingdom, judgment of 15 November 1996, Reports 1996-V, p. 1855, § 79). 180. 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 depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see, for example, Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, § 162). In assessing the evidence on which to base the decision whether there has been a violation of Article 3, the Court adopts the standard of proof “beyond reasonable doubt” but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the parties when evidence is being obtained has to be taken into account (ibid., pp. 64‑65, § 161). 181. Treatment will be considered to be “inhuman” within the meaning of Article 3 where, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000-XI). Furthermore, in considering whether a punishment or treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3 (see Albert and Le Compte v. Belgium, judgment of 10 February 1983, Series A no. 58, p. 13, § 22). In order for an arrest or detention in connection with court proceedings to be degrading within the meaning of Article 3, the humiliation or debasement to which it gives rise must be of a special level and in any event different from the usual degree of humiliation inherent in arrest or detention (see, mutatis mutandis, Raninen v. Finland, judgment of 16 December 1997, Reports 1997-VIII, pp. 2821-22, § 55). 182. Handcuffing, one of the forms of treatment complained of in the present case, does not normally give rise to an issue under Article 3 of the Convention where it has been imposed in connection with lawful arrest or detention and does not entail the use of force, or public exposure, exceeding what is reasonably considered necessary in the circumstances. In this regard, it is of importance for instance whether there is reason to believe that the person concerned would resist arrest or try to abscond or cause injury or damage. In addition, the public nature of the treatment or the mere fact that the victim is humiliated in his own eyes may be a relevant consideration (see Tyrer v. the United Kingdom, judgment of 25 April 1978, Series A no. 26, p. 16, § 32, and Raninen, cited above, p. 2822, § 56). 183. Artificially depriving prisoners of their sight by blindfolding them for lengthy periods spread over several days may, when combined with other ill-treatment, subject them to strong psychological and physical pressure. The Court must examine the effect of such treatment in the special circumstances of each case (see, mutatis mutandis, Salman v. Turkey [GC], no. 21986/93, § 132, ECHR 2000-VII). (b) Application of the above principles to the instant case 184. The Grand Chamber has examined the Chamber's findings and, in the absence of any additional arguments by the parties in support of their views, adopts them: “... the applicant was forced to wear handcuffs from the moment of his arrest by the Turkish security forces on the aircraft until his arrival at the prison on the island of İmralı. [The Court] also notes that he was suspected of being the leader of an armed separatist movement that was engaged in an armed struggle against the Turkish security forces and that he was considered dangerous. The Court accepts the Government's submission that the sole purpose of requiring the applicant to wear handcuffs as one of the security measures taken during the arrest phase was to prevent him from attempting to abscond or causing injury or damage to himself or others. ... As regards the blindfolding of the applicant during his journey from Kenya to Turkey, the Court observes that that was a measure taken by the members of the security forces in order to avoid being recognised by the applicant. They also considered that it was a means of preventing the applicant from attempting to escape or injuring himself or others. The applicant was not questioned by the security forces when he was blindfolded. The Court accepts the Government's explanation that the purpose of that precaution was not to humiliate or debase the applicant but to ensure that the transfer proceeded smoothly and it acknowledges that, in view of the applicant's character and the reaction to his arrest, considerable care and proper precautions were necessary if the operation was to be a success. ... The Court's view on this point is not altered by the fact that the applicant was photographed wearing a blindfold in the aircraft that took him back to Turkey. It points out that there had been fears for the applicant's life following his arrest and the photographs, which the Government say were intended for use by the police, served to reassure those concerned about his welfare. The Court notes, lastly, that the applicant was not wearing a blindfold when he was photographed in Turkey shortly before his transfer to the prison. ... The applicant said that he was under sedation when he was transferred from Kenya to Turkey, the drugs having been administered to him either at the Greek embassy in Nairobi before he boarded the plane or in the aircraft that had taken him to Turkey. The Government rejected the latter suggestion. The Court notes that there is no evidence in the case file to substantiate the allegation that the Turkish security forces administered drugs to the applicant. Since the applicant also seems to think that the most probable explanation is that he was drugged before he was put on board the flight from Nairobi to Turkey, the Court considers that this allegation against the Turkish officials has not been established. ... Furthermore, at the hearing on 31 May 1999 the applicant stated in the National Security Court: 'Since my arrest I have not up to now been subjected to torture, ill-treatment or verbal abuse.' While the applicant's vulnerability at the time as a result of his being on trial for a capital offence means that that statement does not by itself conclusively establish the facts, it does support the Government's submissions. ... Lastly, since the applicant's arrest was lawful under Turkish law, the Court cannot accept the applicant's submission that his 'abduction' abroad on account of his political opinions constituted inhuman or degrading treatment within the meaning of Article 3. ... That being so, the Court considers that it has not been established 'beyond all reasonable doubt' that the applicant's arrest and the conditions in which he was transferred from Kenya to Turkey exceeded the usual degree of humiliation that is inherent in every arrest and detention or attained the minimum level of severity required for Article 3 of the Convention to apply.” 185. Consequently, there has been no violation of Article 3 on that account. B. Conditions of detention on the island of İmralı 1. The applicant's submissions 186. The applicant disagreed with the Chamber's finding that the conditions of his detention on the island of İmralı did not infringe Article 3. He submitted that the conditions were inhuman within the meaning of Article 3 or at the very least entailed disproportionate interference with the exercise of his rights under Article 8. He had been the sole inmate in the prison for more than five years and his social isolation was made worse by the ban on his having a television set or communicating by telephone, and by the practical obstacle inadequate sea transport facilities posed to visits by his lawyers and members of his family. The applicant pointed out that the CPT's recommendations for reduced social isolation had not been followed by the prison authorities. His prison conditions were, in his submission, harsher than those of other prisoners. The applicant said that his health had deteriorated as a result of the particular weather conditions that prevailed on the island of İmralı and that the Government's insistence on keeping him in that prison had more to do with their repressive attitude than security. There was no justification for the Government's refusal to transfer him to an ordinary prison or to allow visitors to travel to the island by helicopter. 2. The Government's submissions 187. The Government invited the Grand Chamber to endorse the Chamber's finding that the conditions of the applicant's detention on the island of İmralı did not infringe Article 3. They pointed out that the applicant had at no stage been held in cellular confinement. He received visits from his lawyers and members of his family every week. The adverse maritime weather conditions in the winter of 2002-03 that had been responsible for the cancellation of some visits were highly unusual. 188. The Government produced photographs which in their submission showed that the applicant's cell was suitably furnished. They pointed out that the applicant had been tried and convicted of being the head of a major armed separatist organisation that continued to regard him as its leader. All the restrictions imposed on his telephone communications were intended to prevent the applicant from continuing to run the organisation from his prison cell, and that was a national security issue. However, he was able to read books and daily newspapers of his choice and to listen to the radio. No restrictions had been placed on his written communications with the outside world. As to the applicant's health, he was examined frequently by doctors and psychologists, whose daily medical reports were sent to the Court on a regular basis. 189. The Government asserted that the applicant was treated in strict conformity with European standards governing conditions of detention. In the cases in which the Court had found a violation of Article 3, the conditions of detention were far worse than in Mr Öcalan's case (for instance, Poltoratskiy v. Ukraine, no. 38812/97, ECHR 2003-V, and Kuznetsov v. Ukraine, no. 39042/97, 29 April 2003). 3. The Court's assessment 190. The Court must first determine the period of the applicant's detention to be taken into consideration when examining his complaints under Article 3. It points out that the “case” referred to the Grand Chamber embraces in principle all aspects of the application previously examined by the Chamber in its judgment, the scope of its jurisdiction in the “case” being limited only by the Chamber's decision on admissibility (see, mutatis mutandis, K. and T. v. Finland [GC], no. 25702/94, §§ 139-41, ECHR 2001-VII; Kingsley v. the United Kingdom [GC], no. 35605/97, § 34, ECHR 2002-IV; Göç v. Turkey [GC], no. 36590/97, §§ 35-37, ECHR 2002-V; and Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, § 56, ECHR 2003-II). More specifically, within the compass delimited by the decision on the admissibility of the application, the Court may deal with any issue of fact or law that arises during the proceedings before it (see, among many other authorities, Guerra and Others v. Italy, judgment of 19 February 1998, Reports 1998-I, p. 223, § 44; Chahal, cited above, p. 1856, § 86; and Ahmed v. Austria, judgment of 17 December 1996, Reports 1996-VI, p. 2207, § 43). There is no justification for excluding from the scope of that general jurisdiction events that took place up to the date of the Grand Chamber's judgment, provided that they are directly related to the complaints declared admissible. Furthermore, in the instant case, the applicant has already made submissions in the proceedings before the Chamber outlining his arguments on the effects his prolonged social isolation while in custody were likely to have. The Court will therefore take into consideration the conditions of the applicant's detention between 16 February 1999 and the date this judgment is adopted. The fact that the applicant has in the interim lodged a new application concerning the latter part of his detention does not alter the position. 191. Complete sensory isolation coupled with total social isolation can destroy the personality and constitutes a form of inhuman treatment that cannot be justified by the requirements of security or any other reason. On the other hand, the prohibition of contact with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or punishment (see, among other authorities, Messina v. Italy (no. 2) (dec.), no. 25498/94, ECHR 1999-V). 192. In the present case, it is true that the applicant's detention posed exceptional difficulties for the Turkish authorities. The applicant, as the leader of a large, armed separatist movement, is considered in Turkey to be the most dangerous terrorist in the country. Reactions to his arrest and differences of opinion that have come to light within his own movement show that his life is genuinely at risk. It is also a reasonable presumption that his supporters will seek to help him escape from prison. In those circumstances, it is understandable that the Turkish authorities should have found it necessary to take extraordinary security measures to detain the applicant. 193. The applicant's prison cell is indisputably furnished to a standard that is beyond reproach. From the photographs in its possession and the findings of the delegates of the CPT, who inspected the applicant's prison during their visit to Turkey from 2 to 14 September 2001, the Court notes that the cell the applicant occupies alone is large enough to accommodate a prisoner and furnished with a bed, table, armchair and bookshelves. It is also air-conditioned, has washing and toilet facilities and a window overlooking an inner courtyard. The applicant appears to be under medical supervision that is both strict and regular. The Court considers that these conditions do not give rise to any issue under Article 3 of the Convention. 194. Further, the Court considers that the applicant cannot be regarded as being kept in sensory isolation or cellular confinement. It is true that, as the sole inmate, his only contact is with prison staff. He has books, newspapers and a radio at his disposal. He does not have access to television programmes or a telephone. He does, however, communicate with the outside world by letter. He sees a doctor every day and his lawyers and members of his family once a week (his lawyers were allowed to see him twice a week during the trial). The difficulties in gaining access to İmralı Prison in adverse weather conditions appear to have been resolved, as the prison authorities were provided with a suitable craft at the end of 2004. 195. The Court notes the CPT's recommendations that the applicant's relative social isolation should not be allowed to continue for too long and that its effects should be attenuated by giving him access to a television and to telephone communications with his lawyers and close relatives. However, like the Chamber, the Grand Chamber is also mindful of the Government's concerns that the applicant may seek to take advantage of communications with the outside world to renew contact with members of the armed separatist movement of which he was leader. These concerns cannot be said to be unfounded. An added consideration is the Government's fear that it would be difficult to protect the applicant's life in an ordinary prison. 196. While concurring with the CPT's recommendations that the long‑term effects of the applicant's relative social isolation should be attenuated by giving him access to the same facilities as other high security prisoners in Turkey, such as television and telephone contact with his family, the Grand Chamber agrees with the Chamber that the general conditions in which he is being detained at İmralı Prison have not thus far reached the minimum level of severity required to constitute inhuman or degrading treatment within the meaning of Article 3 of the Convention. Consequently, there has been no violation of that provision on that account. V. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION 197. The applicant complained that he had been hindered in the exercise of his right of individual application in that his lawyers in Amsterdam had not been permitted to contact him after his arrest and that the Government had delayed in replying to the Court's request for information. He alleged a violation of Article 34 of the Convention, which reads as follows: “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” 198. The Government asked the Court to dismiss those complaints. 199. The Court is called upon to decide whether the two matters raised by the applicant genuinely hindered him in the effective exercise of his right of application. 200. As regards his inability to communicate with his lawyers in Amsterdam following his arrest, the Court notes that a group of representatives composed of lawyers chosen by the applicant, including the lawyers in Amsterdam, subsequently applied to the Court and put forward all the applicant's allegations concerning the period in which he had had no contact with his lawyers. There is therefore nothing to indicate that the applicant was hindered in the exercise of his right of individual application to any significant degree. 201. As to the Government's delay in replying to the Chamber's second request for information, the Court reiterates that by virtue of Article 34 of the Convention Contracting States undertake to refrain from any act or omission that may hinder the effective exercise of an individual applicant's right of application. A failure by a Contracting State to comply with interim measures is to be regarded as preventing the Court from effectively examining the applicant's complaint and as hindering the effective exercise of his or her right and, accordingly, as a violation of Article 34 of the Convention (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 128, ECHR 2005-I). However, though regrettable, the Government's failure to supply the information requested by the Court earlier did not, in the special circumstances of the case, prevent the applicant from setting out his complaints about the criminal proceedings that had been brought against him. Accordingly, the applicant has not been obstructed in the exercise of his right of individual application. 202. In conclusion, there has been no violation of Article 34 in fine of the Convention. VI. OTHER COMPLAINTS 203. Relying on the same facts, the applicant also alleged a violation of Articles 7, 8, 9, 10, 13, 14 and 18 of the Convention, taken individually or in conjunction with the aforementioned provisions of the Convention. 204. Repeating the arguments set out above with regard to the other complaints, the Government submitted that those complaints too were ill‑founded and had to be dismissed. 205. The applicant wished to pursue his complaints. 206. Having examined the complaints, which, incidentally, are not set out in any detail in the applicant's submissions, the Court notes that they have virtually the same factual basis as the complaints it has examined in previous sections of this judgment. Consequently, it considers that no separate examination of the complaints under Articles 7, 8, 9, 10, 13, 14 and 18 of the Convention, taken individually or in conjunction with Articles 2, 3, 5 and 6, is necessary. VII. ARTICLES 46 AND 41 OF THE CONVENTION A. Article 46 of the Convention 207. Article 46 of the Convention provides: “1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.” 208. In the event of the Court finding a violation of Article 6, the applicant requested a retrial by an independent and impartial court in which he would enjoy full defence rights. In the event of the Court finding a violation of Article 3 on account of the conditions of his detention, he requested a transfer to a prison on the mainland, and the facilitation of contact with other prisoners, members of his family and his lawyers. 209. While reaffirming their view that there had been no violation of the Convention provisions relied on by the applicant, the Government submitted, in the alternative, that a finding of a violation could constitute in itself sufficient just satisfaction for the applicant. 210. As to the specific measures requested by the applicant, the Court reiterates that its judgments are essentially declaratory in nature and that, in general, it is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order in order to discharge its obligation under Article 46 of the Convention (see, among other authorities, Assanidze v. Georgia [GC], no. 71503/01, § 202, ECHR 2004-II; Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII; and Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, § 20, ECHR 2001-I). However, exceptionally, with a view to helping the respondent State to fulfil its obligations under Article 46, the Court will seek to indicate the type of measure that might be taken in order to put an end to a systemic situation it has found to exist. In such circumstances, it may propose various options and leave the choice of measure and its implementation to the discretion of the State concerned (see Broniowski v. Poland [GC], no. 31443/96, § 194, ECHR 2004-V). In other exceptional cases, the nature of the violation found may be such as to leave no real choice as to the measures required to remedy it and the Court may decide to indicate only one such measure (see Assanidze, cited above, § 202). In the specific context of cases against Turkey concerning the independence and impartiality of the national security courts, Chambers of the Court have indicated in certain judgments that were delivered after the Chamber judgment in the present case that, in principle, the most appropriate form of redress would be for the applicant to be given a retrial without delay if he or she so requests (see, among other authorities, Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003). It is also to be noted that a Chamber of the Court has adopted a similar stance in a case against Italy where the finding of a breach of the fairness guarantees contained in Article 6 was not related to the lack of independence or impartiality of the domestic courts (see Somogyi v. Italy, no. 67972/01, § 86, ECHR 2004-IV). The Grand Chamber endorses the general approach adopted in the above‑mentioned case-law. It considers that where an individual, as in the instant case, has been convicted by a court that did not meet the Convention requirements of independence and impartiality, a retrial or a reopening of the case, if requested, represents in principle an appropriate way of redressing the violation. However, the specific remedial measures, if any, required of a respondent State in order to discharge its obligations under Article 46 of the Convention must depend on the particular circumstances of the individual case and be determined in the light of the terms of the Court's judgment in that case, and with due regard to the above case-law of the Court. B. Article 41 of the Convention 211. 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.” 1. Damage 212. The Court notes that the applicant has not put forward any claim in respect of pecuniary or non-pecuniary damage and concludes that any damage the applicant may have sustained has been sufficiently compensated for by its findings of a violation of Articles 3 (as regards the imposition of the death penalty following an unfair trial), 5 and 6 of the Convention. 2. Costs and expenses 213. During the proceedings before the Chamber, the applicant had claimed compensation of 1,123,933.96 euros (EUR) for the costs and expenses he had incurred for the seven lawyers and three trainee lawyers who had acted for him outside Turkey and the costs and expenses of six of his lawyers in Turkey. The Chamber awarded him EUR 100,000 under that head. The applicant claimed an additional EUR 75,559.32 in respect of the proceedings under Article 43 of the Convention. He explained that that sum was broken down into EUR 65,978.60 for the fees of his lawyers and their assistants and EUR 9,580.72 for sundry expenses, such as translation costs and travel expenses. 214. The Government submitted that those claims were manifestly unreasonable, in particular as regards the amount of the lawyers' fees. 215. According to the Court's established case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually incurred, were necessarily incurred and are also reasonable as to quantum (see The Sunday Times v. the United Kingdom (Article 50), judgment of 6 November 1980, Series A no. 38, p. 13, § 23). Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002). 216. In the present case, the Court notes that it has upheld only some of the applicant's complaints under the Convention. It therefore notes that not all the time or all the meetings for which the applicant's main lawyers claimed remuneration were spent solely on the complaints in respect of which a violation has been found. 217. The Court considers that the applicant should only be reimbursed part of his costs incurred before the Court. Having regard to the circumstances of the case, the fee scales applicable in the United Kingdom and in Turkey and the complexity of certain issues raised by the application, and ruling on an equitable basis, it considers it reasonable to award the applicant EUR 120,000 in respect of the complaints put forward by all his legal representatives. That sum is to be paid into bank accounts nominated by his Turkish and United Kingdom representatives. 3. Default interest 218. 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 1. Dismisses unanimously the Government's preliminary objection concerning Article 5 §§ 1, 3 and 4 of the Convention; 2. Holds unanimously that there has been a violation of Article 5 § 4 of the Convention on account of the lack of a remedy by which the applicant could have the lawfulness of his detention in police custody decided; 3. Holds unanimously that there has been no violation of Article 5 § 1 of the Convention on account of the applicant's arrest; 4. Holds unanimously that there has been a violation of Article 5 § 3 of the Convention on account of the failure to bring the applicant before a judge promptly after his arrest; 5. Holds by eleven votes to six that there has been a violation of Article 6 § 1 of the Convention in that the applicant was not tried by an independent and impartial tribunal; 6. Holds unanimously that there has been a violation of Article 6 § 1 of the Convention, taken in conjunction with Article 6 § 3 (b) and (c), in that the applicant did not have a fair trial; 7. Holds unanimously that there has been no violation of Article 2 of the Convention; 8. Holds unanimously that there has been no violation of Article 14 of the Convention, taken in conjunction with Article 2, as regards the implementation of the death penalty; 9. Holds unanimously that there has been no violation of Article 3 of the Convention as regards the complaint concerning the implementation of the death penalty; 10. Holds by thirteen votes to four that there has been a violation of Article 3 of the Convention as regards the imposition of the death penalty following an unfair trial; 11. Holds unanimously that there has been no violation of Article 3 of the Convention as regards the conditions in which the applicant was transferred from Kenya to Turkey; 12. Holds unanimously that there has been no violation of Article 3 of the Convention, as regards the conditions of the applicant's detention on the island of İmralı; 13. Holds unanimously that no separate examination is necessary of the applicant's remaining complaints under Articles 7, 8, 9, 10, 13, 14 and 18 of the Convention, taken individually or in conjunction with the aforementioned provisions of the Convention; 14. Holds unanimously that there has been no violation of Article 34 in fine of the Convention; 15. Holds unanimously that its findings of a violation of Articles 3, 5 and 6 of the Convention constitute in themselves sufficient just satisfaction for any damage sustained by the applicant; 16. Holds unanimously (a) that the respondent State is to pay the applicant's lawyers in the manner set out in paragraph 217 of the present judgment, within three months, for costs and expenses, the sum of EUR 120,000 (one hundred and twenty thousand euros) to be converted into new Turkish liras or pounds sterling, depending on where payment is made, at the rate applicable at the date of settlement, plus any value-added tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 17. Dismisses unanimously the remainder of the applicant's claim for just satisfaction. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 12 May 2005. Luzius WildhaberPresidentPaul MahoneyRegistrar In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a) partly concurring, partly dissenting opinion of Mr Garlicki; (b) joint partly dissenting opinion of Mr Wildhaber, Mr Costa, Mr Caflisch, Mr Türmen, Mr Garlicki and Mr Borrego Borrego; (c) joint partly dissenting opinion of Mr Costa, Mr Caflisch, Mr Türmen and Mr Borrego Borrego. L.W.P.J.M. PARTLY CONCURRING, PARTLY DISSENTING OPINION OF JUDGE GARLICKI I. Article 3 1. I am writing this separate opinion because I feel that, in this case, the Court should have decided, in the operative provisions of its judgment, that Article 3 had been violated because any imposition of the death penalty represents per se inhuman and degrading treatment prohibited by the Convention. Thus, while correct, the majority's conclusion that the imposition of the death penalty following an unfair trial represents a violation of Article 3 seems to me to stop short of addressing the real problem. 2. It is true that the majority's conclusion was sufficient to establish a violation in the instant case and that it was not absolutely necessary to produce any firm conclusion on the – more general – point of whether the implementation of the death penalty should now be regarded as inhuman and degrading treatment contrary to Article 3 in all circumstances. I accept that there are many virtues in judicial self-restraint, but am not persuaded that this was the best occasion to exercise it. I am fully aware that the original text of the Convention allowed capital punishment provided the guarantees referred to in Article 2 § 1 were in place. I am also aware that in Soering v. the United Kingdom (judgment of 7 July 1989, Series A no. 161) this Court declined to hold that the new international context permitted it to conclude that the exception provided for in the second sentence of Article 2 § 1 had been abrogated. Today the Court, while agreeing that “it can be said that capital punishment in peacetime has come to be regarded as an unacceptable ... form of punishment which is no longer permissible under Article 2” (see paragraph 163 of the judgment), seems to be convinced that there is no room for the death penalty even within the original text of the Convention. But, at the same time, it has chosen not to express that position in a universally binding manner. In my opinion, there are some arguments suggesting that the Court could and should have gone further in this case. 3. First of all, there seems to be no dispute over the substance of the problem. The Court was clearly right in observing that, over the past fifteen years, the territories encompassed by the member States of the Council of Europe have become a zone free of capital punishment and that such a development could now be taken as signalling the agreement of the Contracting States to abrogate, or at the very least to modify, the second sentence of Article 2 § 1. It is not necessary to recapitulate here all the relevant developments in Europe; it seems sufficient to quote the 2002 opinion of the Parliamentary Assembly of the Council of Europe in which it recalled that in its most recent resolutions “it reaffirmed its beliefs that the application of the death penalty constitutes inhuman and degrading punishment and a violation of the most fundamental right, that to life itself, and that capital punishment has no place in civilised, democratic societies governed by the rule of law”. Thus, today, in 2005, condemnation of the death penalty has become absolute and even fairness of the highest order at trial cannot legitimate the imposition of such a penalty. In other words, it is possible to conclude that the member States have agreed through their practice to modify the second sentence of Article 2 § 1. The only problem is: who shall have the power to declare, in a binding manner, that such modification has taken place? So, this is a problem not of substance, but of jurisdiction (competence). In consequence, the only question that remains is whether the Court has the power to state the obvious truth, namely that capital punishment has now become an inhuman and degrading punishment per se. 4. In answering this question, it is necessary to bear in mind that the Convention, as an international treaty, should be applied and interpreted in accordance with general rules of international law, in particular Article 39 of the Vienna Convention. This suggests that the only way to modify the Convention is to follow the “normal procedure of amendment” (see paragraphs 103-04 of Soering, cited above, and paragraphs 164-65 of the present judgment). But the Convention represents a very distinct form of international instrument and – in many respects – its substance and process of application are more akin to those of national constitutions than to those of “typical” international treaties. The Court has always accepted that the Convention is a living instrument and must be interpreted in the light of present-day conditions. This may result (and, in fact, has on numerous occasions resulted) in judicial modifications of the original meaning of the Convention. From this perspective, the role of our Court is not very different from the role of national Constitutional Courts, whose mandate is not only to defend constitutional provisions on human rights, but also to develop them. The Strasbourg Court has demonstrated such a creative approach to the text of the Convention many times, holding that the Convention rights and freedoms are applicable to situations which were not envisaged by the original drafters. Thus, it is legitimate to assume that, as long as the member States have not clearly rejected a particular judicial interpretation of the Convention (as occurred in relation to the expulsion of aliens, which became the subject of regulation by Protocols Nos. 4 and 7), the Court has the power to determine the actual meaning of words and phrases which were inserted into the text of the Convention more than fifty years ago. In any event, and this seems to be the situation with regard to the death penalty, the Court may so proceed when its interpretation remains in harmony with the values and standards that have been endorsed by the member States. 5. This Court has never denied that the “living-instrument approach” may lead to a judicial imposition of new, higher standards of human rights protection. However, with respect to capital punishment, it adopted – in Soering – “a doctrine of pre-emption”. As I have mentioned above, the Court found that, since the member States had decided to address the problem of capital punishment by way of formal amendments to the Convention, this matter became the “preserve” of the States and the Court was prevented from applying its living-instrument doctrine. I am not sure whether such an interpretation was correct in Soering or applicable to the present judgment. The judgment in Soering was based on the fact that, although Protocol No. 6 had provided for the abolition of the death penalty, several member States had yet to ratify it in 1989. Thus, it would have been premature for the Court to take any general position as to the compatibility of capital punishment with the Convention. Now, the majority raises basically the same argument with respect to Protocol No. 13, which, it is true, remains in the process of ratification. But this may only demonstrate a hesitation on the part of certain member States over the best moment to irrevocably abolish the death penalty. At the same time, it can no longer be disputed that – on the European level – there is a consensus as to the inhuman nature of the death penalty. Therefore, the fact that governments and politicians are preparing a formal amendment to the Convention may be understood more as a signal that capital punishment should no longer exist than as a decision pre-empting the Court from acting on its own initiative. That is why I am not convinced by the majority's replication of the Soering approach. I do not think that there are any legal obstacles to this Court taking a decision with respect to the nature of capital punishment. 6. Such a decision would have universal applicability; in particular, it would prohibit any imposition of the death penalty, not only in times of peace but also in wartime or other warlike situations. But it should not stop the Court from taking this decision today. It may be true that the history of Europe demonstrates that there have been wars, like the Second World War, during which (or after which) there was justification for capital punishment. I do not think, however, that the present interpretation of the Convention should provide for such exceptions: it would be rather naïve to believe that, if a war of a similar magnitude were to break out again, the Convention as a whole would be able to survive, even if concessions were made with regard to the interpretation of capital punishment. On the other hand, if there is a war or armed conflict of a local dimension only – and this has been the experience of the last five decades in Europe – the international community could and should insist on respect for basic values of humanity, inter alia, on the prohibition of capital punishment. The same reasoning should apply to other “wars”, like – in particular – the “war on terror”, in which there is today no place for capital punishment (see Article X § 2 of the Committee of Ministers of the Council of Europe's “Guidelines on human rights and the fight against terrorism” issued on 11 July 2002). Furthermore, it is notable that, as the Statute of the recently established International Criminal Court shows, the international community is of the opinion that even the most dreadful crimes can be dealt with without resorting to capital punishment. 7. In the last fifteen years, several Constitutional Courts in Europe have been invited to take a position on capital punishment. The courts of Hungary, Lithuania, Albania and Ukraine had no hesitation in decreeing that capital punishment was no longer permitted under the Constitutions of their respective countries, even if this was not clearly stated in the written text of those documents. The Constitutional Courts have, nevertheless, adopted the position that the inability of the political branches of government to take a clear decision on the matter should not impede the judicial branch from doing so. A similar approach was taken by the Constitutional Court of South Africa. I am firmly convinced that the European Court of Human Rights should have followed the same path in the present judgment. II. Article 6 § 1 To my regret, I cannot join the majority in finding a violation of Article 6 § 1 of the Convention on the ground that the applicant was not tried by an independent and impartial tribunal. In this respect, my views are set out in the joint partly dissenting opinion I have expressed with Mr Wildhaber, Mr Costa, Mr Caflisch, Mr Türmen and Mr Borrego Borrego. JOINT PARTLY DISSENTING OPINIONOF JUDGES WILDHABER, COSTA, CAFLISCH, TÜRMEN, GARLICKI AND BORREGO BORREGO (Translation) 1. The majority of the Court found that in the present case the Ankara National Security Court was not an independent and impartial court, owing to the presence of a military judge on the bench. We disagree with that conclusion for the following reasons. 2. It is true that since Incal v. Turkey (judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV) the principle followed by the Court in this type of case is that an applicant has legitimate cause to doubt the independence and impartiality of a national security court when a military judge sits alongside two civilian judges. The Court was divided in Incal and decided the point by a majority of twelve to eight (see, for the opposite view, the opinion of the judges in the minority, pp. 1578-79). 3. It is equally true that the Incal precedent has since been followed in a number of judgments (including Sürek v. Turkey (no. 1) [GC], no. 26682/95, ECHR 1999‑IV – see Mr Wildhaber's declaration and the dissenting opinion of Mr Gölçüklü). 4. However, things have changed. Within a very short space of time, Turkey took remedial action following the judgment in Incal and did not hesitate to amend its Constitution (and subsequently its legislation) so that only civilian judges would sit in the national security courts (which have since been abolished). By 18 June 1999, the Constitution had already been amended and the legislative amendments followed just four days later, with immediate effect (see paragraphs 53 and 54 of the present judgment). It would be desirable for all States Parties to the Convention to comply with the Court's judgments within such a reasonable period. 5. The amended legislation was immediately applied to the applicant's trial, with the third civilian judge replacing the military judge the day after it came into force. It should be noted that the replacement judge had been present throughout the proceedings and had attended all the hearings of the National Security Court from the start of the trial, that the National Security Court noted that he had read the file and the transcripts (see paragraph 44 of the judgment) and, lastly, that he was at liberty to request additional evidence or investigations. 6. Thus the National Security Court's verdict and sentence were handed down by a court composed entirely of civilian judges, all three of whom had taken part in the entire trial. To say that the presence of a military judge, who was replaced under new rules (that were introduced to comply with the case-law of the European Court of Human Rights) made the National Security Court appear not to be independent and impartial is to take the “theory” of appearances very far. That, in our opinion at least, is neither realistic, nor even fair. 7. For this reason we consider that the Court's approach in İmrek v. Turkey ((dec.), no. 57175/00, 28 January 2003) was wiser. In that case, against the same background and in view of the Turkish authorities' positive response to the Incal line of authority, it held that the complaint was manifestly ill-founded, as the problem had been solved by the military judge's replacement by a civilian judge during the course of the trial. 8. In addition, in Mr Öcalan's case, and without departing from the principles established in Incal itself, it is hard to agree with what is said in paragraph 116 of the judgment. The applicant is there described as a civilian (or equated to a civilian). However, he was accused of instigating serious terrorist crimes leading to thousands of deaths, charges which he admitted at least in part. He could equally well be described as a warlord, which goes a long way to putting into perspective the fact that at the start of his trial one of the three members of the court before which he appeared was himself from the military. 9. Inherent in a system based on the principle of subsidiarity is loyal cooperation between a supranational judicial body, such as this Court, and the States which have adhered to the system. Imposing standards that are too high does not appear to us to be the best way of encouraging such cooperation or of expressing satisfaction to the States that provide it. JOINT PARTLY DISSENTING OPINIONOF JUDGES COSTA, CAFLISCH, TÜRMENAND BORREGO BORREGO In paragraph 175 of the judgment, the majority expresses the opinion that “the imposition of the death sentence ... following an unfair trial by a court whose independence and impartiality were open to doubt amounted to inhuman treatment ...”. First of all, we do not agree with the majority that the Court which sentenced Mr Öcalan was not independent and impartial. However, even if it had been, we do not believe that this constitutes a breach of Article 3. The majority accepts that Article 3 cannot be interpreted as prohibiting the death penalty since that would nullify the clear wording of Article 2 (paragraph 162 of the judgment). In other words, according to the majority, while the death penalty itself does not constitute a violation of Article 3, a procedural defect in respect of impartiality and independence of the court which imposes the death penalty constitutes a violation of Article 3. According to our case-law, fear and anguish due to the impartiality and independence of a court is a question to be examined under Article 6 of the Convention rather than under Article 3. “... In deciding whether there is a legitimate reason to fear that a particular court lacks independence and impartiality, the standpoint of the accused is important without being decisive” (see Incal v. Turkey, judgment of 9 June 1998, Reports of Judgments and Decisions 1998‑IV, pp. 1572-73, § 71). “... [T]he applicant could legitimately fear ... because one of the judges ... was a military judge” (ibid., p. 1573, § 72). Similar sentences are contained in Çıraklar v. Turkey (judgment of 28 October 1998, Reports 1998-VII, pp. 3072-74, §§ 38 and 40) and numerous other judgments. In all these judgments, the Court found a violation of Article 6 due to the fear created by the presence of a military judge. Moreover, inhuman treatment within the meaning of Article 3 must attain a minimum level of severity. The applicant must show beyond reasonable doubt that he has suffered fear and anguish that reaches the threshold level required by Article 3 (see, mutatis mutandis, V. v. the United Kingdom [GC], no. 24888/94, ECHR 1999‑IX). In the present case, there is no evidence that the applicant has suffered fear and anguish that reaches the necessary threshold due to a lack of impartiality and independence on the part of the national security court. As stated in paragraph 39 of the judgment, during the trial the applicant accepted the main charge against him under Article 125 of the Turkish Criminal Code, that is to say having accomplished acts aimed at separating a part of the State's territory. He also accepted political responsibility for the PKK's general strategy as its leader and admitted having envisaged the establishment of a separate State on the territory of the Turkish State. He knew what the charge against him was and what the penalty would be (there is only one penalty provided for in Article 125 of the Turkish Criminal Code). He also stated expressly that he accepted the National Security Court's jurisdiction. Under such circumstances, the presence of a military judge at an early stage of the trial can hardly have caused fear and anguish reaching a threshold constituting a violation of Article 3. Furthermore, for a threat to amount to inhuman treatment there must be a “real risk”. A mere possibility is not in itself sufficient (see Vilvarajah and Others v. the United Kingdom, judgment of 30 October 1991, Series A no. 215, p. 37, § 111). The threat should be “sufficiently real and immediate” (see Campbell and Cosans v. the United Kingdom, judgment of 25 February 1982, Series A no. 48, p. 12, § 26). “It must be shown that the risk is real” (H.L.R. v. France, judgment of 29 April 1997, Reports 1997-III, p. 758, § 40). In the present case, there is no ground to believe that there was a real and immediate risk that the applicant would be executed, for the following reasons. (a) In Turkey, the death penalty has not been executed since 1984. (b) The Government, by an official communication sent to the Court, accepted the Rule 39 decision of former Section 1 and stayed Mr Öcalan's execution (see paragraph 5 of the judgment). (c) In compliance with the Rule 39 decision, the Government did not send the applicant's file to Parliament for the death sentence to be approved (under the Turkish Constitution, the death penalty may be executed only after Parliament adopts a law approving the sentence). In other words, the process of execution never started. Under such circumstances, it is not possible to conclude that a real threat of execution existed for Mr Öcalan in the period between the Turkish court's decision and the abolition of the death penalty in Turkey. In Soering v. the United Kingdom (judgment of 7 July 1989, Series A no. 161), the Court ruled, mutatis mutandis, that there was no inhuman treatment as long as the Government complied with the interim measure indicated by the Strasbourg institutions (ibid., pp. 44-45, § 111). The same considerations apply in the present case. Since the Government agreed to comply with the Rule 39 decision, there has never been a “sufficiently real and immediate” threat of execution for the applicant. In Çınar v. Turkey (no. 17864/91, Commission decision of 5 September 1994, Decisions and Reports 79-B, p. 5), the applicant claimed that there had been a violation of Article 3 because his death sentence, which became definitive on 20 October 1987, was submitted to the Grand National Assembly for approval and the Grand National Assembly did not take any decision until 1991. He was therefore exposed to the death-row phenomenon. The Commission rejected this claim on the ground that the death penalty had not been executed in Turkey since 1984 and the risk of the penalty being implemented was illusory. We cannot accept that in the present case the risk of execution for the applicant was more real than that in Çınar. The applicant's political background did not increase the risk of execution, as is suggested in the judgment (paragraph 172). On the contrary, it made him less vulnerable because of the political consequences his execution would have had. The fact that there has been a quasi consensus among all political parties in Parliament not to execute confirms this view. This political consensus is evident from the fact that Parliament abolished the death penalty by Law no. 4771, which was passed with a large majority and published on 9 August 2002 (see paragraph 51 of the judgment). Furthermore, on 12 November 2003 Turkey ratified Protocol No. 6. For all these reasons, we conclude that there has been no violation of Article 3 on account of the death sentence imposed by the National Security Court. [1]1. At the date of the Chamber’s judgment of 12 March 2003. Protocol No. 6 has now been ratified by forty-four member States of the Council of Europe (including Turkey) and signed by two others, Monaco and Russia (see paragraph 58 above).

THIRD SECTION CASE OF CIOBANIUC v. ROMANIA (Application no. 13067/03) JUDGMENT STRASBOURG 16 February 2010 FINAL 16/05/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Ciobaniuc v. Romania, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Corneliu Bîrsan,Boštjan M. Zupančič,Alvina Gyulumyan,Egbert Myjer,Luis López Guerra,Ann Power, judges,and Santiago Quesada, Section Registrar, Having deliberated in private on 26 January 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 13067/03) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Ms Vasilica Ciobaniuc (“the applicant”), on 24 January 2003. 2. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu. 3. On 12 May 2006 the President of the Third 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 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1936 and lives in Iaşi. 5. In 1985, Apartment 8 situated in Constanţa at 17 Aleea Hortensiei, the property of the applicant and of her husband, was seized by the State under Decree no. 223/1974, following their decision to leave the country. No compensation was paid and no copy of the decision to seize the property was sent to them. The applicant's husband later died in 1998, the applicant being his only heir. 6. On 2 October 1991 and 15 September 1995 the applicant and her husband informed the Constanţa Town Council that they intended to recover their property, requesting the eviction of the tenants. 7. On 29 October 1996 the State sold that apartment to the then tenants under Law no. 112/1995. 8. On 18 August 1997 the applicant and her husband sought to have the seizure declared null and void, to recover ownership of Apartment 8 and to have the former tenants evicted; they also sought damages in respect of the furniture which had been in the apartment and which had allegedly been destroyed. 9. On 17 November 1997 the Constanţa Court of First Instance allowed the action in part and annulled the seizure as unlawful, but dismissed the claim for restitutio in integrum on the grounds that the apartment was in the possession of third parties who were not party to those proceedings. It also dismissed the claim for damages in respect to the furniture for lack of payment of stamp duty. Eventually, on 20 March 2000, the Constanţa Court of Appeal upheld that ruling in a final decision. 10. On 17 October 2001 the Constanţa Court of Appeal, by a final decision, dismissed an action by the applicant for recovery of possession of immovable property lodged against those who had bought the apartment. The court considered that when proceedings are brought by a former owner against those who have acquired ownership under Law no. 112/1995, preference is given to the protection of the good faith principle. Thus, the former tenants had made the purchase in good faith and had complied with the provisions of Law no. 112/1995. On 11 October 2002 the Prosecutor's Office attached to the Supreme Court of Justice informed the applicant that there were no reasons to lodge an application for review (recurs în anulare) against that final decision. 11. On 19 October 2001 the applicant sought to recover Apartment 8 under Law no. 10/2001 governing immovable property wrongfully seized by the State. On 16 May 2005 the Constanţa Town Council dismissed her request, since that apartment had been sold in accordance with Law no. 112/1995, but proposed compensation in the equivalent of 11,074 euros (EUR). Then the file was sent to the Constanţa Prefecture and subsequently to the Secretariat of the Central Commission for Compensation. On 28 May 2008 the Central Commission for Compensation decided to award the applicant 235,076.09 Romanian lei, the equivalent of EUR 64,025 according to the rate of exchange displayed on that day by the National Bank of Romania. According to the documents in the file, the applicant has neither contested that decision nor has she followed the administrative procedure provided under Law 247/2005, as amended by Government Emergency Ordinance no. 81/2007, for opting between cash compensation or shares in the fund Proprietatea. 12. On 14 February 2005 the Constanţa Court of Appeal, by a final decision, dismissed a request by the applicant to have the sale declared null and void, considering that the former tenants had made the purchase in good faith. II. RELEVANT DOMESTIC LAW 13. The relevant legal provisions and jurisprudence are described in the following judgments: Brumărescu v. Romania ([GC], no. 28342/95, §§ 31-33, ECHR 1999‑VII); Străin and Others v. Romania (no. 57001/00, §§ 19-26, ECHR 2005‑VII); Păduraru v. Romania (no. 63252/00, §§ 38-53, 1 December 2005); Tudor v. Romania (no. 29035/05, §§ 15-20, 17 January 2008); and Viaşu v. Romania (no. 75951/01, §§ 38-46, 9 December 2008). THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 14. The applicant alleged that the sale by the State of Apartment 8 to third parties entailed a breach of Article 1 of Protocol No. 1, which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 15. The Government considered that the application should be rejected as out of time, since the final decision for the purposes of Article 35 § 1 of the Convention was that of 17 October 2001 of the Constanţa Court of Appeal and the present application was lodged on 24 January 2003. 16. The applicant considered that the six-month time-limit should start on 11 October 2002, when her request for an extraordinary appeal was refused. 17. The Court notes that a similar objection by the Government was dismissed in the judgments in the cases of Todicescu v. Romania (no. 18419/02, §§ 15-16, 24 May 2007; see also Horia Jean Ionescu v. Romania, no. 11116/02, §§ 22-24, 31 May 2007); Ciobotea v. Romania (no. 31603/03, §§ 21-22, 25 October 2007); Capetan-Bacskai v. Romania (no. 10754/04, §§ 23-24, 25 October 2007); and Episcopia Română Unită cu Roma Oradea v. Romania (no. 26879/02, §§ 19-20, 7 February 2008), and finds no reason to depart from its conclusion in those cases. It therefore dismisses the Government's objection. 18. The Court concludes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 19. The Government reiterated the arguments they had previously submitted in similar cases. 20. The applicant disagreed with those arguments. 21. The Court reiterates that, according to its case-law, the sale of another's possessions by the State, even before the question of ownership has been finally settled by the courts, amounts to a deprivation of possessions. Such deprivation, in combination with a total lack of compensation, is contrary to Article 1 of Protocol No. 1 (see Străin and Others, cited above, §§ 39, 43 and 59, and Porteanu v. Romania, no. 4596/03, § 35, 16 February 2006). 22. Having examined all the material in its possession, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. The sale by the State of the applicant's possessions still prevents her from enjoying her right of property, as acknowledged by a final decision. The Court considers that such a situation amounts to a de facto deprivation of possessions and notes that it has continued for more than nine years, without any compensation being paid. 23. The Court observes that, to date, the Government have not demonstrated that the system of compensation set up in July 2005 by Law no. 247/2005 would allow the beneficiaries of this system to recover damages reflecting the commercial value of the possessions of which they were deprived, in accordance with a foreseeable procedure and timetable (see, among many others, Enyedi v. Romania, no. 32211/02, § 40, 2 June 2009, and Roman v. Romania, no. 30453/04, § 28, 7 July 2009). The Court recalls that the applicant made no response whatever to the administrative decision of 28 May 2008 of the Central Commission for Compensation (see paragraph 11 above). However, given the Court's findings as to the malfunctioning of the system of compensation, the applicant's situation has not been effectively redressed by this decision. 24. Having regard to its case-law on the subject cited above, the Court considers that in the instant case the deprivation of the applicant's possessions, together with the total lack of compensation, imposed on the applicant a disproportionate and excessive burden in breach of her right to the peaceful enjoyment of her possessions as guaranteed by Article 1 of Protocol No. 1. There has accordingly been a violation of Article 1 of Protocol No. 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 25. 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 26. In her observations of 9 March 2008 the applicant claimed 60,900 euros (EUR) in respect of pecuniary damage, representing the value of Apartment 8, on the basis of an expert report from September 2007. She further claimed EUR 9,000 for the goods which were in that apartment at the time it was seized and EUR 13,100 for the rent that she had paid on the place where she had been living for the last eleven years. In respect of non-pecuniary damage she sought EUR 6,000. 27. On 21 October 2009, in their comments on the applicant's claims for just satisfaction, the Government submitted that as far as the value of Apartment 8 was concerned the applicant was the beneficiary of an administrative decision of 28 May 2008, which had awarded her an amount equivalent to EUR 54,758, according to the rate of exchange displayed on 21 October 2009 by the National Bank of Romania. Since the applicant had neither contested that decision nor continued the administrative procedure, that amount was not to be brought up to date (see Naghi v. Romania, no. 31139/03, § 33, 21 July 2009). Were the Court to hold that the applicant had the right to receive in compensation the value established by the expert report from September 2007, the Government referred to their own expert report from August 2007 which had assessed the value of that apartment before VAT as EUR 47,112. Further, the Government contested the claim in respect of the rent as unsubstantiated and also considered that the applicant could not invoke a “possession” in respect of the goods existing in that apartment at the moment of the seizure. They also contested any causal link between the alleged violation and the alleged non-pecuniary damage and submitted that the finding of a violation would constitute in itself sufficient just satisfaction for any non-pecuniary damage which the applicant might have suffered. In any event, they considered that the amount claimed in this connection was too high. 28. The Court reiterates that a judgment in which it finds a breach imposes on the respondent State a legal obligation under the Convention to put an end to the breach and make reparation for its consequences. If the domestic law allows only partial reparation to be made, Article 41 of the Convention gives the Court the power to award compensation to the party injured by the act or omission that has led to the finding of a violation of the Convention. The Court enjoys some discretion in the exercise of that power, as the adjective “just” and the phrase “if necessary” attest. 29. The Court holds that the respondent State is to pay the applicant, in respect of pecuniary damage, an amount corresponding to the value of the property. In that connection, the Court notes that the applicant has not contested the amount established in compensation by the administrative decision of 28 May 2008 (see paragraph 11 above). Therefore, the Court considers the claim justified and, consequently, awards the amount she claimed for the real estate, namely EUR 60,900. 30. As regards the applicant's claim in respect of the goods existing in that apartment at the moment of the seizure, the Court notes that a claim in that respect was dismissed by the domestic courts for lack of payment of stamp duties (see paragraph 9 above) and also that a potential complaint in that respect was not raised before the communication of the present application. Therefore, it is not part of the case referred to the Court. However, the applicant has the opportunity to lodge a new application in respect of that complaint (see, mutatis mutandis, Dimitriu and Dumitrache v. Romania, no. 35823/03, § 24, 20 January 2009). 31. As regards the amount of money claimed by the applicant as the equivalent of the rent that she had paid, the Court considers it to be a claim in respect of loss of profit or any benefit from her possessions. However, the Court notes that the applicant did not submit any supporting documents to substantiate her claim. In the absence of any evidence, the Court will not speculate as to the loss of profit or any benefit and, therefore, will not make an award under this head (see Dragne and Others v. Romania (just satisfaction), no. 78047/01, § 18, 16 November 2006). 32. The Court considers that the serious interference with the applicant's right to the peaceful enjoyment of her possessions could not be compensated adequately by the simple finding of a violation of Article 1 of Protocol No. 1. Making an assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards her EUR 3,000 in respect of non-pecuniary damage. B. Costs and expenses 33. The applicant also claimed EUR 6,000 for costs and expenses incurred before the domestic courts, representing the fees for the lawyers, stamp duties, transportation from Iaşi to Constanţa and accommodation in Constanţa. She did not provide any supporting documents. 34. The Government contested the claim as unsubstantiated. 35. The Court reiterates that under Article 41 of the Convention it will reimburse only costs and expenses that are shown to have been actually and necessarily incurred and are reasonable as to quantum (see Arvelakis v. Greece, no. 41354/98, § 34, 12 April 2001). Furthermore, Rule 60 § 2 of the Rules of Court provides that itemised particulars of any claim made under Article 41 of the Convention must be submitted, together with the relevant supporting documents or vouchers, failing which the Court may reject the claim in whole or in part. 36. The Court notes that the applicant did not submit any supporting documents or particulars to substantiate her claim. Accordingly, the Court does not award any sum under this head. C. Default interest 37. 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 1. Declares the application admissible; 2. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 3. 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, the following amounts, plus any tax that may be chargeable to her, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 60,900 (sixty thousand nine hundred euros) in respect of pecuniary damage; (ii) EUR 3,000 (three thousand euros) in respect of non-pecuniary damage; (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; 4. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 16 February 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaJosep CasadevallRegistrarPresident

FIFTH SECTION CASE OF IRINA SMIRNOVA v. UKRAINE (Application no. 1870/05) JUDGMENT STRASBOURG 13 October 2016 FINAL 06/03/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Irina Smirnova v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Angelika Nußberger, President,Ganna Yudkivska,Khanlar Hajiyev,André Potocki,Faris Vehabović,Yonko Grozev,Carlo Ranzoni, judges,and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 20 September 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 1870/05) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mrs Irina Trofimovna Smirnova (“the applicant”), on 28 December 2004. 2. The applicant, who had been granted legal aid, was represented by Ms N. Kusner and Mr O. Tarakhkalo, lawyers practising in Donetsk and Kyiv respectively. The Ukrainian Government (“the Government”) were represented by their Agents, most recently Mr I. Lishchyna. 3. The applicant alleged, in particular, that the State authorities had failed to protect her physical and psychological integrity, home and private life from serious intrusions by private persons, who co-owned the flat in which she resided, and their guests and tenants. 4. On 14 December 2011 the President of the Fifth Section decided to give notice of the application to the Government and to invite them to comment on whether there had been a breach of Article 8 of the Convention in the applicant’s case. 5. On 19 September 2013 the President of the Fifth Section decided to request that the parties also comment on whether there had been a breach of Article 3 of the Convention in the applicant’s case. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1940 and lives in Donetsk. A. History of the applicant’s conflict with the co-owners of her flat 7. In the end of November 2001 the applicant was visited by two unfamiliar men, V.S. and A.N., who offered to buy half of the flat she lived in for 700 United States dollars (USD). It was a one-bedroom flat, measuring 43.3 square meters, recently privatised and acquired in equal shares by the applicant and her adult son, Y. The applicant refused to sell her half of the flat. According to her, the price offered was extraordinarily below the market value. In any event, she had no reason to sell the flat, which had been her long-established home for several decades. In response, V.S. and A.N. warned the applicant that she would regret her decision, because Y., (who was married and lived elsewhere), had offered the other half of the flat as a gift to V.S. If the applicant refused to sell her half for the price, which was offered to her, or to exchange it for a smaller flat on the outskirts of the city, V.S. would move into the flat and create intolerable living conditions for her. 8. Subsequently the applicant learned that on 18 December 2001 Y. had signed a notarised gift deed in which he transferred his title to half of the flat (which was not as divided into allocated parts of the whole) to V.S. 9. From November 2002 A.N., V.S. and their acquaintances started regularly visiting the applicant’s flat, demanding that she sell. According to the applicant, on numerous occasions they broke the locks, insulted and harassed her and caused damage to her property. Subsequently a part and then the entire of V.S.’s share in the flat was formally acquired by A.N. as a gift, whose value amounted to 5,602 Ukrainian hryvnias (UAH) according to the gift certificates. However, irrespective of this transfer, A.N. and V.S. continued to act in concordance in demanding the applicant move out and sell her share. 10. For instance, on 23 November 2002 A.N. and V.S. broke the locks on the entrance door when the applicant was away, entered the flat and, upon the applicant’s arrival, reiterated their demands that she sell her share. As the applicant protested against their presence in the flat and their overall conduct, a conflict emerged, in the course of which A.N. hit the applicant in the chest inflicting a bruise and causing soft tissue swelling. 11. On 26 November 2002 A.N., V.S. and several strangers broke into the applicant’s flat again. As they were irritated by the barking of the applicant’s dog, V.S. started kicking her and chased her out. Subsequently the applicant found her dog’s dead body in a garbage container. 12. Also on an unspecified date in November 2002 V.S. arrived in the flat after 11 p.m. (when the applicant was already asleep) and opened the balcony door, holding it open for some four hours notwithstanding the freezing temperature outside. In response to the applicant’s subsequent reprimands, he explained that he wished for her to catch a cold as she had been disagreeable. 13. On 15 December 2002, when the applicant’s daughter was visiting the applicant, V.S. arrived in the flat again. A conflict emerged, in the course of which V.S. hit the applicant on the head and stomach, inflicting concussion and blunt trauma of the abdominal wall. He also hit the applicant’s daughter on the head and other parts of the body, inflicting cerebral concussion and bruising of legs and arms. As a result of the conflict, the applicant and her daughter had to seek medical assistance for their injuries and the applicant received inpatient hospital treatment. 14. Subsequently V.S. and A.N. started installing in the flat from two to six strangers without the applicant’s consent. These tenants, mostly young males, behaved in a discourteous way. In particular, they organised loud parties; frivolously used, damaged and stole the applicant’s belongings; created insanitary conditions; carelessly used electricity, gas and appliances, frequently left the entrance door open, and ignored requests to contribute towards the maintenance charges on the flat. 15. On numerous occasions the applicant attempted to drive the tenants away or to call them to order. Her efforts resulted in conflicts, in the course of which she was harassed and intimidated. Her attempts to replace the locks on the entrance doors to prevent unauthorised entry into the flat resulted in them being broken and in the tenants, who frequently changed, moving in again, in spite of her discontent. As she was unable to withstand such living conditions and was afraid for her life and limb, the applicant effectively moved out, contending herself with odd living arrangements. However, she paid short visits to the flat regularly, to supervise the situation. 16. In the beginning of June 2003 V.S. drove his car onto the footpath, where the applicant was standing waiting for a bus, scaring and nearly hitting her. 17. On 11 July 2003 at about 9.20 a.m. V.S. again arrived in the flat, when the applicant was in it, and demanded that she surrender her share. A conflict emerged, in the course of which V.S. punched the applicant in the stomach, causing her physical pain. 18. On three further occasions (30 July 2004, 5 August and 1 December 2005) the applicant was severely beaten by V.S., twice accompanied by his acquaintance A.L. The applicant suffered physical pain and bruising. On 30 July 2005, in addition to that, she also sustained a second concussion, which necessitated inpatient treatment. 19. On various dates the applicant learned that A.N. and V.S. had also acquired ownership of shares in numerous other flats in Donetsk and that they had behaved similarly with the co-owners of these flats, inducing them to sell their shares on unfavourable terms. B. The applicant’s action for rescission of the gift deed (first set of civil proceedings) 20. On 16 October 2003 the Voroshylivsky district prosecutor instituted civil proceedings on the applicant’s behalf, seeking rescission of the gift deed between Y. and V.S. and the eviction of the latter on the grounds that the gift deed had been executed without the applicant’s consent. 21. On 12 November 2003 the Voroshylivsky District Court of Donetsk (hereafter “the Voroshylivsky Court”) allowed this claim, having found, in particular, that Article 113 of the Civil Code of Ukraine of 1963 did not authorise the transfer of title to a part of shared property, which had not been divided into allocated parts and that it also obliged co-owners of a shared property to seek the consent of their counterparts before carrying out transactions in it. 22. On 5 February 2004 the Donetsk Regional Court of Appeal (hereinafter “the Regional Court”) quashed this judgment following an appeal by the applicants’ opponent and dismissed the prosecutor’s claim, having found that, unlike in the case of selling part of a shared property, giving it as a gift to a third party did not require the co-owners’ consent. 23. On 10 August 2004 the Supreme Court of Ukraine dismissed the applicant’s and the prosecutor’s requests for leave to appeal in cassation against the Regional Court’s judgment. The judgment became final. C. The applicant’s action with a view to dispossessing V.S. and A.N. and rescinding their right of occupancy of the flat (second set of civil proceedings) 24. On 5 October 2004 the applicant instituted civil proceedings seeking the dispossession of V.S. (joined by A.N., when he acquired part of V.S.’s share and replaced by him, when he acquired the entire share), of his share in the flat, regard being had to his unlawful conduct towards her, the impossibility of joint use of the flat, and his refusal to pay his share of the maintenance costs. She further sought a judicial rescission of their right to occupy the flat and compensation for the costs she had borne on the flat with their shares. The defendants lodged a counterclaim, alleging, in particular, that the applicant had been interfering with their personal life and belongings, provoking conflicts, harassing them and creating intolerable living conditions, which made it impossible for them to fulfil their desire to settle in the flat. They sought damages from the applicant for this conduct and demanded that the flat be divided into allocated parts. 25. On 21 June 2005 the District Court allowed the applicant’s claim in part and dismissed her opponents’ counterclaim. In particular, referring to Article 365 of the new Civil Code of Ukraine of 2003, it ordered the dispossession of A.N. (by then the owner of half the flat) of his share against payment by the applicant of compensation in the amount of UAH 5,602. The court noted, in particular, that there was extensive evidence that the defendants had allowed numerous strangers to live in the flat; that the applicant had been harassed; and that the flat’s appliances and the applicant’s belongings had been misused and damaged. It further concluded that, regard being had to the flat’s size and layout, it was not possible for the co-owners to use it jointly in a harmonious manner or to have it reasonably divided into two independent halves for each of them to use separately. At the same time, A.N.’s dispossession in return for fair compensation would not put him at a substantial disadvantage, since he had another registered residence and predominantly used the disputed flat for subletting to other persons. The court next found that, since A.N. had received the flat as a gift, fair compensation would be the payment of the indicative price (UAH 5,602) declared by the parties as that share’s value in the latest gift deeds. Finally, the court found that A.N. and V.S. had no longer any right to occupy the flat and ordered partial reimbursement of the maintenance costs incurred by the applicant on the flat. 26. On 20 October 2005 the Regional Court, having reviewed the case on appeal by the applicant’s opponents, upheld the judgment with respect to the reimbursement of the costs borne on the flat by the applicant and the revocation of V.S.’s right to occupy it, as he no longer owned any share in the flat. It then quashed the ruling to dispossess A.N., having noted that, according to the expert assessment, the market value of the disputed flat had been appraised at UAH 147,756, which meant that value of half the flat had been UAH 73,878. The court further stated that the applicant’s claim for dispossession of A.N. and revocation of his right of occupancy had not been based on any legal provision. The relevant part of the judgment read as follows: “Neither the provisions of the Housing Code of Ukraine nor those of the Civil Code of Ukraine of 2003, which the applicant cites as the basis for her claims, nor the Property Law of Ukraine, envisage dispossession of the owner of his or her property and his or her eviction from a flat owned by him or her on the grounds cited by the applicant.” 27. The applicant appealed in cassation. She noted, in particular, that A.N. and V.S. had acquired shares in a number of Donetsk flats and had deliberately created intolerable living conditions for their co-owners in order to obtain the flats in their entirety on terms grossly unfavourable to the other co-owners. She further alleged that, having no other residence and being a victim of constant harassment, she had abandoned the flat and had been requesting refuge from various acquaintances. 28. On 2 December 2005 the district prosecutor also lodged a cassation appeal on the applicant’s behalf, in which he corroborated her submissions that the defendants had been harassing her, had been using the flat in bad faith and had forced the applicant, a senior lady, to leave the dwelling she had occupied for many years. He also alleged that the sum proposed by the applicant in compensation for the defendants’ share in the flat had been fair, as it had been equal to the flat’s value indicated in the gift deeds on the basis of which A.N. had received the disputed share. 29. On 11 January 2006 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal. 30. On 22 January 2006 it likewise rejected the prosecutor’s request for leave to appeal and the Regional Court’s judgment became final. D. The applicant’s complaints to the law-enforcement authorities and criminal proceedings against A.N., V.S. and A.L. 31. On numerous occasions between 2002 and 2007 the applicant complained to the Voroshylivsky district police in Donetsk (“the district police”) about various instances of verbal and physical harassment, damage to and taking of her property and attempts by V.S. and A.N. to extort her share in the flat. 32. On various dates police officers arrived in the applicant’s flat in response to her calls for help. They examined the situation, questioned the applicant and her opponents, and subsequently refused to institute criminal proceedings (in particular, 22 January, 7 February and 24 December 2002; 22 and 24 January, 22 February, 5 and 22 March, 15 July, 30 August, 18 September, 12, 16 and 24 October, 4, 15 and 19 November and 5 December 2003; 1 June, 3 and 9 August and 15 November 2004, 20 January, 23 July, 6 August, 19 November, 13 and 28 December 2005; and 4 and 31 March and 16 and 27 July 2006). In their refusals, the police noted that the prosecution of A.N., V.S. and their acquaintances was unwarranted since the relevant facts disclosed the existence of a chronic domestic conflict between lawful occupants of a flat, who attempted to engage the police in resolving their private disagreements. The hostilities took place inside the household and did not breach the public peace. Both parties had accused each other of provoking conflict and it was not evident, which party had in fact assaulted the other and which had acted out of self‑defence. In any event, during these conflicts the applicant had sustained no serious damage to her health and had not presented any evidence that her belongings had in fact been taken or damaged by the accused individuals. It was not possible to exclude that she had falsified the disappearance of her belongings in order to compromise the unwanted tenants. The police further recommended that the applicant resolve the dispute concerning the use of the flat in civil proceedings and assured her that “pre-emptive conversations” had been had with the purported offenders to foster respectful conduct on their part. On several occasions the police had issued official warnings to them, advising them of the impermissibility of antisocial behaviour. 33. On 30 January 2003 the prosecutor’s office quashed a decision not to institute criminal proceedings in connection with the injuries caused to the applicant on 15 December 2002. On several occasions the applicant enquired about the status of these proceedings and received no reply. In 2006 the applicant was informed that the investigation had been suspended. 34. On 19 October 2005 the head of the district police instructed his officers to place the applicant’s flat on the police register for frequent visits with a view to preventing any offences and infringements of applicable law. He noted, in particular, that the investigations had confirmed the applicant’s allegations concerning A.N.’s and V.S.’s disruptive conduct. In particular, it had been established that they had been allowing numerous tenants to live in the co-owned flat, who had brought it into a decrepit and insanitary state. The persons who had been occupying the flat had also taken the applicant’s personal belongings without her authorisation and had used her furniture, equipment and appliances in a careless manner, as a result of which these objects were deteriorating. Moreover, these persons had interfered with the applicant’s ability to access the flat by changing the locks and thus effectively precluding her from living there. He also acknowledged that numerous pre-emptive conversations and warnings given by the police had not brought about any improvements. 35. On several other occasions (in particular, 28 February 2006, 4 September 2006, 19 February 2007 and 6 March 2007) the Ministry of the Interior in Donetsk acknowledged, in response to the applicant’s further complaints, that her allegations concerning A.N.’s and his associates’ interference with her home had some basis. They further assured the applicant that her address had been placed on the police register for frequent visits. 36. On 18 July 2006 the applicant lodged a private criminal complaint against V.S., A.N. and A.L. with the Voroshylivsky Court. Relying on Articles 125 and 126 of the Criminal Code of Ukraine, she alleged that the defendants had systematically beaten and verbally harassed her. In this respect the applicant referred to the incidents of 23 November and 15 December 2002, 30 July 2004 and 5 August 2005 (see paragraphs 10, 13 and 18 above). She also submitted that, in her view, these incidents had to be approached not as isolated instances of ill-treatment, but as episodes of systematic and premeditated criminal conduct by an organised criminal association functioning with a view to extorting flats from Donetsk residents. She submitted that the same individuals had engaged in similar conduct vis‑à-vis a number of other co-owners of properties in the city. Accordingly, she requested the District Court’s assistance in transmitting her complaints to the public law-enforcement authorities with a view to instituting criminal proceedings concerning extortion and coercion. 37. On various dates five other residents of Donetsk joined the proceedings, alleging that the same defendants had acquired shares in their flats and had been pressurising and terrorising them with a view to extorting the remaining shares. 38. On 19 December 2006 Judge M. of the Voroshylivsky Court decided that the applicant’s and other complainants’ allegations disclosed an appearance that serious crimes, warranting institution of public criminal proceedings, had been committed. Accordingly, the judge instituted criminal proceedings on suspicion of fraud, extortion, coercion, circumvention of the law and several other crimes, and transferred the case to the Donetsk regional prosecutor for investigation. 39. On 24 January 2007 the prosecutor’s office appealed against this decision, alleging that applicable law did not authorise judges to institute public criminal proceedings in the above circumstances. 40. On 27 March 2007 the Regional Court upheld the prosecutor’s office’s appeal and returned the case to the Voroshylivsky Court to be examined by another judge with respect to the complaints which could be addressed in private prosecution proceedings. 41. Subsequently (23 August 2007) Judge P. of the Voroshylivsky Court returned the applicant’s and other complainants’ submissions without examination. She found that the injured parties had failed to comply with the rules on territorial jurisdiction and with other unspecified procedural requirements. 42. On 26 July 2007 the regional police instituted criminal proceedings in respect of a complaint about extortion lodged by a certain A.C., who had allegedly been forced to abandon her flat on account of the intolerable living conditions created by the co-owners of her flat. 43. On 15 August 2007 the police joined the applicant’s complaints concerning extortion to the aforementioned criminal proceedings. 44. On the same date A.N., V.S. and A.L. were arrested and placed in custody. 45. On various further dates complaints by eleven other individuals relating to the same persons’ misconduct were joined to the proceedings. 46. On 29 December 2007 deputy head of the regional prosecutor’s office signed the bill of indictment in respect of A.N., V.S. and A.L. charging them, in particular, under Article 189 § 4 of the Criminal Code, with extorting property in an organised group and transferring the case to the Kyivskiy District Court of Donetsk (hereafter “the Kyivskiy Court”) for trial. 47. On various dates in 2008 the defendants were released from custody pending trial. 48. On 24 May 2011 the Kyivskiy Court acquitted all the defendants of the charges under Article 189 of the Criminal Code. It noted, in particular, as follows: “... The court comes to a conclusion that the basis of the present criminal proceedings is the existence of a private-law dispute between the defendants and the injured parties concerning the use of shared property, which the injured parties demand to resolve by way of criminal proceedings in view of their extremely antagonistic relationship with the defendants.” 49. On 27 February 2012 the Regional Court quashed this verdict on appeal by the prosecution and the injured parties and remitted the case for retrial. 50. On 17 April 2012 the defendants were rearrested and placed in custody. 51. On 12 October 2012 the Kyivskiy Court found that all the defendants were guilty of extortion under Article 189 § 4 and sentenced them to eleven, ten and eight years’ imprisonment respectively. It also ordered the confiscation of all their personal property. The court found, in particular, that the case-file contained sufficient evidence that the episodes of the applicant’s harassment (listed in paragraphs 10, 12-13 and 16‑18 above) had indeed taken place. It also awarded the applicant UAH 35,273.47 in pecuniary and UAH 30,000 in non-pecuniary damage to be paid jointly and separately by the defendants. 52. On 6 March 2013, following an appeal by the defendants, the Regional Court upheld this verdict on appeal concerning all points, except one episode unrelated to the applicant’s case. 53. On 18 September 2014 the Higher Specialised Civil and Criminal Court rejected the cassation appeals lodged by A.N. and V.S. II. RELEVANT DOMESTIC LAW A. Constitution of Ukraine 54. The relevant provisions of the Constitution of Ukraine (1996) read as follows: Article 28 “Everyone has the right to respect for his or her dignity. No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity ...” Article 30 “Everyone is guaranteed the inviolability of his or her dwelling place. Entry into a dwelling place or other possessions of a person, and the examination or search thereof, shall not be permitted, other than pursuant to a substantiated court decision ...” Article 32 “No one shall be subject to interference in his or her personal and family life, except in cases envisaged by the Constitution of Ukraine.” Article 41 “Everyone has the right to own, use and dispose of his or her property ... The right of private property is acquired by the procedure determined by law ... The use of property shall not cause harm to the rights, freedoms and dignity of citizens, the interests of society, aggravate the ecological situation and the natural qualities of land.” B. Civil Code of Ukraine of 1963 (repealed with effect from 1 January 2004) 55. Relevant provisions of the Civil Code of Ukraine in force at the time when the applicant brought the first set of civil proceedings read as follows: Article 113. Right of Divided Co-Ownership “Possession, use and disposal of property held in divided co-ownership shall be carried out with the consent of all the co-owners, and, in the absence of consensus, the dispute shall be decided by court. ... Every co-owner ... according to the size of his or her share [in the right of joint ownership] shall be entitled to proceeds from joint property, shall be liable before third parties for obligations regarding the joint property and shall pay their part of various taxes and dues, as well as in maintenance and upkeep expenses concerning the joint property. Every co-owner of a joint divided property shall have the right to transfer his share [in the right of] the joint ownership to a third person for or without remuneration.” Article 114. Right of first refusal in buying a share in the right of divided co-ownership “When a share in the right of joint [divided] ownership is proposed for sale to a third party, the remaining co-owners shall have the right of first refusal of the share at the asking price ... The seller of the share is obliged to inform the remaining co-owners in writing of his or her intent to sell his or her share to a third party, indicating the price and other terms of the sale ... When the sale of a share is effected in breach of the right of first refusal, another co-owner ... may apply to court demanding transfer of the rights and obligations of the buyer to him or her.” C. Civil Code of Ukraine of 2003 56. Relevant provisions of the new Civil Code of Ukraine of 2003 read as follows: Article 358. Exercise of the right of divided co-ownership “1. The right of divided co-ownership shall be exercised by the co-owners on a consensual basis. 2. The co-owners may enter into an agreement regarding the rules on possession and the use of their property held in divided co-ownership. 3. Every co-owner shall have the right to be provided with a share of the co-owned object corresponding to his or her share in a divided co-ownership. Where this is impossible, he or she may demand relevant pecuniary compensation from other co-owners who possess and use the co-owned object.” Article 362. Right of first refusal in buying a share in the right of divided co-ownership “1. Where a share of divided co-ownership is to be sold, a co-owner shall have the right of first refusal at the asking price for the sale, and on other equal conditions, except where the sale is effected via a public auction ...” Article 365. Termination of title to a share in joint ownership on the demand of other co-owners “1. Title to a share in joint ownership may be terminated upon a court decision on the basis of a legal action by other co-owners in the event that: 1) the share is insignificant and cannot be allocated as a divisible part of the whole; 2) the property is indivisible; 3) joint possession and use of the property is impossible; 4) such termination will not cause significant harm to the interests of the co-owner and members of his family. 2. The court shall decide on the termination of a person’s title to a share in joint ownership on condition of advance deposit by the plaintiff of the value of this share with the court’s deposit account.” Article 386. Basic provisions concerning protecting the right of ownership “1. A State shall ensure equal protection of all subjects of the right of ownership. 2. An owner who reasonably foresees a possibility of a breach of his or her right by another person, may apply to court to obtain an injunction against actions, which may breach his or her right, or to obtain execution of certain actions for the prevention of such a breach. An owner whose rights have been breached, shall be entitled to reimbursement of the pecuniary and moral damage sustained by him or her.” Article 391. Protection of the right of ownership from breaches other than deprivation of possession “1. The owner of property shall have the right to demand cessation of interference with exercising his or her rights of use and disposal of his or her own property.” D. Criminal Code of Ukraine 57. The relevant provisions of the Criminal Code of Ukraine (2003) as worded in the material time read as follows: Article 125. Intentional minor physical injury “1. An intentional minor physical injury shall be punished by a fine ...; 2. An intentional minor physical injury resulting in a short-term health disorder or insignificant loss of capability to work shall be punished by public works ...” Article 126. Battery and torment “1. Intentional striking; beating or commitment of other violent acts, which caused physical pain and did not result in physical injuries shall be punished by a fine ... 2. The same acts, which constitute torments by their nature, committed by a group of people or with a purpose to terrorise the injured party or his or her close friends or relatives shall be punished by restriction of liberty ...” Article 189. Extortion “1. A demand to transfer the property of another ... by threatening to commit a violent act in respect of the victim or his or her relatives, restrict rights, freedoms ... of these persons, damage or destroy their property, ... shall be punished by restriction of liberty ...; 4. Extortion resulting in particularly grave pecuniary damage or committed by an organised group or accompanied by infliction of grave physical injury ... shall be punished by imprisonment from seven to twelve years and confiscation of property.” III. RELEVANT COUNCIL OF EUROPE DOCUMENTS 58. In its Recommendation Rec(2002)5 of 30 April 2002 on the protection of women against violence, the Committee of Ministers of the Council of Europe stated, inter alia, that member States should introduce, develop and/or improve where necessary national policies against violence based on maximum safety and protection of victims, support and assistance, adjustment of the criminal and civil law, raising of public awareness, training for professionals confronted with violence against women and prevention. 59. The Recommendation also stated that member States should ensure that all victims of violence are able to institute proceedings, make provisions to ensure that criminal proceedings can be initiated by the public prosecutor, encourage prosecutors to regard violence against women as an aggravating or decisive factor in deciding whether or not to prosecute in the public interest, and ensure where necessary that measures are taken to protect victims effectively against threats and possible acts of revenge. THE LAW I. SCOPE OF THE CASE 60. The Court notes that the applicant raised several new complaints in her reply to the Government’s observations of 10 April 2012 on the admissibility and merits of this case. In particular, she additionally complained, under Article 6 of the Convention, that the length of proceedings in her case had been unreasonable, and referred to Article 13 of the Convention and Article 1 of Protocol No. 1 to the Convention in respect of the facts of the present case. 61. In the Court’s view, the applicant’s new complaints are not an elaboration of her original complaints to the Court on which the parties had commented before they were raised. The Court considers, therefore, that it is not appropriate to take up these matters in the context of the present case (see, in particular, Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005). II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 62. The applicant complained that for an extended period of time the State authorities had failed to protect her from systematic inhuman and degrading treatment, that is, violence and verbal harassment by the co‑owners of her flat, and their guests and tenants. She relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 63. The Government alleged that the available domestic remedies in respect of the above complaint had not been exhausted when their observations had been lodged (23 December 2013). First of all, at that time the criminal proceedings against the co-owners of the applicant’s flat, instituted in 2007, had been still pending at the material time; thus it had been premature to prejudge their outcome. Secondly, had the applicant been unsatisfied with the manner in which the law-enforcement authorities had conducted these proceedings or generally responded to her complaints, it had been open for her to lodge a complaint against them seeking damages for delayed and ineffective investigation. Finally, it had always been open to the applicant to institute private criminal prosecution proceedings to seek punishment of the alleged offenders for the episodes of violent behaviour, in particular, under Articles 125 and 126 of the Criminal Code. She had not done so until July 2006, and even then she had failed to pursue her claim. 64. The applicant disagreed. She submitted, in particular, that the public criminal proceedings against the alleged offenders had been instituted with undue delay and had been unreasonably protracted and thus ineffective. As regards the other remedies mentioned by the Government, they were prima facie ineffective in her case. In particular, a private criminal action was incapable of redressing the situation of continuous and systematic harassment. At best, it could result in insignificant penalties for isolated incidents of physical violence. In any event, the applicant had tried this remedy in 2006, and her complaint had been rejected on formal procedural grounds more than a year after it had been accepted for examination. By that time the public criminal proceedings against the principal offenders had been instituted. In the applicant’s view, these proceedings could reasonably have led to incorporation and proper qualification of the entirety of her complaints. In this situation it had become pointless for the applicant to pursue a separate private action. Lastly, as regards the civil claim against the law-enforcement authorities, the Government had not shown how this remedy would have operated in practice and how it would have been capable of speeding up the resolution of the applicant’s systematic problem. 65. The Court notes that, as regards the first objection raised by the Government, on 18 September 2014 the final decision was taken in the criminal proceedings against A.N., V.S. and A.L. Accordingly, it considers that the Government’s objection that the applicant’s complaint had been premature is no longer valid (see Kirpichenko v. Ukraine, no. 38833/03, § 63, 2 April 2015). 66. As regards the other objections, they are closely linked to the substance of the applicant’s complaint under Article 3 of the Convention and must therefore be joined to the merits. 67. The Court notes that otherwise 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 68. The applicant submitted that for a number of years starting from November 2001 she had lived in a continuous situation of harassment from the co-owners of her flat, and their guests and tenants. In the meantime, for a very long period of time, the authorities had been “dissecting” this continuous situation into isolated trivial conflicts and had refused to see the underlying structural problem. While eventually the criminal proceedings had been initiated and the applicant’s submissions had been adequately incorporated in the body of the evidence against the principal offenders, the delay in instituting these proceedings and their subsequent length had rendered them ineffective. 69. The Government acknowledged that the applicant, a retired single woman, was a vulnerable person, and that the State had a positive duty to protect her from ill-treatment by her flat co-owners and their guests and tenants. Further, they argued that this duty had been duly discharged in the applicant’s case. In particular, the initial reluctance of the police to institute criminal proceedings against the purported offenders was understandable and justified: it had not been easy to distinguish the applicant’s case from a trivial domestic dispute. The co-owners of the applicant’s flat and their guests and tenants had a legal right to be in that flat. Both sides had accused each other of provoking the conflicts and creating intolerable living conditions. As the time lapsed, it had become obvious that the situation had been more complicated. Accordingly, criminal proceedings had been instituted and the applicant’s offenders had been sentenced to significant prison terms. It had also always been open to the applicant under the law to appeal in court against the decisions not to institute criminal proceedings against the offenders as well as to prosecute them in private criminal actions for the particular incidents of ill-treatment. The fact that she had not pursued these avenues cannot be held against the State. 70. The Court reiterates that the obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to put in place effective criminal-law provisions to deter the commission of offences against personal integrity, backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. This requirement extends to ill-treatment administered by private individuals (see, among other authorities, D.F. v. Latvia, no. 11160/07, § 83, 29 October 2013 and Valiulienė v. Lithuania, no. 33234/07, § 75, 26 March 2013). For this positive obligation to arise, it must be established that the ill-treatment complained of reached the threshold of severity proscribed under Article 3 (see B.V. and Others v. Croatia (dec.), no. 38435/13, §§ 152-53, 15 December 2015) or that the authorities knew or ought to have known at the time of the existence of a real and immediate risk of such ill-treatment (see Đorđević v. Croatia, no. 41526/10, § 139, ECHR 2012). 71. The State authorities may not be expected to set in motion the criminal-law machinery in every case where neighbours, household members or other individuals engage in trivial disputes and seek to settle an ongoing personal conflict by involving the criminal justice authorities (see B.V. and Others, cited above, §§ 153, 155-58). On the other hand, it is important that measures of effective protection against domestic violence and other types of harassment are put in place for vulnerable persons, including reasonable steps to prevent likely ill-treatment (see Đurđević v. Croatia, no. 52442/09, § 102, ECHR 2011 (extracts)). Where an individual makes a credible assertion of having been subjected to repeated acts of domestic violence or other types of harassment, however trivial the isolated incidents might be, it falls on the domestic authorities to assess the situation in its entirety, including the risk that similar incidents would continue. This assessment should, above all, take due account of the psychological effect that the risk of repeated harassment, intimidation and violence may have on the victim’s everyday life (see Valiulienė, cited above, §§ 68-69; Đorđević, cited above, §§ 90-93; and M. and M. v. Croatia, no. 10161/13, §§ 141-42, ECHR 2015 (extracts)). Where it is established that a particular individual has been systematically targeted and future abuse is likely to follow, apart from responses to specific incidents, the authorities may be called upon to implement an appropriate action of a general nature to combat the underlying problem (see Đorđević, cited above, §§ 147-49). 72. Turning to the facts of the present case, the Court notes the repeated and premeditated nature of the verbal and physical assaults, to which a group of younger and stronger men was subjecting the applicant, a retired single woman, for several years. While some episodes complained of, taken in isolation, could qualify as trivial domestic disputes between lawful flat occupants, other instances of violence, resulting in injuries (see paragraphs 10, 13 and 18 above), were very serious in and of themselves. As the incidents regularly repeated over a period of time, they must be viewed as a continuing situation, which is an aggravating circumstance (see Valiulienė, cited above, § 68). It also follows from the case file that repeated physical and verbal attacks caused the applicant profound mental suffering, distress and constant fear for her life and limb. This suffering was aggravated in view that violence and harassment occurred in the privacy of the applicant’s home, which prevented any outside help. 73. Regard being had to the repeated and premeditated nature of verbal attacks coupled with incidents of physical violence by a group of men against a single senior woman, the Court considers that the treatment, to which the applicant was subjected, reached the threshold of severity falling within the ambit of Article 3 of the Convention. It further finds that this treatment engaged the State’s positive duty under Article 3 of the Convention to put in motion the protective legislative and administrative framework. 74. It follows from the case file that eventually the applicant’s principal miscreants were publicly prosecuted and sentenced to significant prison terms. In addition to that, the judicial authorities ordered confiscation of their property. It is notable that the charges against the applicant’s aggressors were qualified in law as extortion rather than harassment or a similar offence. However, it appears from the domestic judgments that violent conduct vis-à-vis the applicant was taken into account in the courts’ analysis and that the measures adopted have effectively shielded her from the risk of sharing the flat with her former aggressors or their acquaintances in future. Nevertheless, assuming that the charges against the applicant’s aggressors have adequately addressed her complaints concerning their violent conduct and systematic harassment, the Court notes that it took the State authorities over twelve years to resolve the matter. 75. In view of this, the Court reiterates that for the purposes of Article 3, the protective measures should allow the authorities to respond as a matter of particular urgency in a manner proportionate to the perceived risk faced by the person concerned (see D.F., cited above, §§ 91 and 95). Where a situation warrants institution of criminal proceedings, these proceedings as a whole, including the trial stage, must satisfy the requirements of Article 3 of the Convention and allow for the examination of the merits of the case within a reasonable time (see, for example, M. and M., cited above, §§ 147‑152). 76. The Court accepts that at the early stages of the confrontation between the applicant and her flat co-owners the domestic authorities might have experienced certain difficulties in qualifying the situation in law. However, it has not been presented with a plausible explanation, which could justify the entire delay of over twelve-years. 77. As regards a possibility to initiate a private prosecution under Articles 125 and 126 of the Criminal Code (cited in paragraph 57 above) or to institute civil proceedings against the law-enforcement authorities for inaction, the Court reiterates that the crux of the applicant’s complaint was her systematic harassment. In the meantime, the national authorities, although aware of that situation, failed to take appropriate measures to punish the offenders and prevent further assaults and insults. Thus, the situation called for a swift intervention by the public officials. The Government have not shown that either of the aforementioned remedies could lead to such an intervention and effective resolution of the underlying systemic problem. 78. In these circumstances the Court dismisses the Government’s objection as to the non-exhaustion of domestic remedies previously joined to the merits and finds that the respondent State failed in discharging its positive duty under Article 3 of the Convention to protect the applicant from repeated verbal harassment and physical violence by the co-owners of her flat and their acquaintances on account of extreme delays in instituting and conducting public criminal proceedings against the co-owners of the applicant’s flat. 79. There has accordingly been a violation of Article 3 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 80. The applicant also complained that the State authorities had failed to protect her home and private life from unwanted intrusion by strangers. She relied on Article 8 of the Convention in this respect. The provision in question, insofar as relevant, reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. ...” A. Admissibility 81. The Government alleged that the available domestic remedies in respect of the above complaint had also not been exhausted. In so far as the applicant’s complaint may have been related to the incidents of violent and abusive conduct by the co-owners of her flat and their guests and tenants, the Government adduced the arguments similar to those discussed above in respect of Article 3. 82. As regards the more trivial side of the conflict (that is to say, disagreements concerning the manner in which the premises and household appliances had to be used) – in the Government’s view, the applicant had never tried to use the numerous civil-law remedies available for settling such conflicts. These remedies had included a claim for pecuniary and non-pecuniary damages, a demand to cease and desist from interfering with exercising the applicant’s right to use her property, or an action for establishing the rules of use of an object of joint ownership (see the relevant provisions of Domestic Law in paragraph 56 above). 83. In the Government’s view, the applicant had not used any of these remedies, because she had not been genuinely interested in resolving the dispute and achieving harmonious relations with her flat co-owners. Her only wish had been to gain the entire flat for herself. This option had also been possible under domestic law under Article 365 of the Civil Code (see paragraph 56 above). However, from this point of view the State’s duty had not been to protect the applicant’s home from unwanted intrusions, but to ensure equal protection of the intersecting property interests of two private parties. The applicant had tried to use this remedy, however, as she had wanted to pay a symbolic, insignificant sum in compensation for her co‑owners’ share, the judicial authorities could not be reproached for rejecting this proposal. It had always been open to the applicant to renegotiate dispossession of her flat co-owners on more reasonable conditions. 84. The applicant disagreed. She submitted that the one-bedroom flat, in which she had resided, was designed as a one-family residence. It had not been possible to divide it into two separate dwellings or somehow establish two separate households in it, enabling a senior lady to cohabit with unrelated young males in a sensible and harmonious manner. In any event, A.N. and V.S. had not intended to cohabit with the applicant. They had acquired a share in her flat with an obvious criminal intent: to extort the remaining share under grossly unfavourable terms by terrorising the applicant and creating intolerable living conditions. In this situation there could not have been any fair negotiation and balancing of private interests; only a criminal-law remedy would have been appropriate. The applicant had made an honest attempt to redeem her co-owners’ share in the flat via civil court proceedings. She agreed that the price she had offered had been below the price, which could be obtained for it, if the flat had been sold in its entirety, free from any occupation or other encumbrances. However, in her view, a virtual share in an indivisible one-bedroom flat occupied by residents would have had no market value. In any event, the applicant’s opponents, according to the documents, had received their share in her flat free of charge, except the acquisition taxes calculated on the basis of the nominative value indicated in the gift deed. In these circumstances, payment of a higher compensation – onerous for a retired pensioner – would have amounted to unjustified enrichment for her antagonists. 85. The Court considers that the Government’s objection is closely linked to the substance of the applicants’ complaints under Article 8 of the Convention and that it must therefore be joined to the merits. 86. It notes that otherwise 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 submissions by the parties 87. The applicant alleged that the arrival of uninvited strangers in her flat constituted a gross intrusion into her home and private life. This was more so as the new cohabitants had refused to use the flat sensibly and had harassed and terrorised the applicant. For years all the applicant’s attempts to resolve the matter either by negotiation, civil proceedings or appeals to law-enforcement authorities had been futile and, unable to tolerate her co‑habitants, she had to seek refuge elsewhere and had found herself practically homeless. 88. The Government submitted that the respondent State had properly discharged its positive duties under Article 8 vis-à-vis the applicant, as there had been an appropriate legal and administrative framework in place to protect her home and private life from unwelcome intrusions. Among all other instruments, Article 365 of the Civil Code provided the applicant with a possibility to dispossess her flat co-owners of their share in the flat on the ground that her co-habitation with them was intolerable. However, it was important in this context that V.S. and subsequently A.N. had lawfully acquired their shares in the disputed flat. Accordingly, they had been entitled to possess, use and dispose of them on a par with the applicant. In these circumstances the applicant had to pay market-value compensation in order to dispossess them, and she did not want to do so. She could not expect the domestic law to give her the tools to obtain exclusive right to reside in the flat by herself without having paid fair compensation to its other co-owners. The State authorities could also not be held responsible for the applicant’s failure to use the other, softer legal tools mentioned in paragraph 82 above, which could help her negotiate fair terms of cohabitation in the flat with its co-owners. 2. The Court’s assessment 89. The Court notes that, in so far as the applicant’s complaint under Article 8 may relate to the acts of harassment and violence, it falls within the ambit of Article 8 (see, for example, Hajduová v. Slovakia, § 46, 30 November 2010; Sandra Janković, cited above, § 45; Remetin, cited above, § 90; and B.V. and Others, cited above, §§ 149-54). However, as the Court has already examined the applicant’s relevant submissions under Article 3 above, it is not necessary to address them also under Article 8 of the Convention (see, for example, Đorđević, cited above, § 93, and M. and M. cited above, § 143). 90. At the same time, the Court notes that there are other aspects of the applicant’s complaint under Article 8, which have not yet been examined by it. In particular, it follows from the applicant’s submissions that, in addition to her complaints about violence and harassment, she also complains (a) of the very fact that she was obliged to tolerate the presence inside her home of persons foreign to her household; and (b) of their disagreeable, but essentially non-criminal conduct (notably, discourteous use of the flat and the applicant’s belongings, spoliation of the flat amenities, noise and other nuisances, and so forth). 91. The Court considers that the criminal proceedings, in the course of which V.S. and A.N. were charged with extortion, eventually redressed these aspects of the applicant’s complaint. In particular, as follows from the Kyivskiy Court’s verdict of 12 October 2012, A.N. and V.S. were ordered to pay compensation to the applicant for pecuniary and non-pecuniary damage. In addition, they were also divested of their share in the flat as a result of the property confiscation order. However, regard being had to the extreme delays in the institution and conduct of these proceedings, which have already been discussed in paragraphs 76 and 78 above, their effectiveness in the applicant’s case was significantly compromised. Accordingly, the applicant’s rights under Article 8 of the Convention were set at naught for a very considerable period of time (see Surugiu, cited above, §§ 60-67, and Udovičić, cited above, §§ 158-59). 92. At the same time, the Court reiterates that there is no absolute right under the Convention to obtain the prosecution or conviction of any particular person (see Söderman v. Sweden [GC], no. 5786/08, § 83, ECHR 2013). While a criminal-law remedy may be necessary in cases relating to particularly serious encroachments upon the person’s physical or psychological integrity, in respect of less serious intrusions into the sphere protected by Article 8 the relevant obligation on the member States may be discharged by putting in place other, in particular, civil-law instruments, which, where necessary, should include such procedural remedies as the granting of an injunction (ibid, § 85). In the light of these observations, the Court must proceed to examine whether, in the specific circumstances of the case before it, the respondent State had an adequate non-criminal legal framework providing the applicant with acceptable level of protection against the intrusions on her privacy and enjoyment of her home (see, mutatis mutandis, ibid, § 91). 93. The Court reiterates that guarantees afforded by Article 8, and, in particular, the right to respect for home, among them, are of central importance to an individual’s identity, self-determination, physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community (see, in particular, Connors, cited above, § 82, and Kryvitska and Kryvitskyy v. Ukraine, no. 30856/03, § 44, 2 December 2010). A home is usually the place, where an individual is supposed to feel safe (see Söderman, cited above, § 117) and sheltered from unwanted attention and intrusions. This concerns not only physical intrusions, such as unauthorised entries, but various nuisances, such as noise or smells and other forms of interference which preclude the inhabitants from quiet, undisturbed enjoyment of the amenities of their abode (see Udovičić, cited above, § 136). 94. In light of these considerations, the Court finds that sharing one’s home with uninvited strangers, regardless of how sensibly they behave, creates very important implications for a person’s privacy and other interests protected by Article 8. Accordingly, where a member State adopts a legal framework obliging a private individual, for one reason or another, to share his or her home with persons foreign to his or her household, it must put in place thorough regulations and necessary procedural safeguards to enable all the parties concerned to protect their Convention interests. 95. It appears that in the present case applicable law did not afford to the applicant any meaningful forum in which she could object against cohabitation with A.N., V.S. and their acquaintances on the ground that such cohabitation created disproportionate consequences for her rights guaranteed by Article 8 of the Convention (see, mutatis mutandis, McCann v. the United Kingdom, no. 19009/04, §§ 49-50 and 55, ECHR 2008; Ćosić v. Croatia, no. 28261/06, § 21-23, 15 January 2009; and B. v. the Republic of Moldova, no. 61382/09, § 74, 16 July 2013) and obtain appropriate and expeditious protection against unwanted intrusions into her personal space and home, including, if necessary, by way of an injunction order (see, mutatis mutandis, Söderman, § 85). 96. In particular, it is notable that initially the flat was designed to be occupied and was occupied by a single family (the applicant’s family), then by the applicant alone. The legal arrangement, whereby V.S., a person outside the applicant’s family, received an entitlement to move into the flat, was created without the applicant’s consent having been sought. This arrangement, found to be lawful by the domestic courts (see paragraphs 22‑23 above) also automatically gave V.S. the right to invite other persons to live there and to bestow his share in the flat without the applicant’s consent on other third parties. Accordingly, the applicant lost any control over how many persons would obtain the right to occupy her flat or over the choice of these persons. Thus, her one-bedroom flat was virtually converted into a hostel without the applicant having any means of objecting to such a change. 97. Similarly, after the aforementioned arrangement was created, the applicant had no legal remedy enabling her to argue that co-habitation with A.N., V.S. and their acquaintances had resulted in disproportionate burden for her ability to enjoy the rights guaranteed under Article 8. The Court is prepared to accept that the civil remedies, mentioned by the Government in paragraph 82 above, such as an action for damages, a demand to cease and desist from interfering with enjoyment of another’s possessions, or an action for establishing the rules of use of an object of shared property could be helpful in a situation where lawful cohabitants need to settle specific disagreements concerning the use of a common flat. However, it follows from the case-file that the situation in the present case was much less trivial. Notably, the applicant’s complaint was that her flat was not suitable for use by more than one family and that V.S. and A.N., had entered it by breaking in and taking possession of it against her will. The Government have not shown how the aforementioned remedies could address and redress the core of the above complaint. 98. The Court notes that the Government have also referred in their observations to Article 365 of the Civil Code, as a legal instrument, on the basis of which the cohabitation arrangement in the applicant’s case could be terminated by a competent court. This Article (see the text in paragraph 56 above) established a possibility of dispossessing a co-owner of his/her share in an object of indivisible property, if other co-owners considered that joint use of this object was not possible. However, it follows from the text of this provision that it could be used only against the co-owners, whose share was “insignificant”. More importantly, it has not been shown by the Government that this remedy, apparently geared towards resolving the ownership disputes, could grant prompt relief for the applicant’s complaint concerning forced entry into the flat, which was her established “home” previously possessed by her family for years, against the applicant’s will and despite that it was not designed to accommodate more than one family. In light of the above, the Court fails to see how this procedure could have provided an expeditious and appropriate remedy for the applicant’s particular complaint concerning intrusion by strangers into her home and private space. Accordingly, the Court is not convinced that Article 365 of the Civil Code could provide any relief to the applicant, regardless of any price-related or other arguments. 99. It follows that neither the case-file material, nor the Government’s observations demonstrate that the applicant had any meaningful forum available to her for raising an argument that a duty to share her home with V.S., A.N., and their acquaintances disproportionately affected her private life and enjoyment of her home. Accordingly, the Court considers that the domestic legal framework did not provide the applicant with requisite procedural safeguards for protecting her right to respect for home and private life under Article 8 of the Convention. 100. Accordingly, the Court dismisses the Government’s objection concerning non-exhaustion raised in paragraphs 82-83 above. 101. Regard being had to the considerations presented in paragraphs 91 and 99 above, the Court finds that there has been a breach of Article 8 of the Convention. IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 102. Lastly, the applicant also complained, under Article 6 of the Convention, about the outcome of two sets of her civil proceedings and referred to Articles 9, 14 and 17 of the Convention and Article 2 of Protocol No. 4 to the Convention in respect of the facts of the present case. 103. Having considered these complaints in the light of all the material in its possession, the Court finds that, in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. 104. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 105. 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 106. The applicant initially claimed 100,000 euros (EUR) in respect of non-pecuniary damage on account of the alleged breach of Article 8 (in her reply to the Government’s observations of 10 April 2012) and a further EUR 200,000 in respect of the alleged breach of Article 3 of the Convention (in her reply to the Government’s additional observations of 25 December 2013). In addition, in her reply to the Government’s observations of 10 April 2012, she also asked that the respondent State be obliged to buy her share in the disputed flat at a fair price, corresponding to the market value of half the flat, in order to enable the applicant to buy another flat, which would belong to her exclusively. 107. The Government alleged that this claim was exorbitant and unsubstantiated. 108. The Court recalls that the case at issue concerned breaches of Articles 3 and 8 of the Convention. It does not see a correlation between the breaches of these provisions and a requirement to finance acquisition of a new flat for the applicant. It therefore dismisses this claim. On the other hand, the Court considers that the applicant must have suffered anguish and distress on account of the facts giving rise to the finding of breaches of Articles 3 and 8 of the Convention. Ruling on an equitable basis, it awards the applicant EUR 4,000 in respect of non-pecuniary damage. B. Costs and expenses 109. In her reply to the Government’s observations of 10 April 2012, the applicant also claimed legal fees for her representation before the Court, unspecified court fees and costs of translation of unspecified documents into English. She submitted some documents, including a copy of her contract with a firm called Dimex for legal representation; however, she did not specify the exact amount of her claim for legal fees or any other expenses. In her reply to the Government’s additional observations of 25 December 2013 the applicant did not reiterate her previous claim and did not submit any new claims under this head. 110. The Government pointed out that the applicant had been provided with legal aid to cover the costs of her representation before the Court, and that in any event she had failed to substantiate her claims for costs and expenses with appropriate documentary evidence. 111. 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, the Court recalls that the applicant has been provided with legal aid and considers, regard being had to the documents in its possession and the above criteria, that the applicant’s claim for costs and expenses should be rejected for lack of substantiation. C. Default interest 112. 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 to the merits the Government’s objections concerning non-exhaustion of domestic remedies in respect of the applicant’s complaints under Articles 3 and 8 of the Convention and dismisses them; 2. Declares the complaints under Articles 3 and 8 of the Convention admissible and the remainder of the application inadmissible; 3. Holds that there has been a violation of Article 3 of the Convention; 4. Holds that there has been a violation of Article 8 of the Convention; 5. 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 4,000 (four thousand euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, in respect of non-pecuniary damage; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 13 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Milan BlaškoAngelika Nußberger Deputy RegistrarPresident

FOURTH SECTION CASE OF GAVRILOVICI v. MOLDOVA (Application no. 25464/05) JUDGMENT STRASBOURG 15 December 2009 FINAL 15/03/2010 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 Gavrilovici v. Moldova, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,Giovanni Bonello,Ljiljana Mijović,Ján Šikuta,Mihai Poalelungi,Nebojša Vučinić, judges,and Lawrence Early, Section Registrar, Having deliberated in private on 15 December 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 25464/05) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Moldovan national, Mr Alexandru Gavrilovici (“the applicant”), on 28 June 2005. 2. The applicant was represented by Mr V Gribincea from “Lawyers for Human Rights”, a non-governmental organisation based in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu. 3. The applicant alleged, in particular, that he had been detained in inhuman conditions and that his right to freedom of expression had been breached as a result of the sanction imposed on him. 4. The application was allocated to the Fourth Section of the Court. On 6 November 2008 the President of the Section decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it was decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1954 and lives in Palanca. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 1. The background of the case 7. The applicant's wife and son have been suffering from chronic renal failure (a gradual and progressive loss of the ability of the kidneys to excrete waste, concentrate urine, and conserve electrolytes) since 1998 and 2002 respectively. Consequently they need haemodialysis (a medical procedure that uses a machine to filter waste products from the bloodstream and to restore the blood's normal constituents). They are both disabled on account of their disease (first degree disability, 100% unfit for work). 8. While they live in Palanca village in Ştefan-Vodă county, they have to travel to Chişinău to receive their haemodialysis treatment. Initially, their transportation costs were covered by the regional hospital. However, starting from early 2004, the hospital no longer covered these expenses. In order to continue to benefit from financial help, the applicant's wife and son had to apply to the regional council, which could include the relevant expenses in the regional budget. The hospital informed the regional council about the situation. It also requested a confirmation that the applicant's wife and son actually lived in Palanca. Such a confirmation from the competent State authority was provided on 12 May 2004. 9. On 15 July 2004 the regional council discussed amendments to the regional budget in order to include additional expenses to cover transportation costs for five persons requiring haemodialysis in the county. All those in need of such support were granted it, except for the applicant's wife and son. The reason for the refusal was certain information about the fact that they lived in Chişinău and not in Palanca and therefore did not need transportation to obtain haemodialysis treatment. The decision regarding the applicant's wife and son was postponed. 10. On 5 August 2004 the regional council did not include on its agenda the issue of financial aid to the applicant's wife and son. 11. On 4 November 2004 the regional council met again, and a declaration from the applicant's wife was distributed to all the councillors. The issue concerning financial aid to the applicant's wife and son was put on the agenda. When it was examined, several councillors spoke against introducing the amendments. The county President I.M. stated that he had only seen the applicant twice (implying that the latter did not live in Palanca) and that he was against misappropriation of public funds. Some councillors spoke of the applicant's wife and son living at specific addresses in Chişinău and not needing financial support. Others mentioned the applicant's complaints to various authorities, including courts, against I. M., and the need to protect him from unwarranted attacks. 12. Then the applicant took the floor. According to the minutes of the meeting, he stated: “... what is most insulting is that my son was indeed a student until 2002, when his health worsened and he had to abandon his studies. My wife asked for help in 2004, but that was refused. They told her that she was good to go cultivate the land. My boy is not [in Chişinău]. I do not take back my words that [I. M.] is a fascist...”. 13. According to the applicant, he did not insult anyone during the meeting and did not use the word fascist. 14. After the applicant's statement, he was invited to leave the room and he eventually did so. 15. I. M., the president of Ştefan-Vodă county, used to be the head of the regional police station in the same county. In April 2001 he initiated criminal proceedings against the applicant for failure to pay taxes, following which the applicant was convicted on 12 December 2001. At the meeting on 4 November 2004 one councillor noted that the applicant had made 37 complaints against I.M. to various authorities, including courts. 2. The proceedings against the applicant 16. On 27 December 2004 I. M. asked the regional police station to initiate proceedings against the applicant for insulting members of the regional council “during a meeting on 3 December 2004”. He lodged an identical request with the prosecutor's office. 17. The applicant unsuccessfully asked the police to discontinue the proceedings, in the absence of a proper written or audio record of the statements made during the meeting on 4 November 2004. According to the applicant, at the beginning of the meeting it was declared that an audio recording was being made. The applicant asked for a copy of the audio record of the meeting, which was refused. He later initiated court proceedings in order to obtain that record, but the courts rejected his claims. 18. On 26 January 2005 a police officer charged the applicant with having insulted I. M. on 4 November 2004. The case file was sent to the local court, together with the minutes of the meeting on 4 November 2004 and statements by three witnesses. One of the witnesses stated that the applicant had called I. M. a fascist for leaving his family without any help, while another said that the applicant had used a number of insulting words, without specifying which. The third (V. B.) explained that the applicant had not insulted anybody and even if some of his words could be considered vulgar, nobody was affected. 19. Again on 26 January 2005 the applicant was brought before the court. According to the applicant, he asked for witnesses to be heard in order to confirm that he had not insulted anyone. Without reacting to his request, and after a five-minute hearing, the judge convicted and sentenced him to five days' detention. The court found that the applicant had called I.M. a “fascist” and “other insulting words”. The applicant was immediately placed in detention and served all five days. 20. On the same day the applicant appealed, referring to the absence of an audio record of the meeting and the statement by one of the three witnesses regarding the absence of any insulting meaning in his words during the meeting. 21. The Bender Court of Appeal scheduled the hearing of the applicant's appeal for 16 February 2005. On the morning of that day he registered a request with that court's registry to postpone the hearing due to the fact that he already had another hearing scheduled before the Supreme Court of Justice on the same day. The court held the hearing on 16 February 2005 and did not refer to the applicant's request. It rejected the applicant's appeal as unfounded, finding that the lower court had properly examined the case and established that the applicant had insulted I. M. 22. On 25 March 2005 the newspaper Flux published an article describing the applicant's case. In reaction to that article, on 26 April 2005 V.B. and another regional councillor present at the meeting of 4 November 2004 wrote to the applicant's wife, explaining the reasons for the decision taken earlier rejecting help for her and her son due to the lack of information. They added that the applicant had not insulted anyone during that meeting. 23. The applicant asked for the reopening of the proceedings in view of his absence from the hearing of 16 February 2005, but the request was refused on 25 May 2005. A further request to the Prosecutor General's office to initiate the reopening of the proceedings was also refused on 30 May 2005. 24. In parallel to the above events, on 28 December 2004 I. M. asked the police to initiate criminal proceedings against the applicant for forging documents confirming his family's residence in Palanca. The investigation was discontinued on 8 April 2005 because the applicant and his family had their true residence in Palanca. On 22 April 2005 the prosecutor's office initiated court proceedings aimed at deleting the applicant's family's registration as residents of Palanca. On 9 June 2005 the Prosecutor General's office withdrew that court action. 3. Conditions of detention in the regional police station 25. The applicant contends that he was detained for five days, together with three other persons, in a cell measuring approximately 12 square metres. The cell was in the basement of the police station and was damp and dark, the window being covered by a metal sheet with holes in it. There was a wooden platform in the cell, approximately 1.8 metres wide, which was used as a bed by all four detainees. No bed linen was provided and all the detainees had to sleep in their clothes. Heating was very limited and it was cold in the cell. All the other detainees smoked, exposing the applicant to passive smoking. Food was served three times a day and two of the meals were limited to a pot of tea and a slice of bread. There was no toilet or running water in the cell. Detainees were escorted to the toilet twice a day for 3-5 minutes each, which was insufficient for their needs. They therefore had to urinate into plastic bottles in between their visits to the toilet, in plain view of the other detainees. There was no hot water and the applicant could not take a bath during his detention. 26. On 27 January 2005 the applicant's wife and daughter wanted to visit him, but this was refused because of the short term of the applicant's detention. His request to meet his family was also rejected because he was “without exit”, as noted also on the minutes of the personal search to which he was subjected upon being placed in detention. 27. On 29 January 2005 the applicant asked permission to visit a church in order to attend religious services after his mother's death on 24 January 2005. This request was refused since he had not yet served all five days of detention. The applicant did not leave the cell during the whole five days, except for the short visits to the toilet. Since his glasses were taken away upon placement in the detention cell, he could not read newspapers and there was no radio or TV in the cell. II. RELEVANT NON-CONVENTION MATERIALS A. Relevant domestic law and practice 28. The relevant provisions of the Code of Administrative Offences read as follows: “Article 31. Administrative detention Administrative detention shall be applied only in exceptional cases for certain categories of administrative offences for a period of up to thirty days. Administrative detention shall be applied by the court...” “Article 47/3. Insult (injuria) Insult, i.e. an intentional attack on a person's honour and dignity by act, orally or in writing, shall be punished by 7-15 times the conventional unit or by administrative detention of up to fifteen days...” 29. The Government submitted examples of domestic courts' case-law awarding compensation to persons who had been detained in inhuman conditions of detention. The courts relied on Article 1422 of the Civil Code. The cases included the case of T. Ciorap v. The Ministry of Finances, Ministry of Internal Affairs and Prosecutor General's Office (nr. 2a-1529/07) and the case of V. Drugalev (cited in Holomiov v. Moldova, no. 30649/05, § 88, 7 November 2006). B. Report by the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) and the Government's response thereto 30. In its report concerning its visit to Moldova on 14‑24 September 2007 the CPT found, inter alia, the following (unofficial translation from original French): “4. Conditions of detention ... b. cells at local police stations 40. The cells seen by the delegation at the local police stations visited were not suitable for holding persons for more than a few hours. They were dark, unventilated, unheated, dilapidated and dirty, and were equipped at best with a bench. In addition to cells, local police stations had a barred enclosure, referred to as a “waiting room”, which usually measured some 5 to 6 sq.m and was devoid of any equipment. According to police staff, the cells were being used for periods of detention not exceeding 3 hours. However, the delegation received many allegations – and found documentary evidence in the custody records – that persons had in fact frequently been held overnight, on occasion for up to 5 days .... Further, it became apparent that administrative detainees had spent up to 10 days in cells at local police stations. The persons concerned had not been provided with mattresses or blankets, and had not been offered anything to eat (the only food available was that brought by detainees' families). The current situation is totally unacceptable. The CPT calls upon the Moldovan authorities to take effective steps to ensure that nobody is kept overnight at local police stations. Immediate steps should also be taken to equip all cells and “waiting rooms” with a means of rest (e.g. a bench). Furthermore, all persons detained in local police stations, irrespective of their legal status, should be offered food at normal mealtimes.” 31. The Government's response to paragraph 40 of the CPT report 2007 included the following statement (unofficial translation from original French): “Despite the measures taken in the field of creating decent conditions of detention, in view of the insufficient funding, in certain IDPs the situation remains complicated. Following verifications made during the first eight months of 2008, the Ministry of Internal Affairs ordered, due to derogations from the legislation in force, the closing down of the IDPs in police stations of ..., Ştefan-Vodă, ...”. THE LAW 32. The applicant complained of a violation of Article 3 of the Convention because of the inhuman and degrading conditions of his detention. Article 3 reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 33. He also complained of a violation of his right to freedom of expression, contrary to Article 10 of the Convention, which reads: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” I. ADMISSIBILITY 34. The Government considered that the applicant had not exhausted available domestic remedies as he had failed to lodge a civil law action claiming compensation for damage caused by the allegedly inhuman conditions of detention. They submitted examples of case-law where the domestic courts awarded compensation to detainees who had been detained in inhuman conditions of detention (see paragraph 29 above). The applicant considered that the remedies suggested were ineffective since they implied lengthy court proceedings, as confirmed by the very examples relied on by the Government. Moreover, the case-law of Moldovan courts was generally unavailable to the general public except for a part of the jurisprudence of the Supreme Court of Justice and only starting from late 2008. Moreover, the miserable compensation awarded bore no reasonable relationship to the level of suffering of the two detainees in the case-law relied on by the Government. 35. In so far as the remedy of a civil action to request an immediate end to the alleged violation is concerned (the Drugalev case), the Court has already found that it did not constitute sufficient evidence that such a remedy was effective at the relevant time (see Holomiov, cited above, § 106). The more recent case submitted by the Government (the Ciorap case) does not change that conclusion, since it was not argued that the court could have ordered an immediate improvement of the conditions of detention. The proceedings would certainly have taken longer than the five days during which the applicant was detained. It is also noted that in the case mentioned above Mr Ciorap lodged an application with the Court (no. 7481/06) in respect of what he considered to be a very low level of compensation awarded to him (3,000 Moldovan lei (MDL), equivalent of 181 euros (EUR) at the time) for confirmed acts of torture, failure to provide medical help and inhuman conditions of detention. In such circumstances and since Mr Ciorap's application is still pending, the Court cannot accept this case as clearly establishing a consistent domestic practice of effectively redressing any damage caused by violations of Article 3 of the Convention. Finally, the Court notes that in Malai v. Moldova (no. 7101/06, §§ 45-46, 13 November 2008), it found a violation of Article 13 of the Convention on account of lack of effective remedies in Moldova against inhuman and degrading conditions of detention. That finding was confirmed in Straisteanu and Others v. Moldova (no. 4834/06, § 67, 7 April 2009). Therefore, the Court considers that the Government have not submitted sufficient evidence that a civil law action would have offered complete redress for the alleged damage caused to the applicant. This objection must therefore be rejected. 36. The Court also notes that the applicant initially complained under Article 6 of the Convention, referring essentially to the same procedural issues as those raised under Article 10 of the Convention. In his subsequent observations he did not pursue this complaint. The Court will therefore not examine it. 37. The Court considers that the application raises questions of fact and law which are sufficiently serious that their determination should depend on an examination of the merits. It therefore declares the application admissible. In accordance with its decision to apply Article 29 § 3 of the Convention (see paragraph 4 above), the Court will immediately consider its merits. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION A. The parties' submissions 1. The applicant 38. The applicant complained of a violation of his rights guaranteed under Article 3 of the Convention. He referred to his earlier description of conditions of detention (see paragraphs 25-27 above) and added that the Government had failed to rebut several of his assertions about the conditions, such as overcrowding, high humidity, the fact that he had to sleep on a small wooden platform instead of a bed, sharing it with three other persons, that he had been exposed to passive smoking, that there was no toilet or tap water in the cell, that he could visit the toilet only twice a day and could not take a shower throughout his detention, and that he had no daily walks. Neither was it in dispute that the applicant's wife and daughter had been denied the right to visit the applicant and that he had been prevented from attending a church service after his mother's death. 39. The applicant added that the conditions described were a general feature of police stations throughout the country. There was no evidence that the authorities had allocated money for improving detention facilities in the local police stations. The findings of the CPT were valid for Ştefan‑Vodă police station where the applicant had been detained, even though the CPT had never visited that station (it had visited 32 out of 39 police stations). The Government submitted no evidence to substantiate their claim that Ştefan-Vodă police station was different from all the other similar stations which the CPT had visited. The fact that the situation was generally bad throughout the country was confirmed by the CPT finding in its 2004 report that the budget allocated for feeding each detainee was EUR 0.28 per day or 30% of the minimum calculated by the domestic authorities themselves. Again, this coincided with the applicant's claim that he had received very little food of very poor quality, and was moreover prevented from receiving any food from his family. In this latter respect the case was different from the case of Gorea v. Moldova (no. 21984/05, §§ 47-51, 17 July 2007). Moreover, in that case the applicant was able to see his family and to benefit from a minimum of hygiene, which was totally absent in the present case. Finally, unlike in Gorea, the applicant in the present case suffered considerably from being unable properly to honour his mother's death in a church service and worried for the health of his family as he was its only breadwinner and they were very ill. 2. The Government 40. The Government submitted that the applicant had been detained in a well-lit and ventilated cell and had access to hot water and bed linen. Moreover, there was sufficient space in the cell to satisfy the requirements of 4 square metres per detainee accepted as a minimum by the CPT. The applicant received food in sufficient quantity and of sufficient quality, in accordance with the relevant Government decision. The budget provided for each detainee MDL 9.19, equivalent to EUR 0.56 euros at the time) per day for food. Moreover, the applicant had not asked for medical assistance or to receive any visits. In any event, the applicant had been detained for only five days, a much shorter period than the fourteen days' detention of the applicant in Gorea, cited above, where no violation of Article 3 was found. B. The Court's assessment 41. The Court reiterates that, according to its case-law, 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 level is, in the nature of things, 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 (see Kudła v. Poland [GC], no. 30210/96, § 91, ECHR 2000-XI, and Peers v. Greece, no. 28524/95, § 67, ECHR 2001-III). Although the purpose of such treatment is a factor to be taken into account, in particular 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, cited above, § 74). 42. In the present case, the Court notes that the applicant gave a detailed description of his conditions of detention in Ştefan-Vodă police station. That description was only partly challenged by the Government, which did not challenge the applicant's submissions concerning the size of the cell, the number of persons detained there, with whom he had to share the wooden platform for sleeping, the lack of heating, the absence of a toilet in the cell or that the applicant was subjected to passive smoking. More importantly, it follows from the statement made by the Government in response to the CPT report of 2007 that in 2008 the detention centre of Ştefan‑Vodă police station was one of those which had to be closed down by the Ministry of Internal Affairs since it did not correspond to legal requirements (see paragraph 31 above). It follows that the domestic authorities themselves considered that the conditions of detention offered in the police stations concerned, including that in Ştefan-Vodă, were so bad as to be incompatible with any type of detention. 43. The Court also points out the recommendation made by the CPT in its 2007 report, after having visited a number of detention centres in Moldovan police stations, that such detention facilities should never serve to detain a person for anything other than a brief period, and that nobody should be detained there overnight (see paragraph 30 above). However, the applicant was detained there for five days. In this respect the present case is to be distinguished from Gorea, cited above. It appears both from the CPT report and the decision to close down the relevant detention centre that it was particularly unsuitable for detention of any kind. This was not the case in Gorea. 44. The Court considers that the particularly harsh conditions of the applicant's detention, combined with the added suffering from his inability to meet ill members of his family and to go to church to honour his recently deceased mother (see paragraphs 26 and 27 above; the Government did not submit that the applicant had not made the two requests referred to in these paragraphs or that they had been accepted), attained a minimum level of severity so as to constitute treatment contrary to Article 3 of the Convention. In the particular circumstances of the present case, the short period of his detention does not affect that finding. There has, accordingly, been a violation of Article 3 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION A. The parties' submissions 1. The applicant 45. The applicant alleged that his right to freedom of expression had been breached as a result of the administrative sanction applied to him. He contended that there had been an interference with his rights guaranteed under Article 10 of the Convention, but conceded that it had been “prescribed by law”. He doubted that the real aim of the sanction had been to protect the reputation of I.M. rather than to punish him for making many complaints against the region's leadership. 46. The interference was not “necessary in a democratic society”, since it was a form of revenge by I.M., who had previously prosecuted the applicant, for the latter's criticism of him. The applicant attempted to prove that he had not insulted I.M. by asking for witnesses to be heard and for the audio record of the hearing to be examined, but to no avail. One of the three witnesses relied on by the police in fact denied that the applicant had insulted I.M. Moreover, the applicant was sanctioned for calling I.M. a “fascist” and for using “other insulting words”. During the hearing, which lasted some five minutes, neither of the two courts which examined his case even tried to verify his version of the events, or at least to establish exactly which “other insulting words” he had used. Moreover, it was unclear why the three witnesses had given written explanations to the police concerning the incident on 10 and 22 December 2004, given that a complaint was not lodged with the police by I.M. until 28 December 2004. 47. At the hearing of 4 November 2004 a heated exchange took place and the applicant's reaction was in response to I.M.'s provocative words. While for ten months his wife and son had not received much needed help, they were again accused of abuse during the meeting. Hence, even if the applicant had overreacted this was natural in the light of the context in which he had spoken. Finally, the five days' detention applied by the court constituted a clearly disproportionate sanction, given that the law also provided for a fine as an alternative. The domestic courts never attempted to apply Article 10 principles and were not concerned with issues such as proportionality. 2. The Government 48. The Government submitted that the applicant had used his freedom of expression “irresponsibly” by insulting I.M. Calling someone a “fascist” and attacking someone's honour and reputation by means of groundless insults had no place in a democratic society. 49. Moreover, the sanction applied to the applicant was not the most serious measure, since the law allowed for up to fifteen days' imprisonment. Imprisonment itself was not incompatible with observance of Article 10 and the applicant's expressions had certainly been serious enough to warrant a serious response. B. The Court's assessment 50. It is common ground between the parties, and the Court agrees, that the decisions of the domestic courts and the sanction imposed on the applicant amounted to “interference by [a] public authority” with the applicant's right to freedom of expression under the first paragraph of Article 10. Such interference will entail a violation of Article 10 unless it is “prescribed by law”, has an aim or aims that are legitimate under paragraph 2 of the Article and is “necessary in a democratic society” to achieve such aim or aims. 1. “Prescribed by law” 51. The Court notes that the interference complained of had a legal basis, namely Article 47 of the Code of Administrative Offences (see paragraph 28 above). The Court considers that this provision is both accessible and foreseeable in its application. Accordingly, the Court concludes that in this case the interference was “prescribed by law” within the meaning of Article 10 § 2. 2. “Legitimate aim” 52. The Court notes that the applicant disputes that the interference pursued the legitimate aim of protecting I.M.'s reputation. However, the Court does not see any reasons to doubt that the interference served the legitimate aim of protecting I.M.'s reputation. It therefore remains to be examined whether the interference was “necessary in a democratic society”. 3. “Necessary in a democratic society” 53. The relevant general principles have been summarised in Busuioc v. Moldova (no. 61513/00, §§ 56-62, 21 December 2004), Timpul Info-Magazin and Anghel v. Moldova, no. 42864/05, §§ 29-30, 27 November 2007 and Flux v. Moldova (no. 6), no. 22824/04, § 24-26, 29 July 2008). 54. The Court notes that in the present case the applicant was sanctioned for calling I.M. a “fascist” and for “using other insulting words”, which were never specified by the courts. It considers that sanctioning someone on the basis of such vague and unverified facts as “using other insulting words” without having at least determined what those words were amounts in itself to a violation of Article 10 of the Convention. 55. As for calling I.M. a fascist, the applicant claims that he never used that word. He asked for witnesses to be heard and for the audio record and transcript of the hearing to be examined in order to verify his claim. However, the courts refused without giving any reasons for considering that I.M.'s version was true and without hearing a single witness. The Court considers that, in ignoring the evidence adduced to support the applicant's submissions and thereby to show that he had not insulted I.M., the finding of the Moldovan courts that he had uttered such insults could not be justified as necessary in a democratic society (see, mutatis mutandis, Jerusalem v. Austria, no. 26958/95, § 45-46, ECHR 2001‑II; Savitchi v. Moldova, no. 11039/02, § 59, 11 October 2005, and Busuioc, cited above, § 88). 56. The Court also considers that, even assuming that the applicant called I.M. a “fascist”, the domestic courts failed to address the crucial issue of whether the utterance attributed to him was capable of being a value judgment, the veracity of which, unlike a statement of fact, is not susceptible of proof. It recalls that it has previously found that terms such as “neo-fascist”, and “Nazi” do not automatically justify a conviction for defamation on the ground of the special stigma attached to them (see Scharsach and News Verlagsgesellschaft v. Austria, no. 39394/98, § 43, ECHR 2003‑XI). In Bodrožić v. Serbia (no. 32550/05, § 51, 23 June 2007), the Court repeated its view that the generally offensive expressions “idiot” and “fascist” may be considered to be acceptable criticism in certain circumstances (see Bodrožić, cited above; Oberschlick v. Austria (no. 2), judgment of 1 July 1997, Reports of Judgments and Decisions 1997‑IV; Feldek v. Slovakia, no. 29032/95, ECHR 2001‑VIII). It further observed in the Bodrožić case that calling someone a fascist, a Nazi or a communist cannot in itself be identified with a factual statement of that person's party affiliation (see, mutatis mutandis, Feldek v. Slovakia, cited above, § 86). 57. The Court must examine the specific circumstances of a case as a whole in order to establish whether an applicant's criminal conviction for having used such expressions can be considered proportionate to the legitimate aim pursued (see, for example, Bodrožić, cited above, § 51). 58. Turning to the instant case, and even supposing that the applicant had used the impugned words, this must be considered to have been clearly in response to I.M.'s own declarations, made against the background of the longstanding animosity between them (see paragraphs 11 and 15 above). Since the applicant participated in the meeting and saw that his family risked being refused once more the much-needed financial assistance, and despite having submitted all the required documents confirming their right to obtain it, he must have been in a state of despair and anger. His intervention shortly after that of I.M. was akin to one “made in the course of an oral exchange and not in writing, after careful consideration” (see Fuentes Bobo v. Spain, no. 39293/98, § 48, 29 February 2000 and Raichinov v. Bulgaria, no. 47579/99, § 51, 20 April 2006). These considerations did not form part of the domestic courts' analysis. 59. At the same time, the domestic court gave no consideration to the fact that the words allegedly used by the applicant were uttered against a public official at a council meeting, a political context in which statements comprising value judgments deserve particular protection. It must also be noted that the council meeting was held in camera, and there had been no media coverage of the incident. The Court recalls that the limits of acceptable criticism are wider as regards a politician than as regards a private individual. In any event, the effect of his speech must in the circumstances have been minimal, especially given that all those present were well aware of the tensions between the applicant and I.M. and had heard the statements which had provoked the applicant's reaction (see, mutatis mutandis, Nikula v. Finland, no. 31611/96, § 52 in limine, ECHR 2002‑II). 60. Finally, the Court recalls that imposing criminal sanctions on someone who exercises the right to freedom of expression can be considered compatible with Article 10 “... only in exceptional circumstances, notably where other fundamental rights have been seriously impaired ...” (see, mutatis mutandis, Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 115, ECHR 2004‑XI). In the present case, the courts did not refer to any such exceptional circumstance and did not establish whether the harm caused to I.M. was of such a degree that it required a five days' prison term to be imposed on the applicant. 61. The Court considers that by summarily convicting the applicant without attempting to verify the circumstances of the case and by failing to examine the context in which the applicant's alleged statement had been made, and without any analysis of the need to send the applicant to prison, the domestic courts did not establish a “pressing social need” for the interference with his right to freedom of expression. Article 10 of the Convention has therefore been violated in the present case. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 62. 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 63. The applicant claimed EUR 9,000 in compensation for non-pecuniary damage caused to him as a result of the inhuman conditions of his detention following a totally unwarranted conviction in violation of Article 10 of the Convention. He referred to similar awards made in other Article 3 and Article 10 cases. 64. The Government submitted that the amount claimed had been excessive in comparison with other similar cases, considering also that in the present case freedom of the press and its fundamental role in imparting information was not at stake. 65. In the light of the circumstances of the present case and judging on an equitable basis, the Court awards the applicant EUR 6,000. B. Costs and expenses 66. The applicant also claimed EUR 2,826.5 for legal costs. He submitted a detailed time-sheet and a contract according to which the lawyer had worked for 33.25 hours at an hourly rate of EUR 85. The fee charged was in any event half the maximum recommended by the Moldovan Bar Association for representation before international courts and the lawyer's reputation as one who had successfully represented applicants in a number of serious cases before the Court allowed him to charge such fees. Moreover, the case was of a certain complexity. 67. The Government disagreed with the amount claimed and argued that the case was not very complex in comparison to similar cases, in which the Court had awarded smaller amounts of compensation for legal costs. 68. In the present case, regard being had to the itemised list submitted and the complexity of the case, the Court awards the applicant EUR 2,000 for costs and expenses. C. Default interest 69. 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 1. Declares the application admissible; 2. Holds that there has been a violation of Article 3 of the Convention; 3. Holds that there has been a violation of Article 10 of the Convention; 4. 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, the following amounts, to be converted into Moldovan lei at the rate applicable at the date of settlement: (i) EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant, 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 applicant's claim for just satisfaction. Done in English, and notified in writing on 15 December 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyNicolas BratzaRegistrarPresident

FIFTH SECTION CASE OF LOGVINENKO v. UKRAINE (Application no. 41203/16) JUDGMENT STRASBOURG 16 May 2019 This judgment is final but it may be subject to editorial revision. In the case of Logvinenko v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Síofra O’Leary, President,Mārtiņš Mits,Lado Chanturia, judges,and Liv Tigerstedt, Acting Deputy Section Registrar, Having deliberated in private on 25 April 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 12 July 2016. 2. The applicant was represented by Mr M. O. Tarakhkalo, Ms A. L. Yushchenko, Ms O. O Protsenko, Ms O. R. Chylutyan and Mr D. I. Mazurok, lawyers practising in Kyiv. 3. Notice of the application was given to the Ukrainian Government (“the Government”). THE FACTS 4. The applicant’s details and information relevant to the application are set out in the appended table. 5. The applicant alleged that he did not receive adequate medical care in detention. The applicant also raised other complaints under the provisions of the Convention. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 6. The applicant complained principally that he was not afforded adequate medical treatment in detention. He relied on Article 3 of the Convention, which reads as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 7. The Court notes that the applicant suffered from serious medical conditions, as indicated in the appended table, which affected his everyday functioning. 8. The Court reiterates that the “adequacy” of medical assistance remains the most difficult element to determine (see Blokhin v. Russia [GC], no. 47152/06, § 137, ECHR 2016). It has clarified in this context that the authorities must ensure that diagnosis and care are prompt and accurate (see Pokhlebin v. Ukraine, no. 35581/06, § 62, 20 May 2010, and Gorbulya v. Russia, no. 31535/09, § 62, 6 March 2014, with further references) and that ‒ where necessitated by the nature of a medical condition ‒ supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at successfully treating the detainee’s health problems or preventing their aggravation (see, inter alia, Ukhan v. Ukraine, no. 30628/02, § 74, 18 December 2008, and Kolesnikovich v. Russia, no. 44694/13, § 70, 22 March 2016, with further references). The Court stresses that medical treatment within prison facilities must be appropriate and comparable to the quality of treatment which the State authorities have committed themselves to providing for the entirety of the population. Nevertheless, this does not mean that each detainee must be guaranteed the same level of medical treatment that is available in the best health establishments outside prison facilities (see Sadretdinov v. Russia, no. 17564/06, § 67, 24 May 2016, and Konovalchuk v. Ukraine, no. 31928/15, § 52, 13 October 2016, with further references). 9. Having examined all the material submitted to it, the Court has identified the shortcomings in the applicant’s medical treatment, which are listed in the appended table. The Court has already found a violation in respect of issues similar to those in the present case (see Nevmerzhitsky v. Ukraine, no. 54825/00, §§ 103-05, ECHR 2005‑II (extracts), and Sergey Antonov v. Ukraine, no. 40512/13, §§ 76-90, 22 October 2015). Bearing in mind its case-law on the subject, the Court considers that in the instant case the applicant did not receive comprehensive and adequate medical care whilst in detention. 10. This complaint is therefore admissible and discloses a breach of Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 11. The applicant also complained that no effective domestic remedies regarding his complaint about the quality of the medical care in detention were available to him. His complaint falls to be examined under Article 13 of the Convention, which reads as follows: Article 13 “Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority ...” 12. The Court has on many occasions established that there is a lack of effective domestic remedies to complain about the quality of medical treatment in detention (see, among many other authorities, Melnik v. Ukraine, cited above, §§ 113-16; Koval v. Ukraine, no. 65550/01, §§ 93-98, 19 October 2006; and Savinov v. Ukraine, no. 5212/13, § 58, 22 October 2015). In the aforementioned cases the Court established that none of the legal avenues suggested by the Government constituted an effective remedy to prevent the alleged violations or stop them from continuing, or to provide the applicants with adequate and sufficient redress for their complaints under Article 3 of the Convention. 13. The Court sees no reason which would justify departure from its well-established case-law on the issue. It finds that the applicant did not have at his disposal an effective domestic remedy for his complaint, in breach of Article 13 of the Convention. III. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 14. The applicant submitted another complaint under Article 3 of the Convention, concerning the conditions of his detention, which also raised issues given the relevant well-established case-law of the Court (see appended table). He further argued that he did not have any effective remedy within the meaning of Article 13 of the Convention in respect of the conditions in which he had been detained. 15. These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor they are inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Melnik v. Ukraine (cited above). IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 16. 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.” 17. Regard being had to the documents in its possession and to its case‑law (see, in particular, Logvinenko v. Ukraine, no. 13448/07, §§ 89-95, 14 October 2010), the Court considers it reasonable to award the sum indicated in the appended table and it rejects any additional claims for just satisfaction raised by the applicant. 18. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 3 of the Convention on account of the inadequate medical care in detention; 3. Holds that there has been a violation of Article 13 of the Convention on account of the lack of an effective domestic remedy regarding complaints about the quality of the medical care in detention; 4. Holds that there has been a violation of Articles 3 and 13 of the Convention on account of the inadequate conditions of detention and the lack of an effective domestic remedy in this respect (see appended table); 5. Holds (a) that the respondent State is to pay the applicant, within three months, the amount indicated in the appended table, to be converted into the currency of the respondent State 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicant’s claims for just satisfaction. Done in English, and notified in writing on 16 May 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv TigerstedtSíofra O’Leary Acting Deputy RegistrarPresident APPENDIX Application raising complaints under Article 3 of the Convention (inadequate medical treatment in detention) Application no. Date of introduction Applicant’s name Date of birth Principal medical condition Shortcomings in medical treatment Other complaints under well-established case-law Amount awarded for pecuniary and non-pecuniary damage and costs and expense per applicant (in euros)[1] 41203/16 12/07/2016 Aleksandr Vladimirovich Logvinenko 23/07/1976 Hepatitis lack of/delay in medical testing 24/04/2015 pending More than 3 years, 10 months and 26 days Art. 3 - inadequate conditions of detention facility: Dnipropetrovsk correctional colony no. 89; dates: 17/03/2014 and pending; specific grievances: inadequate temperature, lack of fresh air, no or restricted access to shower, lack or insufficient quantity of food, lack of or insufficient physical exercise in fresh air, lack of requisite medical assistance, Art. 13 - lack of any effective remedy in respect of inadequate medical treatment in detention and against poor conditions of detention 13,500 [1]. Plus any tax that may be chargeable to the applicant.

THIRD SECTION CASE OF DAYANOV AND OTHERS v. RUSSIA (Application no. 9668/10) JUDGMENT STRASBOURG 4 May 2017 This judgment is final but it may be subject to editorial revision. In the case of Dayanov and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Luis López Guerra, President,Dmitry Dedov,Branko Lubarda, judges,and Karen Reid, Section Registrar, Having deliberated in private on 30 March 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 9668/10) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Russian nationals, Mr Leonid Faizovich Dayanov, Ms Elza Maratovna Dayanova, Mr Rinat Ralifovich Abkadyrov, Mr Tagir Maratovich Ulyamayev and Mr Ruslan Leonidovich Dayanov (“the applicants”), on 28 January 2010. 2. The application was communicated to the Russian Government (“the Government”). THE FACTS 3. The relevant details of the application are set out in the appended table. 4. Mr L. Dayanov, Ms E. Dayanova, Mr R. Abkadyrov and Mr T. Ulyamayev complained about the excessive length of their pre-trial detention. Mr R. Dayanov complained about his unlawful detention on 7 May 2008. On 4 December 2015 Ms E. Dayanova revoked her application. THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 5. Mr L. Dayanov, Ms E. Dayanova, Mr R. Abkadyrov and Mr T. Ulyamayev complained principally that their pre-trial detention had been unreasonably long. They relied on Article 5 § 3 of the Convention, which read as follows: Article 5 § 3 “3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” 6. In view of Ms E. Dayanova’s request, the Court decides to strike the application out in so far as it concerns this applicant. 7. As regards the remaining applicants, the Court observes that the general principles regarding the right to trial within a reasonable time or to release pending trial, as guaranteed by Article 5 § 3 of the Convention, have been stated in a number of its previous judgments (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000‑XI, and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006‑X, with further references). 8. In the leading case of Dirdizov v. Russia, no. 41461/10, 27 November 2012, the Court already found a violation in respect of issues similar to those in the present case. 9. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the applicants’ pre-trial detention was excessive. 10. These complaints are therefore admissible and disclose a breach of Article 5 § 3 of the Convention. II. REMAINING COMPLAINT 11. Mr R. Dayanov raised a complaint under Article 5 § 1 of the Convention. 12. The Court has examined the application and considers that, in the light of all the material in its possession and in so far as the matter complained of is within its competence, this complaint either does not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or does not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 13. 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.” 14. Regard being had to the documents in its possession and to its case‑law (see, in particular, Pastukhov and Yelagin v. Russia, no. 55299/07, 19 December 2013), the Court considers it reasonable to award the sums indicated in the appended table. 15. 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 strike the application in so far as it concerns Ms E. Dayanova out of its list of cases in accordance with Article 37 § 1 (a) of the Convention; 2. Declares the complaints of Mr L. Dayanov, Mr R. Abkadyrov and Mr T. Ulyamayev concerning the excessive length of pre-trial detention admissible, and the remainder of the application in so far as it concerns Mr R. Dayanov inadmissible; 3. Holds that these complaints disclose a breach of Article 5 § 3 of the Convention concerning the excessive length of pre-trial detention; 4. Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State 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. Done in English, and notified in writing on 4 May 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Karen ReidLuis López GuerraRegistrarPresident APPENDIX Application raising complaints under Article 5 § 3 of the Convention (excessive length of pre-trial detention) Application no.Date of introduction Applicant name Date of birth Period of detention Length of detention Amount awarded for pecuniary and non‑pecuniary damage and costs and expenses per applicant marked by asterisks (in euros)[1] 9668/10 28/01/2010 (4 applicants) Leonid Faizovich Dayanov * 27/09/1964 Rinat Ralifovich Abkadyrov * 10/06/1985 Elza Maratovna Dayanova 19/11/1964 Tagir Maratovich Ulyamayev * 21/05/1971 Ruslan Leonidovich Dayanov 14/01/1992 07/05/2008 to 29/04/2013 4 year(s) and 11 month(s) and 23 day(s) 5,000 [1]. Plus any tax that may be chargeable to the applicants.

FIRST SECTION CASE OF GUBER v. RUSSIA (Application no. 34171/04) JUDGMENT STRASBOURG 23 October 2008 FINAL 23/01/2009 This judgment may be subject to editorial revision. In the case of Guber v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Nina Vajić, President,Anatoly Kovler,Khanlar Hajiyev,Dean Spielmann,Sverre Erik Jebens,Giorgio Malinverni,George Nicolaou, judges,and André Wampach, Deputy Registrar, Having deliberated in private on 2 October 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 34171/04) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Georgiy Edmundovich Guber (“the applicant”), on 18 July 2003. 2. The Russian Government (“the Government”) were represented by Mr P. Laptev, former Representative of the Russian Federation at the European Court of Human Rights. 3. On 24 March 2006 the President of the First Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3). THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1946 and currently lives in New Portland, the United States. 5. In March 1996 a third person on the applicant’s behalf sold his car to another third person. The sale was carried out on the basis of a power of attorney issued by the applicant to the third person in 1993. 6. On 11 November 1996 the applicant asked the Syktyvkar Town Court to declare null and void the sale of his car claiming that it had been performed contrary to his will and on the basis of a revoked and thus invalid power of attorney. 7. On 14 May 1998 the Town Court held the first hearing of the case. It appears that the proceedings were adjourned at least on five occasions: on 18 September 1998, 12 July and 2 November 1999, on 27 June 2001 and on 26 August 2002, when on the latter date, the case was, according to the Government, adjourned as the judge was busy in unrelated proceedings. 8. On 30 January 2003 the Town Court examined and dismissed the applicant’s claim in absentia. The applicant received a copy of the reasoned version of the judgment on 12 February 2003 and introduced a notice of appeal. Since the applicant failed to pay the court fee and to make the relevant number of copies of his statement of appeal, the court twice refused to examine his appeal and set new time-limits for lodging it. The applicant was requested to comply with the procedural requirements. 9. On 25 March 2003 the applicant’s appeal was disallowed due to his failure to comply with the procedural requirements and to pay the court fee. 10. The applicant unsuccessfully attempted to contest this decision. His further appeals were disallowed as they were introduced outside the time-limit. The requests to extend the time-limit were rejected as unsubstantiated. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 11. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” 12. The Government contested that argument. 13. The proceedings lasted from 11 November 1996, when the applicant introduced his claim, to 25 March 2003 when the applicant’s appeal was dismissed, i.e. six years, four months and thirteen days. The Court observes that the period to be taken into consideration began on 5 May 1998, when the Convention came into force in respect of Russia. However, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings at the time, which by then had been pending for approximately one year and six months. 14. The Court observes that in the present case four years, ten months and twenty days fall within the Court’s competence ratione temporis. A. Admissibility 15. 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 16. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 17. The Court considers that the case at hand was not difficult to determine. Consequently, it takes the view that an overall period of over six years for one level of jurisdiction could not, in itself, be deemed to satisfy the “reasonable time” requirement in Article 6 § 1 of the Convention. 18. As to the applicant’s conduct, the Government did not claim that the applicant had contributed to any delays in the proceedings. The Court concludes, therefore, that no delays in the present case were attributable to the applicant. 19. The Court observes, on the other side, that substantial periods of inactivity, for which the Government have not submitted any plausible explanation, are attributable to the domestic authorities. First, the Court notes that the Government did not provide the Court with any reasons as to why the applicant’s case had not been examined until 30 January 2003. The only explanation offered by the Government concerned the hearing on 26 August 2002 when it was adjourned because the judge was busy in unrelated proceedings. Second, the Court notes that the Government’s explanations submitted to the Court primarily concerned the proceedings in respect of the applicant’s appeal and his requests to extend the time-limits for lodging it. However, these proceedings concerned only a very limited period of time which cannot, in the Court’s view, justify the overall length of the proceedings in which the applicant’s claim was determined. 20. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above). 21. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 22. The Court has examined the remainder of the applicant’s complaints as submitted by him. However, having regard to all the material in its possession, it finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 23. 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 24. The applicant claimed 1,000 euros (EUR) in respect of pecuniary damage and EUR 1,000 in respect of non-pecuniary damage. 25. The Government considered the claim for non-pecuniary damage to be reasonable. In respect of pecuniary damage the Government did not see any causal link between the claim and the violation found and suggested rejecting it. 26. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects the claim for pecuniary damage. On the other hand, the Court accepts that the applicant suffered distress, anxiety and frustration exacerbated by the unreasonable length of the proceedings. In this respect it awards the applicant EUR 1,000 as non-pecuniary damage, plus any tax that may be chargeable on this amount. B. Costs and expenses 27. The applicant did not make any claims for the costs and expenses incurred before the domestic courts and before the Court. 28. Accordingly, the Court does not award anything under this head. C. Default interest 29. 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 1. Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. 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 1,000 (one thousand euros), in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable on this amount; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 23 October 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. André WampachNina VajićDeputy RegistrarPresident

THIRD SECTION CASE OF ROBERT LESJAK v. SLOVENIA (Application no. 33946/03) JUDGMENT STRASBOURG 21 July 2009 FINAL 21/10/2009 This judgment may be subject to editorial revision. In the case of Lesjak v. Slovenia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Elisabet Fura-Sandström,Corneliu Bîrsan,Boštjan M. Zupančič,Alvina Gyulumyan,Egbert Myjer,Luis López Guerra, judges,and Santiago Quesada, Section Registrar, Having deliberated in private on 30 June 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 33946/03) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Mr Robert Lesjak (“the applicant”), on 14 October 2003. 2. The applicant was represented by Ms Mateja Končan Verstovšek, a lawyer practising in Celje. The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič, State Attorney-General. 3. The applicant alleged that his right to a trial within a reasonable time had been violated and that he did not have an effective remedy in this respect. 4. On 12 June 2007 the President of the Third Section decided to inform the Government of the application and to request them to submit information under Rule 54 § 2 (a) of the Rules of Court. Further to receipt of the information requested, the President, on 17 October 2008, decided to invite the Government to submit written observations on admissibility and merits of the case (Rule 54 § 2(b) of the Rules). It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3 of the Convention). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The facts of the case, as submitted by the parties, may be summarised as follows. A. The main proceedings 6. On 8 April 1995 the applicant was injured in a car accident. The perpetrator of the accident, I.R., had taken out insurance with the insurance company A. 7. On 18 October 1999 the applicant instituted civil proceedings against I.R. and the insurance company A. in the Celje District Court, seeking damages in the amount of 3,688,433 Slovenian tolars (SIT) (approximately 15,370 euros) (EUR) for the injuries sustained. 8. Between 29 November 2001 and 12 May 2006 the applicant lodged several written submissions and adduced evidence. 9. Between 15 December 2003 and 4 September 2006 the court held eight hearings, one of which was conducted at the site of the accident. It does not appear that any of the hearings were adjourned due to the applicant’s fault. 10. During the proceedings, the court also appointed two experts and requested an additional opinion from one of them. 11. After the last hearing in the case, the court delivered an interim judgment (vmesna sodba) determining the responsibility for the damage, which was served on the applicant on 25 September 2006. 12. On 9 October 2006 the applicant appealed to the Celje Higher Court. I.R. and the insurance company A also appealed. 13. On 9 May 2007 the Celje Higher Court allowed the applicant’s appeal in part and changed the first-instance court’s interim judgment. It found I.R. and the insurance company A responsible for 70% of the damage suffered due to the accident. 14. The judgment was served on the applicant on 18 May 2007. 15. On 13 June 2007 the insurance company A lodged an appeal on points of law with the Supreme Court. These proceedings are still pending. B. The proceedings under the 2006 Act 16. On 2 March 2007 the applicant lodged a supervisory appeal with the Celje District Court. In this supervisory appeal the applicant explained that the proceedings had started on 18 October 1999 and were still pending. As a consequence, his right to a hearing within a reasonable time had been violated. He requested that the proceedings be expedited and the decision be delivered immediately. 17. On 23 March 2007, referring to sections 5(1) and 6(4) of the Act on the Protection of the Right to a Trial without Undue Delay (“the 2006 Act”), the President of the Celje District Court replied to the supervisory appeal by explaining that the case file had been transferred to the Celje Higher Court on 20 March 2007. II. RELEVANT DOMESTIC LAW 18. The Act on the Protection of the Right to a Hearing without Undue Delay (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Gazette no. 49/2006- “the 2006 Act”) was passed by the Slovenian Parliament on 26 April 2006 and became operational on 1 January 2007. 19. The 2006 Act provides for remedies to expedite pending proceedings (a supervisory appeal and a motion for a deadline). In addition to these acceleratory remedies, the 2006 Act also provides the possibility to obtain redress through a compensatory remedy, namely by bringing a claim for just satisfaction. 20. As regards the acceleratory remedies, a claimant may, during the first- and second-instance proceedings, that is the proceedings before the regular courts, use a supervisory appeal if he or she considers that the court is unduly protracting the decision-making. If the president of the court dismisses the supervisory appeal or, inter alia, fails to respond to the claimant within two months, he or she can lodge a motion for a deadline with the court hearing the case. The motion for a deadline is dealt with by the president of the higher court. He or she shall decide on the motion for a deadline within fifteen days of receiving it. 21. As regards the present case, the following provisions of the 2006 Act are relevant: Section 6 - Decision on supervisory appeal “(1) If the supervisory appeal is manifestly unfounded having regard to the timetable for resolving the case concerned by the supervisory appeal, the president of the court shall dismiss the appeal by a ruling. (2) If the supervisory appeal does not contain all the requisite elements referred to in section 5(2) of this Act, the president of the court shall dismiss it by a ruling. No appeal shall lie against that ruling. (3) If no ruling as provided for in paragraphs 1 or 2 of this section is given, the president of the court shall, as part of his judicial management powers under the Judicature Act, immediately request the .... judge or president of a court panel (‘the judge’) to whom the case has been assigned for resolution to submit a report indicating the reasons for the duration of the proceedings not later than fifteen days after receiving the request of the president of the court or after obtaining the file, if necessary for drawing up the report. The report shall include a declaration in respect of the criteria referred to in section 4 of this Act and an opinion on the time-limit within which the case may be resolved. The president of the court may also require the judge to submit the case file if he considers that, in the light of the allegations of the party indicated in the supervisory appeal, its examination is necessary. (4) If the judge notifies the president of the court in writing that all relevant procedural measures will be performed or a decision issued within a time-limit not exceeding four months following the receipt of the supervisory appeal, the president of the court shall inform the party thereof and thus conclude the consideration of the supervisory appeal. (5) If the president of the court establishes that in view of the criteria referred to in section 4 of this Act the court is not unduly protracting the decision-making in the case, he shall dismiss the supervisory appeal by a ruling. (6) If the president of the court ... in view of the criteria referred to in section 4 of this Act, establishes that the court is unduly delaying the decision-making in the case, he shall, depending on the status and nature of the case and by a ruling, order a deadline for the performance of certain procedural measures, and may also order that the case be resolved as a priority owing to the circumstances of the case, particularly if the matter is urgent. If he orders that appropriate procedural measures be performed by the judge, he shall also set the time frame for their performance, which shall be no less than fifteen days and no longer than six months, and the appropriate deadline for the judge to report on the measures performed. (7) If the president of the court establishes that the undue delay in decision-making in the case is attributable to an excessive workload or an extended absence of the judge, he may order that the case be reassigned. He may also propose that an additional judge be assigned to the court or order other measures in accordance with the Judicial Service Act. ... Section 8 - Motion for a deadline “(1) If, under section 6(1) or (5) of this Act, the president of the court dismisses the supervisory appeal or fails to respond to the party within two months or fails to send the notification referred to in section 6(4) of this Act within the said time-limit or if appropriate procedural acts have not been performed within the time-limit set in the notification or ruling of the president of the court, the party may lodge a motion for a deadline on the grounds stated in section 5(1) of this Act with the court hearing the case. ... (3) The party may lodge an motion for a deadline within fifteen days of receiving the ruling or after expiry of the time-limits provided for in paragraph 1 of this section.” 22. As to the claim for just satisfaction, sections 15, 19 and 20 of the 2006 Act provide that for the party to be able to lodge a claim for just satisfaction two cumulative conditions must be satisfied. Firstly, during the first- and/or second-instance proceedings the applicant must have successfully availed himself of a supervisory appeal or have lodged a motion for a deadline, regardless of its outcome. In this connection section 15 provides, in so far as relevant: “(1) If the supervisory appeal lodged by the party has been upheld or a motion for a deadline has been lodged, the party may claim just satisfaction under the present Act. ...” 23. Secondly, the proceedings must have been “finally resolved” (pravnomočno končan postopek). The final resolution of the case refers in principle to the final decision against which no ordinary appeal lies. This would normally be the first, or if an appeal has been lodged, the second-instance court’s decision. 24. As regards proceedings before the Supreme Court, a claimant can use a supervisory appeal and a motion for a deadline with an aim to accelerate the proceedings. It would appear from the text of the 2006 Act that both are dealt with by the president of the Supreme Court. A claim for just satisfaction is not available in respect of the length of Supreme Court proceedings. The relevant part of the 2006 Act reads as follows: Section 5 - Supervisory appeal “(1) If a party considers that the court is unduly protracting the decision-making, he or she may lodge a supervisory appeal in writing before the court hearing the case; the decision thereon is taken by the .... president of the court (‘the president of the court’). ... Section 9 - Competence for decision-making ... (3) The president of the Supreme Court of the Republic of Slovenia shall have the competence to decide on the motion for a deadline concerning cases heard by the Supreme Court of the Republic of Slovenia. (4) Other judges may be assigned by the annual schedule of allocation to act in place of or together with the presidents of courts referred to in previous paragraphs for decision-making on motions for a deadline.” 25. For a more detailed presentation of the 2006 Act, see Žunič v. Slovenia, (dec.) no. 24342/04, 18 October 2007. 26. As regards possible outcome of Supreme Court proceedings, the Civil Procedure Act (Zakon o pravdnem postopku, Official Gazette no. 26/1999, in force since 14 July 1999) provides that, depending on the circumstances, the Supreme Court when upholding an appeal on points of law may remit the case for re-examination or vary the lower court’s judgment. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 27. The applicant complained that that the length of the civil proceedings had been excessive in breach of Article 6 § 1 of the Convention, which, as far as relevant, reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” A. Admissibility 1. The parties’ arguments 28. The Government argued that the applicant had failed to exhaust available domestic remedies. They maintained that in the circumstances of his case section 25 of the 2006 Act, which concerns terminated proceedings, was not applicable, but the applicant should instead use the remedies normally available under the 2006 Act. They submitted that the president of the court’s reply of 23 March 2007 meant that the supervisory appeal had been upheld. The supervisory appeal was also successful, as the procedural measures were carried out within the time-limit set in section 6, paragraph 4, of the 2006 Act. The applicant therefore fulfilled one of the two conditions for lodging a “just satisfaction claim”. As regards further remedies available, the Government submitted two contradictory set of arguments. 29. In their main set of observations, the Government pointed out that only an interim judgment had been issued in the case. It concerned only the grounds for damages, which was a basis of the applicant’s claim. On the day the 2006 Act became operational this part of the case was pending before the second-instance court and the proceedings subsequently continued on appeal on points of law, where they are currently pending. Once the Supreme Court decides on the appeal on points of law, the case file will be sent to the first-instance court to decide on the remaining part of the claim concerning the amount of compensation. Subsequently, appeals to the second-instance court will again be available to the parties. 30. The Government submitted that the case was, on 1 January 2007, therefore far from being “finally resolved”. As a consequence, the applicant should first avail himself of the acceleratory remedies in the proceedings before the Supreme Court, namely supervisory appeal and motion for a deadline, both of which were to be decided by the president of the Supreme Court. Subsequently, in the forthcoming first- and possibly also second-instance proceedings he will again have the opportunity to use acceleratory remedies and ultimately, once the proceedings are “finally resolved”, he will be able to lodge a “just satisfaction claim” in respect of the allegedly unreasonable length of the proceedings. 31. In their further observations, the Government argued that the second condition for the lodging of the “just satisfaction claim” had already been fulfilled on 18 May 2007. They submitted that the case had become “finally resolved” on that date and that the applicant should have lodged a “just satisfaction claim” within nine months of the date. As regards the Supreme Court’s proceedings, they reiterated that acceleratory remedies were available to the applicant. 32. Finally, the Government explained that the main idea of the 2006 Act was to ensure compliance with the reasonable time requirement rather than providing compensation. They also submitted that in Slovenia the key problem in terms of excessive length was the proceedings at first instance, while the second-instance proceedings and the proceedings before the Supreme Court did not normally last an unreasonably long time. 33. The applicant disputed the Government’s arguments. He argued that there were no means available to accelerate proceedings before the Supreme Court. He further submitted that the delays in proceedings were a systemic problem and that the 2006 Act made it impossible for the parties to proceedings, which had lasted an unreasonably long time, to obtain just satisfaction. 2. The Court’s assessment 34. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring their case against the State before an international judicial organ to use first the remedies provided by the national legal system. The rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system. (see, among many other authorities, Aksoy v. Turkey, 18 December 1996, § 51, Reports of Judgments and Decisions 1996-VI). 35. The Court reiterates that remedies available to a litigant at domestic level for raising a complaint about the length of proceedings are “effective” within the meaning of Article 13 of the Convention if they “[prevent] the alleged violation or its continuation, or [provide] adequate redress for any violation that [has] already occurred” (see Kudła v. Poland [GC], no. 30210/96, § 158, ECHR 2000-XI). Article 13 therefore offers an alternative: a remedy is “effective” if it can be used either to expedite a decision by the courts dealing with the case, or to provide the litigant with adequate redress for delays that have already occurred (ibid., § 159). The same is necessarily true of the concept of “effective” remedy within the meaning of Article 35 § 1 (see Mifsud v. France (dec.) [GC], no. 57220/00, ECHR 2002-VIII). 36. However, for countries where length of proceedings violations already exist, a remedy designed to expedite proceedings – although desirable for the future – may not be adequate to redress a situation in which the proceedings have clearly already been excessively long (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 185, ECHR 2006‑...). 37. As regards Slovenia, the Court has taken the view that the mere fact that an applicant had lodged his or her application before the implementation of the 2006 Act did not absolve him or her from exhausting the remedies available under the 2006 Act (see Korenjak v. Slovenia (dec.) no. 463/03, §§ 63-71, 15 May 2007). The Court also found that the aggregate of remedies provided by the 2006 Act in cases of excessively long proceedings pending at first and second instance was effective (see Korenjak, cited above, § 62). The applicants were therefore required to make use of the acceleratory remedies if the proceedings were pending before the first- or second-instance court (ibid.), and were also required to use the compensatory remedy provided that, after exhausting the acceleratory remedies, they had reasonably prompt access to it (see Žunič v. cited above, §§ 43-55; see also Nezirovič v. Slovenia (dec.), no. 16400/06, 25 November 2008). 38. In the present case, the Court observes that, on 1 January 2007, the day the 2006 Act came into force, the applicant’s case was pending before the second-instance court in the part which had been decided by the first-instance court, namely the part concerning the responsibility for the damages. The second-instance court delivered its judgment on 9 May 2007. An appeal on points of law was lodged on 13 June 2007 and since then the proceedings have been pending before the Supreme Court. As regards the possible outcome of the latter proceedings, the Court notes that the Supreme Court could theoretically reject the applicant’s claim as a whole and that would lead to a final resolution of the case; it could also remit the case for-re-examination (see paragraph 26 above). These scenarios, however, have not been mentioned by the Government, who have submitted instead that after the Supreme Court renders a decision the remaining part of the claim concerning the amount of damages to be awarded to the applicant would have to be examined by the regular court. 39. The Court notes that the Government argued that the applicant had effective remedies at his disposal in respect of, first, the pending Supreme Court proceedings, and, second, the previous and forthcoming proceedings before the regular courts. (a) Assessment of the remedies in respect of the length of proceedings before the Supreme Court 40. Since the 2006 Act entered into force, the Court has undertaken an examination of the effectiveness, within the meaning of Articles 13 and 35 § 1, of the new remedies available in respect of the length of the first- and second-instance proceedings (see paragraph 37 above). It found that the aggregate of these remedies, namely a supervisory appeal and a motion for a deadline together with a “claim for just satisfaction”, was effective in the sense that the remedies were in principle capable both of preventing the continuation of the alleged violation and of providing adequate redress for any violation that had already occurred (see case-law cited in paragraph 37 above). The Court notes that this conclusion was reached only in respect of the remedies available in relation to the proceedings before the first- and second-instance court and that the level of protection available in respect of the proceeding before the Supreme Court is significantly lower. 41. In this connection, the Court observes that in proceedings before the Supreme Court a claimant can use a supervisory appeal and a motion for a deadline. However, unlike in proceedings before the regular courts where a motion for a deadline constitutes, in substance, an appeal to a higher instance, in the proceedings before the Supreme Court both remedies are dealt with by the president of that court – that is the court responsible for the conduct of the proceeding to which the remedy relates. The Court further observes that no compensation can be claimed in respect of the length of Supreme Court proceedings. 42. The Court found in the Lukenda judgment that the request for supervision, which, although then regulated only by the Judicature Act, was a remedy of the same nature as the present supervisory appeal, was ineffective. It noted that this was a remedy in the framework of judicial administration and not within court proceedings; that it had no binding effect on the court concerned; and that since there was no right of appeal this remedy could not have had any significant effect on expediting the proceedings as a whole (see Lukenda, §§ 24, 61-64 and the case-law cited therein). 43. The Court finds that with some improvements brought in by the 2006 Act, in particular as regards the criteria for assessing the reasonableness of the length of proceedings and indication of certain deadlines, the two acceleratory remedies available in Supreme Court proceedings remain, in substance similar to the request for supervision, which was found not to be an effective remedy in the Lukenda judgment. 44. The Court moreover notes that, unlike the proceedings before the lower courts, Supreme Court proceedings do not normally involve various procedural steps; that they concern only the examination of questions of law, and that no hearing is held in them. In absence of any evidence submitted by the Government, the Court finds it difficult to foresee what the practical effect of the mentioned remedies would be on the speed with which Supreme Court proceedings are conducted. 45. In conclusion, having regard to the nature of the acceleratory remedies provided in the 2006 Act in relation to proceedings before the Supreme Court, and to the fact that they are not available in combination with any compensatory remedy, the Court is not convinced that they can provide effective redress in respect of the length of Supreme Court proceedings and cannot require the applicant to use them. 46. Notwithstanding the above conclusion, the Court notes that the present application does not concern merely the Supreme Court proceedings, but a situation which has developed over a long period involving three levels of jurisdiction. Regardless of the effect the above acceleratory remedies would have on the proceedings before the Supreme Court, had the applicant used them, the Court does not consider that they could have had any significant effect on the length of the proceedings as a whole (see Holzinger v. Austria (no. 1), no. 23459/94, § 22, ECHR 2001‑I, and Bako v. Slovakia (dec.), no. 60227/00, 15 March 2005). (b) Assessment of the remaining remedies available to the applicant 47. The Court observes that before the new legislation had taken effect, the applicant’s case had already been pending for more than seven years, most of that time before the first-instance court. Since there were no effective remedies available to the applicant during that period (see Lukenda, cited above), the only way to remedy the situation was to subsequently provide a compensatory remedy for the damage suffered as a result of the delays (see Scordino, cited above, § 185). In this connection, the Court notes that since 1 January 2007 individuals have had the opportunity to avail themselves of a compensatory remedy under the two conditions set out in the 2006 Act (see paragraphs 22 and 23 above). The Government asserted that the applicant in the present case had successfully availed himself of the supervisory appeal, which the applicant did not dispute. In view of the parties’ submissions concerning the second condition for lodging a “just satisfaction claim”, the Court will proceed on the assumption that the applicant successfully availed himself of the supervisory appeal and by doing so the first condition was satisfied (ibid.). As regards the second condition, that is the “final resolution of the case”, the Court reiterates its previous finding in the Žunič case, that: “50. .... because of this condition, those who believe that they have suffered a violation of their right to a trial within a reasonable time may be obliged to wait even further before being able to seek relief. Therefore, ..., the Court finds it indispensable that the proceedings, which have already been long, are finally resolved particularly promptly following the exhaustion of the accelerative remedies. Indeed, it cannot be ruled out that the question of a reasonably prompt access to a just satisfaction claim will affect whether this remedy, alone or in combination with the accelerative remedies, is effective in respect of the delays which had already occurred (see Mifsud, cited above, and, mutatis mutandis, Scordino, cited above, § 195).” 48. As regards the question of when, according to this second condition, the compensatory remedy should be available to the applicant in the present case, the Court must first address the Government’s argument that the applicant’s case has already been “finally resolved” on 18 May 2007. This argument conflicts with the initial observations of the Government and was intended to support the assertion that the applicant had the opportunity to lodge, within nine months of 18 May 2007, a “just satisfaction claim” in respect of the delays which had occurred beforehand (see paragraphs 29-31 above). The Court notes that, if that were true, it would mean that the “just satisfaction claim” was available also in cases which had been “finally resolved” only in the part concerning the basis of the claim, despite the fact that the remaining part was still pending. 49. In this connection, the Court reiterates that it is incumbent on the Government pleading non-exhaustion to demonstrate that a remedy they wish to rely on was an effective one, available in theory and in practice at the relevant time. The availability of any such remedy must be sufficiently certain in law as well as in practice (see Vernillo v. France, 20 February 1991, § 27, Series A no. 198). 50. It is true that the Court has been prepared to allow for a certain level of flexibility in applying the requirements that Governments need to fulfil when relying on the non-exhaustion rule in respect of the domestic remedies adopted with a view to providing redress for undue delays in domestic proceedings (see Scordino, cited above, § 189-90; Žunič, cited above, § 37; Korenjak, cited above, § 73; Charzyński v. Poland no. 15212/03 (dec.), §§ 40-41, ECHR 2005-V; and Slaviček v. Croatia (dec.), no. 20862/02, ECHR 2002-VII). However, the Court considers that an interpretation by the Government of the domestic legislation which does not have a sufficiently clear provision as to the availability of the remedy in a certain situation cannot be sufficient for it to conclude that that remedy was actually available to the applicant. That is particularly so if no domestic jurisprudence providing such a statutory interpretation is available to the Court. 51. Having regard to the fact that there is no explicit provision in the 2006 Act addressing this issue; that the Government has not supplied any domestic jurisprudence in support of their argument; and that their submissions in this respect are conflicting (see paragraphs 29-31), the Court considers that the Government has failed to demonstrate that a “just satisfaction claim” was available to the applicant immediately after the basis of the claim had been “finally resolved”. 52. The Court will therefore continue on the assumption that the applicant will be able to seek just satisfaction only after his whole case is “finally resolved”. In view of the principle set out in the Žunič case, the Court therefore needs to examine whether the present application is premature, which would be the case if the applicant could be said to have reasonably prompt access to the “just satisfaction claim”. 53. The Court notes that in the Žunič case, where the proceedings were pending before the first-instance court, the Court concluded that, in view of the progress made in the proceedings, the applicant should have soon been able to use the compensatory remedy. However, unlike in that case, the applicant in the present case has already been waiting for two years for the proceedings before the Supreme Court to be concluded. These proceedings are currently still pending. The applicant may also have to wait further for the proceedings before the regular court, that is the first-instance and, if an appeal is lodged, the second-instance court, to be conducted in respect of the remaining part of the claim in order to be able to lodge a “just satisfaction claim”. In these circumstances the Court finds no reasonable grounds to assume that a “just satisfaction claim” has been available to the applicant reasonably promptly. The mere fact that the applicant would be able to reuse acceleratory remedies in forthcoming proceedings, provided that they continue before the regular courts, cannot override the above considerations. (c) Conclusion 54. The Court finds that the new legislation, namely the 2006 Act, does not afford the applicant a legal remedy which could be considered effective in respect of the delays that have allegedly occurred in the impugned proceedings so far. 55. More generally, it finds first that the 2006 act does not provide for an effective remedy in respect of alleged delays in Supreme Court proceedings. Second, it notes that associating access to a “just satisfaction claim” with the “final resolution” of the case not only excludes Supreme Court proceedings but may in cases such as the present one delay the availability of that remedy to the extent that is not compatible with the Convention’s requirements. Moreover, this rule makes the application of the new remedies complicated as well as uncertain. As a result, an assessment of the issue of whether a particular applicant has prompt access to a “just satisfaction claim” unavoidably involves a degree of speculation and depends on the stage at which domestic proceedings are pending at the time the case is considered by the Court. 56. In conclusion, as this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds, it must be declared admissible. B. Merits 57. The applicant argued that the length of the proceedings was unreasonable in his case. The Government did not submit any arguments in respect of the merits of the complaint under Article 6, despite being invited to do so. 58. The Court observes that the period to be taken into consideration began on 18 October 1999, the day the applicant instituted proceedings with the Celje District Court, and has not yet ended. The relevant period has therefore lasted over nine years and seven months at three levels of jurisdiction. 59. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 60. The Court would emphasise, as it did in number of its previous rulings concerning the implementation of the 2006 Act, that the subsidiary principle is one of the most important principles for the functioning of the Convention system. Having examined all the material submitted to it, and having regard to its case-law on the subject, it considers that in the instant case the length of the proceedings, in particular before the first-instance court, was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 61. In substance, the applicant further complained that the remedies available for excessively lengthy court proceedings in Slovenia were ineffective. Article 13 of the Convention reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 62. 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 63. The Government submitted that under the 2006 Act the applicant had at his disposal various effective legal remedies in respect of the alleged breach of the “reasonable time” requirement. 64. The applicant disputed that argument. 65. The Court reiterates that the standards of Article 13 require a party to the Convention to guarantee a domestic remedy allowing the competent domestic authority to address the substance of the relevant Convention complaint and to award appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision (see Chahal v. the United Kingdom, judgment of 15 November 1996, Reports of Judgments and Decisions 1996‑V, § 145). The Court again observes that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system (see paragraph 34 above). 66. In the present case the Government have failed to show that the 2006 Act offered the applicant an effective remedy (see paragraphs 34 to 55 above). As regards the remedies available prior to the implementation of the 2006 Act, the Government have also failed to submit anything that would lead the Court to a different conclusion from the one reached in earlier cases in which these remedies were considered ineffective (see Lukenda, cited above, §§ 84 to 88) 67. Accordingly, the Court considers that in the present case there has been a violation of Article 13 on account of the lack of a remedy under domestic law whereby the applicant could have obtained a ruling upholding his right to have his case heard within a reasonable time, as set forth in Article 6 § 1. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 68. 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 69. The applicant claimed EUR 8,000 in respect of non-pecuniary damage. 70. The Government did not comment on the claim. 71. The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 4,800 under that head. B. Costs and expenses 72. The applicant also claimed SIT 147,132, which is approximately EUR 600, for the costs and expenses incurred before the Court. 73. The Government did not comment on the claim. 74. 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, the applicant submitted his claim for costs and expenses in the application form and this claim therefore related only to the preparation of the application. The Government, although having an opportunity to reply, has not disputed the claim and the Court considers it reasonable to award the sum of EUR 600 for the proceedings before the Court. C. Default interest 75. 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 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 13 of the Convention; 4. 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, the following amounts: (i) EUR 4,800 (four thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 600 (six hundred euros), plus any tax that may be chargeable to the applicant, 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 applicant’s claim for just satisfaction. Done in English, and notified in writing on 21 July 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaJosep CasadevallRegistrarPresident

SECOND SECTION CASE OF TÜRKAN v. TURKEY (Application no. 33086/04) JUDGMENT STRASBOURG 18 September 2008 FINAL 18/12/2008 This judgment may be subject to editorial revision. In the case of Türkan v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Antonella Mularoni,Ireneu Cabral Barreto,Danutė Jočienė,Dragoljub Popović,Nona Tsotsoria,Işıl Karakaş, judges,and Sally Dollé, Section Registrar, Having deliberated in private on 28 August 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 33086/04) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Mahfuz Türkan (“the applicant”), on 9 July 2004. 2. The applicant was represented by Ms K. Doğru, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent. 3. The applicant alleged that he had been subjected to ill-treatment while in police custody and that there were no effective remedies in domestic law in respect of his grievances under Articles 3, 6 and 13 of the Convention. 4. On 11 September 2007 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1968 and lives in Batman. 6. At the material time he was working at a tea shop at the Esenler Bus Terminal in Istanbul. On 5 July 1998 he was arrested by police officers for his alleged involvement in a fight and causing a disturbance while drunk. He was then taken to the police station inside the terminal building. 7. The police officers allegedly covered the applicant’s head with his coat and started kicking, punching and beating him. They strangled him and banged his head against the wall. They also allegedly threatened the applicant and swore at him. 8. The applicant was released the next day without being brought before the public prosecutor. 9. On 8 July 1998 the applicant applied to the Human Rights Foundation of Turkey for the treatment of his injuries resulting from his ill-treatment in police custody. His symptoms included pain in the left side of the chest and back, and restricted movement of the left arm. 10. On 13 July 1998 the applicant underwent a full bone scintigraphy (scan) at the Marmara Nuclear Medicine Centre. The scintigraphy report concluded that there were hyperactive areas in the soft tissue of the sixth left rib, left shoulder, right knee, ankles and cranium (occipital[1] and left temporo-parietal[2] bones). The report noted that the symptoms were probably the result of physical trauma. 11. On 21 July 1998 the applicant filed a petition with the Eyüp Chief Public Prosecutor’s Office complaining about the ill‑treatment he had suffered at the hands of the police officers at the terminal building. 12. On 22 July 1998 a public prosecutor from the Eyüp Chief Public Prosecutor’s office took statements from the applicant. The applicant reiterated his complaints and described the police officers who had ill‑treated him. He then asked the public prosecutor to send him for a forensic medical examination and to bring the police officers to justice. At the request of the public prosecutor, the applicant was taken to the Forensic Medicine Institute where an expert examined the applicant and requested an X-ray as the applicant complained about pain in his skull and chest. 13. On 31 July 1998 the Eyüp Public Prosecutor took statements from the three police officers who had allegedly ill-treated the applicant. The police officers denied the allegations made by the applicant and claimed that the bruising found on his body could have been caused by other persons with whom he had fought. 14. On 7 August 1998 the Eyüp Public Prosecutor instituted criminal proceedings in the Eyüp Criminal Court pressing charges against the three police officers for inflicting ill-treatment on the applicant in violation of Article 245 of the former Criminal Code. 15. According to a report dated 13 October 1998 prepared by doctors from the Human Rights Foundation, the findings of the above-mentioned medical examinations were compatible with the applicant’s account of the use of physical violence against him. 16. At a hearing on 24 November 1998, the Eyüp Criminal Court heard evidence from the applicant and the accused police officers. Although the accused denied the allegations of ill-treatment, the applicant gave a detailed description of the treatment he had suffered while in their custody. The court then sent the applicant for a medical examination at the Eyüp Forensic Medicine Institute. After noting all the findings in the previous reports and radiological examinations, the institute referred the applicant to the Committee of Experts of the Forensic Medicine Institute for a complete report. 17. On the same day the applicant filed a petition with the Eyüp Criminal Court seeking leave to become a third-party intervener in the criminal proceedings against the police officers who had ill-treated him. 18. On 14 December 1998 the Batman Assize Court heard evidence from the applicant at the request of the Eyüp Criminal Court. The applicant reiterated his complaints and asked the judicial authorities to bring the police officers to justice. 19. Meanwhile, on 9 August 1999 the Istanbul Provincial Police Discipline Board, composed of the Governor of Istanbul, four senior police directors and a member of the legal service of the Governor’s office, decided not to impose any punishment on the three police officers on the ground that there was insufficient evidence that they had ill-treated the applicant. 20. In a report dated 22 November 2000, the Nuclear Medicine Department of the Cerrahpaşa Medical Faculty opined that the findings in the applicant’s scintigraphy reports were the result of physical trauma. 21. On 20 December 2000 the Committee of Experts of the Forensic Medicine Institute submitted their report, which confirmed the previous medical findings that the applicant’s body bore signs of soft tissue bruising caused by physical trauma. It further stated that the applicant’s medical condition at the relevant time was sufficient to render him unfit for work for five days. 22. In her petition dated 26 April 2001, the applicant’s legal representative asked the Eyüp Criminal Court to characterise the acts of the accused police officers as torture falling within the scope of Article 243 of the now defunct Criminal Code 23. On 21 December 2000 a law (Law no. 4616) on conditional release was enacted. This law provided for the suspension of the substantive proceedings or of the execution of sentences in respect of crimes committed before 23 April 1999 and for which the maximum penalty did not exceed ten years’ imprisonment. Section 5 (a) of Law no. 4616 stipulated that the execution of sentences in respect of the offence proscribed by, inter alia, Article 243 of the former Criminal Code could not be suspended. 24. On 9 October 2001 the Eyüp Criminal Court held that the criminal proceedings against the police officers should be suspended and subsequently discontinued if no offence of the same or a more serious kind was committed by the offenders within a five-year period, in accordance with that law. The applicant was notified of this decision on 29 December 2003. 25. On the same day the applicant challenged the decision before the Eyüp Assize Court, arguing that the proceedings should be continued and that the accused police officers’ acts should be characterised as torture within the meaning of Article 243 of the Criminal Code. 26. On 19 January 2004 the Eyüp Assize Court dismissed the applicant’s appeal and upheld the decision of the criminal court. II. RELEVANT DOMESTIC LAW AND PRACTICE 27. The relevant provisions of the former Criminal Code, in force at the time of the events, read as follows: Article 243 “Any ... public official who, in order to extract a confession of guilt in respect of a criminal offence, tortures or ill-treats any person, engages in inhuman conduct or violates human dignity, shall be punished by up to five years’ imprisonment and disqualified from holding public office temporarily or for life. Where such conduct causes death, the sentence incurred under Article 452 (...) shall be increased by between one third and one half.” Article 245 “Any law enforcement officer ... who, in the course of duty ... and in circumstances other than those prescribed by law ..., ill-treats, injures or strikes a person or does them bodily harm shall be sentenced to between three months’ and three years’ imprisonment and temporarily barred from public service. ...” 28. Article 10 of the Directive on Apprehension, Arrest and Taking of Statements [from Suspects] (dated 1 October 1998) states that when someone is placed in custody, or force has been used against that person, a medical examination must be carried out with a view to determining the state of health of the individual at the time of arrest. THE LAW I. ADMISSIBILITY 29. The Government argued that the applicant had failed to exhaust the domestic remedies available to him within the meaning of Article 35 § 1 of the Convention. In this connection, they submitted that the applicant had not availed himself of the civil and administrative law remedies which could have provided reparation for the harm he had allegedly suffered. 30. The Court reiterates that it has already examined and rejected the Government’s preliminary objections in similar cases (see, in particular, Karayiğit v. Turkey (dec.), no. 63181/00, 5 October 2004). It finds no particular circumstances in the instant case which would require it to depart from its findings in the above-mentioned case. It therefore rejects the Government’s preliminary objection. 31. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible. II. ALLEGED VIOLATION OF ARTICLES 3, 6 AND 13 OF THE CONVENTION 32. The applicant complained that he had been subjected to various forms of ill-treatment and that there were no effective remedies for his complaints. He relied on Articles 3, 6 and 13 of the Convention, which provide, as relevant: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 6 § 1 “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Submissions of the parties 1. The applicant 33. The applicant alleged that he had been subjected to severe ill‑treatment by the police officers during his detention at the Esenler bus terminal police station. He claimed that the officers had kicked, punched and strangled him and banged his head against the wall. He referred to the findings contained in the medical reports in support of his allegations. 2. The Government 34. The Government contested these claims. They maintained that the applicant had been arrested because he had been involved in a fight with other people at the bus terminal. They alleged that the bruising on his body could have occurred during the fight. They further submitted that there was no medical evidence proving that he had been subjected to ill-treatment at the police station and that therefore his allegations were unsubstantiated. B. The Court’s assessment 1. General principles 35. The Court reiterates that Article 3 of the Convention ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted. It also enshrines one of the basic values of the democratic societies making up the Council of Europe. The object and purpose of the Convention as an instrument for the protection of individual human rights requires that these provisions be interpreted and applied so as to make its safeguards practical and effective (see Avşar v. Turkey, no. 25657/94, § 390, ECHR 2001-VII (extracts)). 36. The Court further reiterates that, where an individual is taken into custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused and to produce evidence casting doubt on the veracity of the victim’s allegations, particularly if those allegations are backed up by medical reports. Failing this, a clear issue arises under Article 3 of the Convention (see Çolak and Filizer v. Turkey, nos. 32578/96 and 32579/96, § 30, 8 January 2004; Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V; Aksoy v. Turkey, cited above, § 61; Ribitsch v. Austria, judgment of 4 December 1995, Series A no. 336, p. 26, § 34). 37. The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact where this is not rendered unavoidable by the circumstances of a particular case (see, among other authorities, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). However, where allegations are made under Article 3 of the Convention, the Court must conduct a particularly thorough scrutiny (see Ülkü Ekinci v. Turkey, no. 27602/95, § 135, 16 July 2002) and will do so on the basis of all the material submitted by the parties. 38. In assessing evidence, the Court has adopted the standard of proof “beyond reasonable doubt” (see Orhan v. Turkey, no. 25656/94, § 264, 18 June 2002, and Avşar, cited above, § 282). Such proof may, however, follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ülkü Ekinci, cited above, § 142). 39. Furthermore, where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII). 40. Lastly, the Court reiterates that where an individual raises an arguable claim that he has been seriously ill-treated by the police or other such agents of the State unlawfully and in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. This investigation should be capable of leading to the identification and punishment of those responsible. If this were not the case, the general legal prohibition of torture and inhuman and degrading treatment and punishment, despite its fundamental importance, would be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports of Judgments and Decisions 1998‑VIII, § 102). 2. Application of the above principles to the circumstances of the present case (a) Alleged ill-treatment suffered by the applicant 41. In the instant case, the Court finds it regrettable that the applicant was not taken for a medical examination before being taken into custody at the Esenler bus terminal police station. Such an examination would have been appropriate, particularly bearing in mind that the applicant had allegedly been in a fight with other persons. Such a report could also have provided clarification regarding the possibility that third parties might have contributed to the applicant’s condition. 42. Furthermore, in cases of this kind, it is all the more important that the arrested person is medically examined before being placed in police custody. This would not only ensure that the person is fit to be questioned in police custody but would also enable the respondent Government to discharge their burden of providing a plausible explanation for those injuries. In this connection, the Court notes that a medical examination, together with the right of access to a lawyer and the right to inform a third party of the detention, constitute fundamental safeguards against the ill-treatment of detained persons which should apply as from the very outset of deprivation of liberty, regardless of how it may be described under the legal system concerned (apprehension, arrest, etc.) (see the 2nd General Report of the European Committee for Prevention of Torture, CPT/Inf/E (2002) 1 - Rev. 2006, § 36). The Court observes that three months after the events in the present case, Turkish legislation was aligned with these CPT standards, when the medical examination of suspects on being taken into custody became a requirement through the Directive on Apprehension, Arrest and Taking of Statements dated 1 October 1998 (see paragraph 28 above). 43. Accordingly, in view of the national authorities’ failure to conduct such an examination before placing the applicant in detention, the Government cannot rely on that failure in their defence and claim that the injuries in question pre-dated the applicant’s detention in police custody. The Court may thus assume that the applicant was in good health prior to his being taken into custody (see, mutatis mutandis, Abdulsamet Yaman v. Turkey, no. 32446/96, § 45, 2 November 2004). 44. That being so, the Court notes that, following his release from custody, the applicant sought medical help from the Human Rights Foundation of Turkey after allegedly being ill-treated by the police officers. He then underwent four medical examinations by doctors from the Human Rights Foundation, the Marmara Nuclear Medicine Institute, the Nuclear Medicine Department of the Cerrahpaşa Medical Faculty and a Committee of Experts of the Forensic Medicine Institute, who all concluded that the injuries found on his body had been caused by physical trauma and were capable of rendering him unfit for work for five days (see paragraphs 9, 15, 20 and 21 above). In the Court’s opinion, the findings contained in those reports are consistent with the applicant’s allegation of having been subjected to beatings, kicking and punching. These findings are also sufficiently serious to amount to ill‑treatment within the meaning of Article 3 (see, among other authorities, A. v. the United Kingdom, judgment of 23 September 1998, Reports 1998-VI, p. 2699, § 21, and Ribitsch, cited above, pp. 9 and 26, §§ 13 and 39). 45. It therefore needs to be ascertained whether the Government have provided a plausible explanation of how those injuries were caused and produced evidence casting doubt on the veracity of the victim’s allegations. 46. The Court notes that the Government did not challenge the findings contained in the above-mentioned medical reports. They claimed, however, that the physical trauma in question could have occurred during the fight between the applicant, who was drunk, and other persons prior to his arrest by the police officers. They also submitted that the applicant’s allegations had not been corroborated by any evidence. Similar conclusions had also been reached by the domestic authorities in charge of the disciplinary investigation (see paragraph 19 above). 47. The Court reiterates that, in respect of a person deprived of liberty, recourse to physical force which has not been made strictly necessary by the individual’s own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 (see Ribitsch, cited above, § 38). Furthermore, the use of force in the context of an arrest, even if it entails injury, may fall outside Article 3, particularly in circumstances resulting from an applicant’s own conduct (see Berliński v. Poland, nos. 27715/95 and 30209/96, § 64, 20 June 2002). In this connection, the Court takes note of the allegation made by the police officers that the applicant was reckless, drunken and aggressive on the day of the incident (see paragraph 6 above). 48. However, considering the absence of any arrest protocol indicating the conditions of the applicant’s arrest and a medical report showing his state of health at that point, the Court does not find it convincingly proved that the injuries suffered by the applicant were inflicted by persons with whom he had allegedly had a fight. In this context, the Court attaches great importance to the fact that the applicant, in his statements to the investigating authorities (11, 12, 16, 17, 18 and 25), was unequivocal in his account that he had been ill‑treated by police officers while in custody at the Esenler terminal police station. He gave a detailed account of the treatment he had suffered and a description of the police officers who had inflicted the ill‑treatment (see paragraph 12 above). Furthermore, the investigating authorities did nothing to determine the cause of the physical trauma suffered by the applicant. In view of the police officers’ denials and the defence submissions that the injuries in question could have been inflicted by the persons with whom the applicant had allegedly had a fight, the judicial authorities could have taken statements from those persons and any possible witnesses at the bus terminal with a view to verifying such allegations. 49. The Court reiterates that the State is responsible for the welfare of all persons held in detention. Such persons are in a vulnerable situation and the authorities have a duty to protect them. Bearing in mind the authorities’ obligation to account for injuries caused to persons within their control in custody, and in the absence of any convincing explanation concerning the origin of the physical trauma noted in the four medical reports mentioned above, the Court considers that the Government have failed to provide a plausible explanation of how the injuries to the applicant were caused. It therefore concludes that the physical trauma in question was the result of treatment for which the Government bore responsibility. 50. There has accordingly been a substantive violation of Article 3 of the Convention. (b) Alleged ineffectiveness of the domestic remedies 51. The Court notes that subsequent to the complaints of ill-treatment lodged by the applicant with the Eyüp Chief Public Prosecutor’s office (see paragraph 11 above), the authorities commenced an investigation into his allegations and ultimately pressed charges against three police officers for inflicting ill-treatment on him. However, the Eyüp Criminal Court suspended the proceedings by virtue of Law no. 4616. These proceedings will subsequently be discontinued if no offence of the same or a more serious kind was committed by the offenders within a five-year period, in accordance with that law. The applicant challenged that decision before the Eyüp Assize Court, albeit unsuccessfully (see paragraphs 26 and 27 above). 52. The Court reiterates that the rights enshrined in the Convention are practical and effective, and not theoretical and illusory. Therefore, investigations of the present kind must be able to lead to the identification and punishment of those responsible. In the instant case, however, the proceedings in question did not produce any concrete result owing to the qualification of the alleged offence committed by the police officers as ill‑treatment, within the meaning of Article 245 of the Criminal Code, and the suspension of the criminal proceedings against them in accordance with Law no. 4616 (see paragraphs 14 and 23 above). Thus, the application of the said law to the present case created virtual impunity for the perpetrators of the acts of violence, irrespective of the evidence against them (see, mutatis mutandis, Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 147, ECHR 2004‑IV, and Abdülsamet Yaman, cited above § 59. 53. Consequently, the Court considers that the criminal-law system, as applied in the applicant’s case, has proved to be far from rigorous and has had no dissuasive effect capable of ensuring the effective prevention of unlawful acts such as those complained of by the applicant (see, mutatis mutandis, Okkalı v. Turkey, no. 52067/99, § 78, ECHR 2006‑...). 54. In the light of the foregoing and given the authorities’ failure to pursue the criminal proceedings against the police officers leading to the determination of their responsibility and to their punishment in the event of a conviction, the Court does not consider that the above proceedings can be described as sufficiently thorough and effective to have met the procedural requirements of Article 3 of the Convention. 55. There has accordingly been a procedural violation of this provision. 56. In these circumstances, the Court considers that no separate issue arises under Articles 6 and 13 of the Convention (see Timur v. Turkey, no. 29100/03, §§ 35‑40, 26 June 2007). III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 57. 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 58. The applicant claimed 5,000 euros (EUR) in respect of pecuniary damage and EUR 10,000 for non-pecuniary damage. 59. The Government contended that the amount claimed was excessive and that any award to be made under this head should not lead to unjust enrichment. 60. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, having regard to the violation found and ruling on an equitable basis, it awards the applicant EUR 5,000 in respect of non-pecuniary damage. B. Costs and expenses 61. The applicant also claimed EUR 4,500 for costs and expenses incurred before the Court. 62. The Government submitted that in the absence of any supporting documents, the claim should be dismissed. 63. 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 were reasonable as to quantum. In the present case, the Court notes that the applicant solely referred to the Istanbul Bar Association’s scale of fees and failed to submit any documents in support of his claims. The Court therefore makes no award under this head (see Balçık and Others v. Turkey, no. 25/02, § 65, 29 November 2007). C. Default interest 64. 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 1. Declares the application admissible; 2. Holds that that there has been a violation of Article 3 of the Convention both under its substantive and procedural aspects; 3. Holds that there is no need to examine separately the complaints under Articles 6 and 13 of the Convention; 4. 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 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non‑pecuniary damage, to be converted into Turkish liras 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 amount 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 applicant’s claim for just satisfaction. Done in English, and notified in writing on 18 September 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Sally DolléFrançoise TulkensRegistrarPresident [1] Occipital bones are on the back of the head [2] The left side bone of the skull

FIRST SECTION CASE OF N.A. v. NORWAY (Application no. 27473/11) JUDGMENT STRASBOURG 18 December 2014 FINAL 20/04/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of N.A. v. Norway, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Isabelle Berro-Lefèvre, President,Elisabeth Steiner,Khanlar Hajiyev,Mirjana Lazarova Trajkovska,Erik Møse,Ksenija Turković,Dmitry Dedov, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 25 November 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 27473/11) against the Kingdom of Norway lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Norwegian national, Ms N.A. (“the applicant”), on 3 May 2011. The President of the Section acceded to the applicant’s request not to have her name disclosed (Rule 47 § 4 of the Rules of Court). 2. The applicant was represented by Mr P. Henriksen, a lawyer practising in Oslo. The Norwegian Government (“the Government”) were represented by Mr M. Emberland of the Attorney General’s Office (Civil Matters) as their agent, assisted by Mr J. Vangsnes, Attorney. 3. The applicant alleged a violation of her right to the presumption of innocence under Article 6 § 2 of the Convention on account of the national court’s decision, despite her acquittal on criminal charges, to order her to pay compensation to the victim. She further complained that in breach of the Article 6 § 1 fair hearing guarantee the decision had not been sufficiently reasoned. 4. On 25 January 2013 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant, Mrs N.A., was born in 1986 and lives in Norway. 6. On 16 September 2009 the applicant and her former husband Mr U.A., a Pakistani national who was born in 1985, were indicted (I) under Article 229, third alternative, cf. Article 232 of the Penal Code (straffeloven), of having caused under particularly aggravating circumstances injury to the body and health of their daughter A entailing serious damage, or of having aided and abetted in this, by having exposed her at least on two occasions to violence causing the following damage: “- Two instances of fraction to her cranium; - bleeding under the hard membrane of the brain; - bleeding between the hard membrane of the brain and scull; - oedema changes in the brain; - bleedings in the retina in both eyes; - blue marks and miscolouring on the body; - elbow out of joint. The last-mentioned injury had been discovered in December 2007 and the remainder in January 2008. The injuries to her head had been life-threatening and had led to permanent brain injury. The violence had been caused by the child’s parents, Mr U.A. and Mrs N.A., directly by, amongst other things, blows and/or pushes against a hard surface and forceful shaking and/or by aiding and abetting the perpetration of the violence by not intervening and seeking to prevent the actions carried out against the child, in respect of whom both parents assumed the care.” They were also indicted (II) under Article 219 (2), cf. (1), of having seriously and repeatedly exerted violence or otherwise infringed or ill‑treated someone in their household – in an aggravated manner because the abuse had been carried out over a long period, had been committed against a defenseless person and had been unprovoked. During the period from 17 August 2005 until 26 January 2008, their son B had a number of times been exposed to violence resulting, inter alia, in the following injuries: “- A fracture in the upper arm caused by twisting; - blue nails on both of his big toes; - several wounds, scars and miscolouring to the body, including scars after scratching on the throat. The violence had been caused by the child’s parents, Mr U.A. and Mrs N.A., either directly and/or by aiding and abetting the perpetration of the violence by not intervening and seeking to prevent the actions carried out against the child, in respect of whom both parents assumed the care.” 7. On 13 January 2010 the Oslo City Court (tingrett) convicted the applicant and her former husband of the charges and sentenced them to terms of imprisonment of two years and a half and three years and a half, respectively. It was not in doubt that the two children had been subjected to gross ill-treatment by adults but concluded that it was not possible from the evidence taken from the defendants and witnesses in the case to identify one or more perpetrators. The statements given had been contradictory to such a degree that this could not be explained as being due to misunderstandings. Several of the statements ought to be considered as untrue leaving no possibility to distinguish between lies and truth on different points. On the other hand the City Court found it established that the damage to the children had mainly occurred while the children had been in the flat. It was further proven that the accused Mr U.A. had been present in the tiny flat occupied by the family while the ill-treatment occurred, as had also been the case of the applicant. The City Court also found it proven that each of the parents had aided and abetted in the commission of the violence by not having interfered or sought to prevent the acts of violence carried out against the children in regard to whom they had a duty of care. The parents were ordered to pay the children 300,000 and 100,000 Norwegian kroner (NOK) (approximately 36,000 and 12,000 euros (EUR)) in compensation for non-pecuniary damage. 8. The applicant and her former husband appealed to the Borgarting High Court (lagmannsrett), which, sitting with a jury, held a hearing for twelve days between 17 August and 3 September 2010). It took evidence from the defendants and eighteen witnesses and two court appointed experts. After the jury had answered all the questions put to it in the negative, the professional judges decided to accept the jury’s verdict of acquittal. 9. In the same judgment of 3 September 2010, the High Court (without the participation of any members of the jury) examined the children’s claims for compensation of non-pecuniary damage under section 3-5 (1) (a) of the Damage Compensation Act 1969. It held: “According to this provision a person who with intent or gross negligence has caused personal injury may be required to pay compensation to the victim. The High Court observes that such infringements as described in Article 219 of the Penal Code can constitute a ground for awarding compensation for non-pecuniary damage under section 3-5(1)(b), cf. section 3-3, even if no damage has occurred in the sense of the Act. The assistance lawyer representing the children [‘bistandsadvokaten’] has argued on their behalf that Mr [U.A.] and Mrs [N.A.], with intent or gross negligence, have caused or aided and abetted [‘medvirket’] in causing serious injury to [A]’s head, her elbow getting out of joint and in seriously and repeatedly exposing [B] to violence. The victims’ claims for non-pecuniary damage has its basis in the same acts as those in respect of which Mr [U.A.] and Mrs [N.A.] has been acquitted in the criminal proceedings. The acquittal in the criminal proceedings does not hinder making an award of compensation for non‑pecuniary damage to the victims, since less stringent evidentiary requirements applies to the latter than to criminal punishment. When a judgment of acquittal has been given in the criminal case, the presumption of innocence in Article 6 § 2 of the Convention will set limits to what could constitute the basis for a decision on the civil claims. According to the European Court’s case-law, the national courts cannot justify their decision in a manner calling into doubt the acquitted person’s innocence for criminal law purposes (see the Norwegian Supreme Court’s case-law reports Norsk Retstidende – Rt. 2003 p. 1671). A condition for establishing liability to pay compensation is that it was clearly probable that the damage had been caused by intent or by gross negligence (Rt. 2003 p. 1671). Considering the evidence in the case as a whole, the High Court finds it clearly probable that Mr [U.A.] and Mrs [N.A.] have ill-treated their children or have aided and abetted in doing so by consent or by incitement to the acts, over a long period until 26 January 2008. The High Court further finds it clearly probable that the parents had inflicted or have aided and abetted in inflicting great injuries to A’s head and have inflicted or aided and abetted in inflicting injuries to B through repeated violence, including a fracture to his arm by twisting it. In its assessment of the evidence, the High Court emphasises that several of the injuries ascertained are not compatible with accidental occurrences but on the contrary show that they have been inflicted by strong violence. The High Court also points to the children’s later reactions, including that [B] was in 2008 diagnosed as suffering from post-traumatic stress syndrome. It further refers to witness statements from neighbours about noise in the form of screams of anxiety and painful cries from children in the apartment over a longer period. The High Court is of the view that the physical and psychological injuries sustained by the children are a direct consequence of the ill‑treatment to which they have been exposed. In the High Court’s view it was further foreseeable for Mr [U.A.] and Mrs [N.A.] that serious injuries, including serious brain damage, could occur in the case of such small children. Accordingly, the conditions for making an award of non-pecuniary damage have been fulfilled. The lawyer representing the children had filed a claim for compensation of non-pecuniary damage in an amount of up to NOK 300,000 in respect of [A] and up to NOK 100,000 in respect of [B]. An award of compensation for non-pecuniary damage is to be evaluated on the basis of a wide discretionary assessment of what would constitute a reasonable amount. Factors which are central in the assessment are the objective seriousness of the act, the extent to which the wrongdoer (‘skadevolder’) is to be blamed and the damaging effects. This case concerns injury on very small children, from they were babies until [A] was fourteen months old and [B] was two years and a half. The ill-treatment has occurred during a considerable part of the children’s lives until it was revealed. At present [B] apparently manage well physically and has no physical ailments. However, in 2008 he was diagnosed as suffering from post-traumatic stress syndrome. [A] was in part paralysed on one side and her development is far behind compared to that of other children of her age. Her injuries can be said to be permanent. Compensation for non-pecuniary damage in respect of [A] is to be awarded in an amount of NOK 300,000 [approximately 40,000 euros (EUR)] and in respect of [B] in an amount of NOK 100,000 [approximately EUR 13,500]. The decision on the civil claims is based on the less stringent evidentiary requirements than those applicable to criminal punishment. Thus, the decision on the civil claim does not contradict [‘rokke ved’] the correctness of the acquittal.” 10. The applicant and her former husband appealed to the Supreme Court (Høyesterett), complaining inter alia of the High Court’s assessment of the evidence and that the reasoning for the award on compensation in this regard had failed to satisfy requirements of national law and entailed a violation of Article 6 § 2 of the Convention. 11. On 4 November 2010 the Appeals Leave Committee of the Supreme Court (Høyesteretts kjæremålsutvalg) refused them leave to appeal, finding that such leave was warranted neither by the general importance of the case nor by other considerations. II. RELEVANT DOMESTIC LAW AND PRACTICE 12. Article 229 of the Penal Code 1902, as in force at the relevant time, read: “Any person who injures another person in body or health or reduces any person to helplessness, unconsciousness or any similar state, or who aids and abets thereto, is guilty of occasioning bodily harm and shall be liable to imprisonment for a term not exceeding three years, but not exceeding six years if any illness or inability to work lasting more than two weeks or any incurable defect or injury is caused, and not exceeding eight years if death or considerable injury to body or health results.” 13. Article 232 provided: “If any felony mentioned in Articles 228 to 231 is committed with intent in a particularly painful manner ..... or under especially aggravating circumstances, a sentence of imprisonment shall always be imposed ... In deciding whether other especially aggravating circumstances exist, particular importance shall be attached to whether the offence has been committed against a defenseless person, ... whether it was committed by several persons jointly, and whether it constitutes ill-treatment.” 14. Article 219 stated: “Any person who by threats, duress, deprivation of liberty, violence or any other wrong grossly or repeatedly ill-treats ... (d) any person in his or her household, or (e) any person in his or her care shall be liable to imprisonment for a term not exceeding three years. If the ill-treatment is gross or the aggrieved person ... sustains considerable harm to body or health as a result for the treatment, the penalty shall be imprisonment for a term not exceeding six years. In deciding whether the ill-treatment is gross, particular importance shall be attached to whether it has endured for a long time and whether such circumstances as are referred to in Article 232 are present. Any person who aids or abets such an offence shall be liable to the same penalty.” 15. Under Norwegian criminal law there are four basic conditions that must be met in order to establish criminal liability: (1) the accused has committed the proscribed act or omission (actus reus) which is contrary to a provision of the Penal Code or to a special statutory penal provision in force at the time when the act was committed; (2) there are no exonerating circumstances (e.g. self-defence); (3) the accused has acted with intent (mens rea), unless otherwise expressly stated in the relevant penal provision; and (4) the accused was of sound mind at the time of the commission of the offence. As a general rule, the prosecution has to prove these four elements beyond reasonable doubt. Any reasonable doubt shall benefit the accused (in dubio pro reo). 16. In so far as is relevant, Article 376A of the Code of Criminal Procedure 1981 reads: “If the jury’s verdict is that the person is not guilty, but the court finds that he is undoubtedly guilty, the court may unanimously decide that the case shall be retried before other judges. At the new trial the High Court shall be constituted as a composite court [‘meddomsrett’] ...” 17. Article 376 of the same Code provides: “If the jury’s verdict is that the accused is not guilty and if the court does not take a decision pursuant to Article 376A, it shall render a judgment of acquittal.” No reasons are given for an acquittal. 18. Under the Code of Criminal Procedure, a civil claim may be pursued in connection with a criminal trial, provided that the claim arises from the same set of facts. The claim is decided by the three professional judges who have taken part in the criminal case, without the participation of the jury. Article 3 reads: “Any legal claim that the aggrieved person or any other injured person has against the person charged may, in accordance with the provisions of Chapter 29, be pursued in connection with such cases as are mentioned in Article 1 or Article 2, provided that the said claim arises from the same act that the case is concerned with. ... The claims specified in the first and second paragraphs are deemed to be civil claims and shall be dealt with in accordance with the provisions of Chapter 29 ...”. 19. The court will determine the claim on the basis of the evidence adduced during the trial. However, it may receive further evidence. Article 144 of the Code of Civil Procedure, then in force (tvistemålsloven – Law of 13 August 1915 no. 6; replaced with effect from 1 January 2008 by a new Code) required that the professional judges, precisely and exhaustively, state the facts on which they base their decision on the alleged victim’s civil claim. 20. Other provisions concerning civil compensation claims may be found in Chapter 29 of the Code of Criminal Procedure, notably the following: Article 427 “In a public prosecution, the prosecuting authority may on application pursue such civil legal claims as are specified in Article 3. ... When civil claims are pursued against a person other than the person charged, the person concerned assumes the position of a party to the case in so far as this issue is concerned. ...” Article 428 “Any person who has any such civil claim as is specified in Article 3 may himself pursue it in connection with a public prosecution if a main hearing is held. ...” Article 435 “A separate appeal against a decision of civil claims shall be brought in accordance with the provisions of the Code of Civil Procedure. The same shall apply to a reopening of the case.” 21. Under the Damage Compensation Act 1969, the alleged victim may, regardless of the outcome of the criminal proceedings, claim compensation for pecuniary and non-pecuniary damage. Section 3-5, as in force at the relevant time, read as follows: “Anyone who, with intent or gross negligence has a. Caused personal injury or b. Committed an infringement or an act of misconduct as mentioned in section 3‑3, may ... be obliged to pay the victim such a lump sum as the court deems would constitute reasonable compensation [‘oppreisning’] for the pain and suffering and other non-pecuniary damage caused thereby. ... A person who with intent or gross negligence has caused the death of another person, may be ordered to pay such compensation to the deceased’s ... parents.” 22. Section 3-3, referred to in the above provision, expressly applies to misconduct mentioned in, amongst others, Article 219 of the Penal Code. 23. A claim for compensation for non‑pecuniary damage submitted by a victim under section 3-5 of the Act is subject to his or her showing that the alleged perpetrator, with intent or gross negligence, committed the wrongful act. The test is normally the balance of probabilities and the burden of proof lies with the claimant. However, in a landmark ruling of 1996 concerning civil liability for forced sexual intercourse (Rt. 1996, p. 864, at p. 876; Ringvold v. Norway, no. 34964/97, §§ 16-19, ECHR 2003‑II) the Norwegian Supreme Court held that the requirement as to the strength of the evidence had to be stricter than that which applied to the test of the balance of probabilities, bearing in mind the burden which an allegation of reprehensible conduct might have for the defendant and the serious consequences it might have for his or her reputation. In a case of the kind under consideration, the test had to be whether on the balance of probabilities it was clearly probable that the alleged abuse had been committed (“klar sannsynlighetsovervekt”). This burden was heavier where liability may have serious consequences for the respondent’s reputation, though it was less than for criminal liability. 24. The objective constitutive elements of acts which may give rise to both criminal liability and civil liability to pay compensation are not always the same. The subjective constitutive elements in principle differ: normally criminal liability requires intent whereas liability to pay compensation requires gross or simple negligence. There may be exonerating circumstances – such as self-defence, necessity, provocation or ignorance – which exclude criminal liability but which do not exclude liability to pay compensation (see Norges Offentlige Utredninger (Official Norwegian Reports) 2000:33 “Erstatning til ofrene hvor tiltalte frifinnes for straff” (Compensation to Victims in Cases where the Accused has been Acquitted of the Criminal Charge), study by Mr J. T. Johnsen, Professor of Law, Chapter 1, sub‑chapter 1.3.2). 25. According to that study, the purposes of the criminal law and the law on compensation are not identical. While deterrence and restoration are important considerations in both areas of law, the former places emphasis on retribution and the latter on the spreading of financial loss. The two systems also supplement one another in important respects. While criminal law sanctions are particularly designed to deter the actual and potential offenders from committing offences, those of the law of compensation are particularly designed to meet the aggrieved person’s need for economic redress (ibid., Chapter 1, sub‑chapter 1.2.1). 26. The above-mentioned study identified several justifications for maintaining the possibility to award compensation in connection with criminal proceedings even after an acquittal. It may serve the interests of economy of procedure, and also psychological stress may be saved by treating criminal charges and compensation claims in joint proceedings. In comparison with civil proceedings, such joint proceedings were cheap both for the accused and for the victim who would be able to benefit from free legal aid for the handling of the civil claims. If the compensation proceedings had to await a final outcome in the criminal case (at three levels of jurisdiction), it could take years before they could start. For the victim, and also for the acquitted, this could involve a considerable extra psychological burden. Moreover, in joint proceedings, the demands for thoroughness that were inherent in the criminal process would contribute to increasing the quality of the examination of the civil claim. Furthermore, the exonerating effect of an acquittal was not likely to be greater in split proceedings than in joint ones. On the contrary, in view of the problems related to examining the criminal evidence twice, the effect would tend to be more consistent under the latter. Finally, in criminal cases giving rise to more than one civil claim, deciding them all at the same time in connection with the criminal process would ensure a greater degree of “procedural equality” and coherence (ibid., Chapter 6, sub-chapter 6.3.1 and 6.3.2). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION 27. The applicant complained that in its decision on compensation the High Court had linked the matter so closely to the criminal case that it entailed a violation of Article 6 § 2 of the Convention, which reads as follows: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” 28. The Government contested that argument. A. Admissibility 29. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further finds that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits The parties’ submissions (a) The applicant 30. The applicant, disagreeing with the Government, maintained that the High Court’s reasoning on the compensation matter had in reality covered all the constituent elements for criminal liability, objective as well as subjective, and thus cast doubts over the correctness of the applicant’s acquittal in the criminal case. This was so irrespective of the High Court’s affirmations that a different standard of proof had been applied in the criminal case and the compensation case, respectively, and that its conclusion on the latter did not call into doubt the correctness of the acquittal. In view of the High Court’s factual description in its reasoning of the applicant’s conduct in inflicting and/or aiding and abetting the infliction of injuries on the children and the absence of a mention of any alternative cause, it appeared incomprehensible that she had been acquitted of the criminal charges. 31. Furthermore, by referring at the outset to the possibility that the offences described in Article 219 of the Penal Code could constitute a ground for compensation under section 3-5 of the Damage Compensation Act, the High Court had created a direct link between the offences dealt with in the criminal case and the acts examined in the compensation case. Since it was in the nature of things that an Article 219 offence could not occur by accident or without intent by the perpetrator, the ensuing reasoning took on criminal law features. Moreover, the High Court had stated that the injuries suffered by the children had been inflicted with “repeated violence” and “severe violence” – typically criminal-law terms – and that the injuries were not compatible with accidents but showed that they had been inflicted by “severe violence”. Thus, like in Orr v. Norway (no. 31283/04, § 51, 15 May 2008), the High Court had in the instant case given reasons covering both the objective and the subjective conditions for criminal liability and using typically criminal-law terms. Since it in addition held that the injuries could not have been due to an accident, the conclusion that it had overstepped the bounds of the civil forum was inescapable. 32. Therefore, in the applicant’s opinion, there had been a violation of Article 6 § 2 of the Convention. (b) The Government 33. The Government maintained that the High Court had made every effort to ensure compatibility with the presumption of innocence in Article 6 § 2 of the Convention. In its judgment it had provided an account of the differences in the standard of proof respectively in criminal and civil cases and had clearly distinguished between the criminal and civil liability in the case of the applicant. This distinction the High Court had reinforced by its diligent underlining and application of the standard of clear preponderance of evidence, a different standard than the criminal one. It had also stressed that its award of compensation did not affect the correctness of the applicant’s acquittal, unlike in the High Court judgment that had been the subject of review in Orr (cited above, § 53). 34. At no point in the reasoning on compensation did it state expressly or in substance that all the conditions for criminal liability had been fulfilled (see Ringvold, § 38). Nor was the High Court’s reasoning otherwise formulated in such a way as to create a clear link between the criminal case and the ensuing compensation proceedings and thereby overstep the bounds of the civil forum. Unlike in Y v. Norway (no. 56568/00, § 46, ECHR 2003‑II (extracts)), the reasoning in the present case contained no statement referring to the criminal charges. It rather established, like the national reasoning in Ringvold, the fulfilment of the objective constitutive elements of the offence in question and thus stayed within bounds while complying with the duty to provide adequate reasons. 35. Whilst it was true that the High Court had used the term “violence”, a word also used in the national judgment in Orr, the description of the events had been more detailed in the latter case than in the present instance where the reasoning had gone no further than necessary for establishing civil liability. The said term was not in itself of a criminal nature. Using words implicating the use of force would often be necessary. A national court’s discretion to make choices in this respect should not be constrained in such a way to obscure its reasoning. 36. Therefore, when read as a whole, the High Court’s reasoning in the present instance adequately justified the award of compensation while at the same time avoiding any links to the criminal case. 37. Should this reasoning be deemed to fall short of the standards of Article 6 § 2, it would entail the consequence that it would be difficult for domestic courts to adjudicate on civil claims in cases where the defendant had been acquitted. The Court had previously accepted as a possible and equitable approach the arrangement provided for in Norwegian procedural law for settling civil claims following an acquittal (see Ringvold, cited above, § 38). 38. Accordingly, the decision ordering the applicant to pay compensation did not give rise to a violation of Article 6 § 2 of the Convention. (c) The Court’s assessment 39. In its examination of the above-mentioned complaint, the Court will have regard to the general principles stated in its case-law (see Allen v. the United Kingdom [GC], no. 25424/09 [GC], §§ 92-94, 95-97, 103-104, ECHR 2013) and will follow the specific approach adopted in previous cases concerning civil compensation claims lodged by victims (ibid. §§ 101 and 123). 40. From the outset the Court observes that, like in comparable cases dealt with previously, for instance Ringvold, Y. v. Norway and Orr, all cited above), it does not find on the basis of the three so-called Engel criteria (namely the classification of the proceedings in domestic law, their essential nature, and the degree of severity of the potential penalty, Engel and Others v. the Netherlands, 8 June 1976, § 82, Series A no. 22), that the compensation proceedings gave rise to a “criminal charge” against the applicant (see Allen, cited above, § 95). Thus, as regards the first of these criteria, it was also the position in the present instance that the compensation claim was not viewed as a “criminal charge” under the relevant national law (see Ringvold, cited above, § 37; Y. v. Norway, cited above, § 40; and Orr cited above, § 48). And as regards the second and third criteria, the Court finds equally valid the following considerations set out in paragraph 38 of the Ringvold judgment (see also Y. v. Norway, cited above, § 41; Orr, cited above, § 49; Reeves v. Norway (dec.), no. 4248/02, 8 July 2004; Diacenco v. Romania, no. 124/04, §§ 58-59, 7 February 2012; see also, mutatis mutandis, Lundkvist v. Sweden (dec.), no. 48518/99, ECHR 2003-XI; Erkol v. Turkey, no. 50172/06, § 37, 19 April 2011; and Allen, cited above, § 123): “... [T]he Court observes that, while the conditions for civil liability could in certain respects overlap, depending on the circumstances, with those for criminal liability, the civil claim was nevertheless to be determined on the basis of the principles that were proper to the civil law of tort. The outcome of the criminal proceedings was not decisive for the compensation case. The victim had a right to claim compensation regardless of whether the defendant was convicted or, as here, acquitted, and the compensation issue was to be the subject of a separate legal assessment based on criteria and evidentiary standards which in several important respects differed from those that applied to criminal liability. ... In the view of the Court, the fact that an act that may give rise to a civil compensation claim under the law of tort is also covered by the objective constitutive elements of a criminal offence cannot, notwithstanding its gravity, provide a sufficient ground for regarding the person allegedly responsible for the act in the context of a tort case as being ‘charged with a criminal offence’. Nor can the fact that evidence from the criminal trial is used to determine the civil-law consequences of the act warrant such a characterisation. Otherwise, as rightly pointed out by the Government, Article 6 § 2 would give a criminal acquittal the undesirable effect of pre-empting the victim’s possibilities of claiming compensation under the civil law of tort, entailing an arbitrary and disproportionate limitation on his or her right of access to a court under Article 6 § 1 of the Convention. This again could give a person who was acquitted of a criminal offence but would be considered liable according to the civil burden of proof the undue advantage of avoiding any responsibility for his or her actions. Such an extensive interpretation would not be supported either by the wording of Article 6 § 2 or any common ground in the national legal systems within the Convention community. On the contrary, in a significant number of Contracting States, an acquittal does not preclude the establishment of civil liability in relation to the same facts. Thus, the Court considers that, while exoneration from criminal liability ought to stand in the compensation proceedings, it should not preclude the establishment of civil liability to pay compensation arising out of the same facts on the basis of a less strict burden of proof (see, mutatis mutandis, X v. Austria, no. 9295/81, Commission decision of 6 October 1982, Decisions and Reports (DR) 30, p. 227, and C. v the United Kingdom, no. 11882/85, Commission decision of 7 October 1987, DR 54, p. 162). If the national decision on compensation were to contain a statement imputing criminal liability to the respondent party, this would raise an issue falling within the ambit of Article 6 § 2 of the Convention.” 41. Accordingly, having found that the compensation proceedings under review did not involve a “criminal charge”, the Court will examine whether Article 6 § 2 was engaged on different grounds (Allen, cited above, § 96), in particular whether the compensation case nevertheless was linked to the criminal trial in such a way as to fall within the scope of this provision (ibid., §§ 101, 104, 123). As in other types of situations where the Court has ascertained the circumstances in which Article 6 § 2 will be violated in the context of proceedings which follow the conclusion of criminal proceedings, the language used by the decision-maker will be of critical importance in assessing the compatibility of the decision and its reasoning with this provision (see Allen, cited above, §§ 123, 125 and 126). What the Court has to assess is whether, in the light of the nature of the task that the domestic court was required to carry out, and in the context of the decision to acquit the applicant (see paragraph 8 above), the language it employed was compatible with the presumption of innocence (see Allen, § 129). 42. In this connection, it should be emphasized by way of preliminary observation that the nature and context of the proceedings at issue in this case concerned a particular type of situations, namely the imposition of civil liability on an acquitted person to pay compensation to the victim with respect to the acts in respect of which he or she has been acquitted of criminal liability. As can be seen from the general principles of the Court’s case-law quoted at paragraph 40 above (and summarised in Allen, cited above, § 123), this category of cases has previously been dealt with on a different approach from that that applied in cases relating to decisions on an acquitted person’s compensation claim for detention on remand, where even the voicing of suspicion regarding the accused’s innocence has been deemed incompatible with the presumption of innocence embodied in Article 6 § 2 of the Convention (ibid. § 122, with further references). In contrast, as already mentioned, the question in the present type of context is whether the national decision of compensation were to contain a statement imputing criminal liability to the respondent party (ibid. § 123, with further references, and the second sub-paragraph of § 38 of Ringvold, quoted at paragraph 40 above). 43. As regards the reasoning on the compensation matter in the instant case, the Court notes that the High Court dealt with the issue in the same judgment as the criminal charges. This was a natural consequence of the fact that the two matters had been pursued in the course of the same proceedings and could not of itself bring the matter within the ambit of Article 6 § 2 (see Orr, cited above, § 50; see also Y. v. Norway and Reeves, both cited above). It is also to be observed that in two clearly distinct parts of its judgment, the High Court dealt respectively with the criminal charges against the applicant, ending in a conclusion of acquittal (a non-guilty verdict by the jury approved by the professional judges, see paragraph 8 above), and with the compensation claim made on the children’s behalf (without the participation of any members of the jury), in respect of which it ordered the applicant to pay them compensation (see paragraph 9 above). 44. In the part dealing with compensation, the High Court first reiterated the conditions for awarding compensation for non-pecuniary damage under sub-paragraph (a) of section 3-5(1) of the 1969 Damage Compensation Act (that the person had with intent or gross negligence caused personal injury), and that an award could be made under sub-paragraph (b) for an infringement described in Article 219 of the Penal Code even if no damage had occurred in the sense of the Act (see paragraphs 9, 21 and 22 above). 45. The High Court then went on to note that the children’s compensation claims had been grounded on the same acts as those in respect of which the applicant had been acquitted in the criminal case. In this connection it explained that an acquittal did not bar the possibility of awarding the victim compensation on a lesser strict burden of proof, provided that the limits of the presumption of innocence in Article 6 § 2 be respected in the reasoning which ought not to cast doubt over the defendant’s innocence. In this context it referred to the European Court’s case-law. The High Court further reiterated that under the relevant national standard a condition for compensation was that it was clearly probable that the damage had been caused by intent or by gross negligence (see paragraphs 9 and 23 above). Finally, in its conclusion, the High Court considered that its decision on the civil claim had been based on a less strict burden of proof than that which applied in criminal proceedings and did not undermine the correctness of the acquittal (see paragraph 9 above). 46. In the Court’s view, there is nothing to indicate that the High Court’s general approach to the compensation matter as such gave rise to any issue attracting the application of Article 6 § 2 of the Convention. It appears that the High Court deliberately strived to distance its reasoning on compensation from the criminal case, so as to avoid bringing the matter into the criminal sphere outside the bounds of the civil forum. That said, even if presented with such cautionary statements as mentioned above, the reasoning in a decision on compensation may raise an issue under this provision if, as already mentioned above, it involves statements imputing criminal liability to the respondent party (see Orr, cited above, § 53 and, mutatis mutandis, Hammern v. Norway, no. 30287/96, § 48, 11 February 2003). 47. In its further reasoning the High Court focused on the elements as were typically relevant for ascertaining civil liability under section 3-5 of the Damage Compensation Act. This included the finding of a clear probability – the civil standard of proof – that the applicant (and her former husband) had ill-treated or had aided and abetted in the ill-treatment of the children; a description of the serious damage inflicted on them; an affirmation that a causal link existed between the ill-treatment and the serious damage; and that the serious damage had been foreseeable to the applicant (and her former husband). It is also noteworthy that the High Court’s reasoning left open the identity of the person or persons who had inflicted the damage and thus did not single out the applicant as the perpetrator. The present case is therefore distinguishable from Ringvold, §§ 19 and 39; Reeves and Lundkvist, all cited above, where the Court found no violation; and from Y., § 44, and Orr, §§ 51 to 55, both cited above, where the Court found a violation). The High Court further left undetermined whether the applicant had incited the ill-treatment, on the view that her consent to the acts was sufficient for making her liable to pay compensation. 48. In its reasoning the High Court used the term “aiding and abetting” (“medvirkning”). In the Court’s view this does not in itself present a problem, as the expression is not reserved for the criminal-law sphere but is equally used in the civil law of tort. More problematic was the use of the terms “violence” (“vold”) and “ill-treatment” (“mishandling”). In Orr, cited above, § 51 the Chamber concluded in that particular context that the concept of “violence” overstepped the bounds of the civil forum. However, the factual circumstances of that case were different, as it related to a specific event of alleged rape involving two persons. Furthermore, the concept of “violence” is not exclusively criminal in nature (ibid.). As for “ill-treatment”, it should be recalled that in Ringvold, cited above, §§ 19 and 41, the expression “sexual abuse” used by the relevant national court did not lead to the finding of a violation by the Court. Furthermore, the Court’s case-law provides some examples of instances where no violation of Article 6 § 2 has been found even though the language used by domestic authorities and courts was criticised. It should be reiterated that when regard is had to the nature and context of the particular proceedings at issue, even the use of some unfortunate language may not be decisive (see Allen, cited above, § 126, with further references). Read in context of the judgment as a whole, the use of the said expressions by the High Court in the instant case cannot reasonably be read as an affirmation imputing criminal liability on the part of the applicant. 49. In the light of the above, the Court does not discern in the High Court’s specific reasoning for awarding compensation in the present case any element in its description of the facts in respect of which it found the applicant civilly liable to pay compensation or in its assessment of those facts that could be viewed as amounting to the establishment of criminal guilt on her part. This description did not cover all those constitutive elements, objective and subjective (see paragraphs 14 and 15 above), that would normally amount to an offence under Article 219 of the Penal Code (compare and contrast Y v. Norway, cited above, § 44, where the High Court found it probable that the applicant had “committed the offences”). Nor did the High Court’s reasoning contain any statement suggesting, either expressly or in substance, that all the conditions were fulfilled for holding her criminally liable with respect to the charges of which she had been acquitted (see Ringvold, cited above, § 38). 50. Against this background, the Court does not consider that the decision and reasoning on compensation were incompatible with, and “set aside”, the applicant’s acquittal (see Ringvold, cited above, § 38; see also Reeves and Lundkvist, cited above). 51. Nor were there any other such links between the criminal proceedings and the compensation proceedings as to justify extending the scope of Article 6 § 2 to cover the latter (see Ringvold, cited above, § 41; and Allen, cited above, § 97). Also, the outcome of the criminal case was not decisive for the issue of compensation; the situation was the reverse: despite the applicant’s acquittal it was legally feasible to award compensation. Regardless of the conclusion reached on the criminal charges against the applicant, the compensation case was thus not a direct sequel to the former (ibid.). 52. In sum, the Court concludes that Article 6 § 2 was not applicable to the proceedings relating to the compensation claim against the applicant and that this provision has therefore not been violated in the instant case. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 53. The applicant further complained that in breach of Article 6 § 1 fair hearing guarantee the High Court had failed to give adequate reasons for its decision to award compensation. In so far as is relevant, this provision reads: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 54. The Government disputed the applicant’s contention. A. Admissibility 55. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. B. Merits 1. The applicant’s submissions 56. The applicant complained that in breach of Article 6 § 1 none of the arguments that militated against holding her liable to pay compensation had been rendered in the judgment. This had also made it impossible to verify whether these arguments had been considered. A reduced duty to provide reasons for making a compensation award in the event of an acquittal was unsustainable and was inconsistent with the right to a fair trial. The principle of presumption of innocence could not justify an exemption being made to the requirement to state reasons. On the contrary, the High Court ought to have rendered and discussed the arguments in question. These were clearly objective arguments, namely that it had been her uncle and aunt who had injured the children. Her aunt was known to have lied in five police interviews and a witness had stated that the uncle had confided that he had attempted to kill the daughter. In this respect she also referred to certain requirements to state reasons set out in Article 19-6 (4) and (5) of the Code of Civil Procedure 2005 (tvisteloven). 57. There had therefore been a violation of the requirement in Article 6 § 1 to give adequate reasons, a shortcoming which had not been mended by the Appeals Leave Committee of the Supreme Court’s decision refusing to grant leave to appeal, without giving reasons. 2. The Government’s submissions 58. The Government maintained that the High Court had given sufficient reasoning for its decision to award civil compensation to the children. As regards the applicant’s submission that the High Court should have discussed the counter evidence, namely the possibility of alternative perpetrators (two such perpetrators had at an earlier stage been charged but were not indicted), the Government argued that such a detailed account would inevitably challenge the presumption of innocence. Whilst a Norwegian court would give extensive reasoning for its decision in an ordinary civil case, in joint proceedings such as the present, a high court sitting with a jury would by tradition state its reasons succinctly in order to avoid making statements that could be viewed as being inconsistent with the jury’s acquittal. 59. Therefore, in cases like the present one a very delicate balancing was required in order to uphold the acquittal in the criminal case while at the same time ensuring the rights of the victim. Accordingly, there were weighty reasons for the High Court not to discuss in detail why the applicant’s arguments for acquittal could not lead to rejection of the victims’ compensation claims. 60. Moreover, the reasoning provided showed which events the High Court had found sufficiently proven, and the applicant had every possibility to form an appeal based on the High Court’s reasoning. Indeed, the applicant’s appeal to the Supreme Court did also concern the High Court’s assessment of the evidence. 3. The Court’s assessment 61. The Court has taken note of the applicant’s having invoked certain standards of national procedural law (see paragraph 56 above), but the question to be determined is whether the requirements of Article 6 § 1 of the Convention as interpreted in its case-law were complied with. It reiterates that in García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999‑I, it held as follows: “26. ... [A]ccording to its established case-law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (see the Ruiz Torija v. Spain and Hiro Balani v. Spain judgments of 9 December 1994, Series A nos. 303-A and 303-B, p. 12, § 29, and pp. 29-30, § 27; and the Higgins and Others v. France judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 60, § 42). Although Article 6 § 1 obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument (see the Van de Hurk v. the Netherlands judgment of 19 April 1994, Series A no. 288, p. 20, § 61). Thus, in dismissing an appeal, an appellate court may, in principle, simply endorse the reasons for the lower court’s decision (see, mutatis mutandis, the Helle v. Finland judgment of 19 December 1997, Reports 1997-VIII, p. 2930, §§ 59-60).” 62. Turning to the particular circumstances of the present case, the Court notes that in holding the applicant liable to pay compensation, the High Court, considering the evidence of the case as a whole, found it clearly probable that the applicant (and her former husband) had ill-treated their children or had aided and abetted in doing so by consent or by incitement to the acts. It further held that the physical and psychological injuries sustained by the children had been a direct consequence of the ill-treatment and that it had been foreseeable to the applicant (and her former husband) that serious injuries could occur in the case of such small children (see paragraph 9 above). 63. Although the High Court’s reasoning on compensation was relatively succinct and did not identify the person or persons who had perpetrated the ill-treatment, Article 6 § 1 does not, as already stated above, require a detailed answer to every argument. On the approach adopted by the High Court, it was sufficient for holding the applicant liable that she had consented to the reprehensible acts. The Court, having regard to the entirety of the domestic proceedings, to the High Court’s role in these (see Monnell and Morris v. the United Kingdom, 2 March 1987, § 56, Series A no. 115; and Ekbatani v. Sweden, 26 May 1988, § 27, Series A no. 134) and to the nature of the task it was required to carry out (see, mutatis mutandis, Allen, cited above, § 129), as well as the manner in which the applicants’ interests were presented and protected before it (see Monnell and Morris, ibid.), is satisfied that the latter stated adequate reasons for its decision ordering her to pay compensation. These reasons were sufficient to afford the applicant an opportunity to make effective use of her right to appeal to the Supreme Court (see Hadjianastassiou v. Greece, 16 December 1992, § 33, Series A no. 252; Hirvisaari v. Finland, no. 49684/99, § 30, 27 September 2001; and Sanchez Cardenas v. Norway, no. 12148/03, § 49, 4 October 2007), of which she indeed availed herself by appealing against the High Court’s reasoning regarding the assessment of the evidence (see paragraph 10 above). 64. Accordingly, there has been no violation of Article 6 § 1 of the Convention. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been no violation of Article 6 § 2 of the Convention; 3. Holds that there has been no violation of Article 6 § 1 of the Convention. Done in English, and notified in writing on 18 December 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenIsabelle Berro-LefèvreRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Dedov is annexed to this judgment. I.B.L.S.N. CONCURRING OPINION OF JUDGE DEDOV I voted for a finding of no violation of Article 6 § 2 of the Convention for reasons other than those set out in the judgment. In the light of the separate opinions produced by in previous similar cases Judges Costa and Tulkens (Ringvold v. Norway, no. 34964/97, ECHR 2003‑II) and Judge Gaetano (Allen v. the United Kingdom [GC], no. 25424/09, ECHR 2013), in which they expressed serious doubts and concerns about the non-applicability of the presumption of innocence in civil compensation proceedings, it would appear that the issue of legal methodology has still not been resolved in a manner compatible with the rule of law. Indeed, the possibility of awarding compensation in connection with criminal proceedings after acquittal cannot be justified by general reference to “the interests of economy of procedure” (see paragraph 26 of the judgment) or to the civil law of tort (paragraph 40) or to “a lesser strict burden of proof” (paragraph 45) or to “a clear probability – civil standard of proof – that the applicant...had ill-treated...the children” (paragraph 47). In the above-mentioned separate opinions, Judge Tulkens stated that “the accused incurs civil liability if fault is established”, while Judge Costa stressed that “the presumption of innocence may continue to apply even after the criminal action has been terminated or the accused has been acquitted” and that if the person “was told that he had been acquitted of the offence with which he had been charged”, this person cannot be “subsequently told (on the basis of the same facts) that it was clear that he had committed the offence, and ordered to pay compensation to the victim”. Thus, if the presumption of innocence must apply in terms of personal guilt, it follows that different grounds – which exclude applicability of the presumption of innocence – must be used for the purpose of liability. Such methodology requires that liability should not be based on the defendant’s personal involvement. This approach cannot be satisfied by the High Court’s view that “her consent to the acts was sufficient [to make] her liable”, because at the same time the High Court “left open the identity of the person... who inflicted the damage” (see paragraph 47). If the applicant consented to ill-treatment, then the investigators should, as a rule, identify the person to whom she gave her consent. The Court concludes that the term “aiding and abetting” is used in the civil law of tort, unlike “violence” and “ill-treatment” (see paragraph 48). Again and again, however, the discussion revolves around the issue of whether personal guilt is to be established. However, the civil law of tort is normally based on other grounds when obliging a person who did not commit harmful acts to compensate damage. Such persons may not have been directly involved in the actions in question, but objective reasons exist which give rise to their liability. For example, an employer is liable for his/her employees’ actions, and an owner of dangerous equipment is liable for damage inflicted by that equipment on third persons. This approach is consistent with that set out in the Principles of European Tort Law: “Article 1:101. Basic norm (1) A person to whom damage to another is legally attributed is liable to compensate that damage. (2) Damage may be attributed in particular to the person (a) whose conduct constituting fault has caused it; or (b) whose abnormally dangerous activity has caused it; or (c) whose auxiliary has caused it within the scope of his functions. Article 4:103. Duty to protect others from damage A duty to act positively to protect others from damage may exist if law so provides. Article 4:202. Enterprise Liability (1) A person pursuing a lasting enterprise for economic or professional purposes who uses auxiliaries or technical equipment is liable for any harm caused by a defect of such enterprise or of its output unless he proves that he has conformed to the required standard of conduct... Article 6:101. Liability for minors or mentally disabled persons A person in charge of another who is a minor or subject to mental disability is liable for damage caused by the other unless the person in charge shows that he has conformed to the required standard of conduct in supervision. Article 6:102. Liability for auxiliaries (1) A person is liable for damage caused by his auxiliaries acting within the scope of their functions provided that they violated the required standard of conduct...” In the Allen judgment, cited above, the Grand Chamber accepted a different (statutory) ground where the presumption of innocence was not to apply, namely where the conviction by a court had occurred without any miscarriage of justice and the person was released on the basis of a new circumstance which was wholly or partly attributable to the person (ibid., § 49). More specifically, the Court made its assessment in paragraph 128 of the Allen judgment: “128. It is also important to draw attention to the fact that section 133 of [the Criminal Justice Act 1988] required that specified criteria be met before any right to compensation arose. These criteria were, put concisely, that the claimant had previously been convicted; that she had suffered punishment as a result; that an appeal had been allowed out of time; and that the ground for allowing the appeal was that a new fact showed beyond reasonable doubt that there had been a miscarriage of justice. The criteria reflect, with only minor linguistic changes, the provisions of Article 3 of Protocol No. 7 to the Convention, which must be capable of being read in a manner which is compatible with Article 6 § 2. The Court is accordingly satisfied that there is nothing in these criteria themselves which calls into question the innocence of an acquitted person, and that the legislation itself did not require any assessment of the applicant’s criminal guilt”. In the instant case the Court did not use the above methodology and found it unnecessary to make any reference to paragraph 128 of the Allen judgment. Instead, it referred to the Allen judgment in a different context (see paragraphs 39 and 41 of the present judgment). It is noteworthy that both this case and the Allen case concern similar circumstances: damage was caused to children and the issue of their parents’ liability for this damage was raised before the domestic courts. Thus, liability is, in general, to be based on the positive obligation to protect the life and well-being of those who are under the control of third persons, and, in particular, parents’ liability is based on their obligation to take care of their children. This approach is consistent with a duty under Article 4:103 of the Principles of European Tort Law to act positively to protect others from damage, and with the Court’s case-law on the State’s responsibility for alleged ill-treatment of those placed under the control of the State authorities. This approach requires that the burden of proof should be shifted to such a person. The Court has reiterated in such cases that “it is incumbent on the State to provide a plausible explanation of how those injuries were caused” (see Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999‑V, with further references). Returning to this case, the position of the national first-instance court is very close to this approach. The City Court found that the parents did not “prevent the acts of violence carried out against the children in regard to whom they had a duty of care” (see paragraph 7 of the judgment).

FOURTH SECTION CASE OF MAKARENKO v. UKRAINE (Application no. 622/11) JUDGMENT STRASBOURG 30 January 2018 FINAL 30/04/2018 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Makarenko v. Ukraine, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Vincent A. De Gaetano, President,Ganna Yudkivska,Paulo Pinto de Albuquerque,Egidijus Kūris,Iulia Motoc,Carlo Ranzoni,Georges Ravarani, judges,and Marialena Tsirli, Section Registrar, Having deliberated in private on 9 January 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 622/11) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Anatoliy Viktorovych Makarenko (“the applicant”), on 29 December 2010. 2. The applicant was represented by Mr A.P. Bushchenko, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna. 3. The applicant complained, in particular, that his arrest and detention had been unlawful and that the extensions of his pre-trial detention had not been based on sufficient and relevant reasons. 4. On 7 June 2011 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1964 and lives in Kyiv. A. Background to the case 6. The end of 2008 and the beginning of 2009 were marked by a dispute between Ukraine and Russia on the conditions for gas supplies, including the price paid by Ukraine and the transit price charged by Ukraine to Russia. It culminated in Russia cutting off supplies in early January 2009, affecting not only Ukraine but also European States dependent on Russian gas. 7. On 18 January 2009 the Prime Ministers of Ukraine and Russia, Ms Yulia Tymoshenko and Mr Vladimir Putin, reached an agreement with a view to resolving the dispute. 8. On 19 January 2009 the chairmen of the boards of the respective countries’ gas companies, Naftogaz Ukrainy and Gazprom of Russia, formalised the terms of the agreement by signing a 2009-2019 gas supply contract. In particular, it provided for a new approach to gas pricing and for passing to direct contractual relations (Gazprom had previously supplied gas to Ukraine through an intermediary, RosUkrEnergo AG, a Swiss-registered joint venture company, 50% of which was owned by Gazprom itself and 50% by two Ukrainian businessmen through a private company, also registered in Switzerland). 9. On 20 January 2009 the first deputy chairman of the board of Naftogaz Ukrainy, D., and the deputy chairman of the board of Gazprom signed a further contract regarding the terms of natural gas transit through the territory of Ukraine. Under Addendum no. 1, a claim of 11 billion cubic metres of natural gas imported by way of transit to Ukraine by RosUkrEnergo AG was ceded to Naftogaz Ukrayiny. 10. On 28 January 2009 the President of Ukraine Mr Viktor Yushchenko appointed the applicant as chief of the State Customs Service of Ukraine, upon the Prime Minister’s nomination. 11. On 26 February 2009 D. sent a letter to the applicant, requesting customs clearance for the 11 billion cubic metres of natural gas referred to in the contract of 20 January 2009 and the annulment of nineteen customs declarations stating that the gas had been imported for transit purposes. 12. Also on 26 February 2009 Mr Oleksandr Turchynov, the First Deputy Prime Minister of Ukraine, instructed the applicant in writing to ensure prompt customs clearance of the gas in question. 13. On 27 February 2009 the applicant countersigned D.’s letter with the statement “To [K.] for execution taking into account the requirements of Article 88 of the Customs Code of Ukraine” (K. was chief of the Regional Customs Office for Power, and the legal provision in question set out the duties and responsibilities of customs applicants). On the same day the applicant also countersigned Mr Turchynov’s letter with the statement “To [K.] for execution”. 14. On 7 February 2010 Mr Viktor Yanukovych was elected President of Ukraine after defeating Ms Tymoshenko in a run‑off. 15. On 22 March 2010 the applicant resigned. 16. On an unspecified date RosUkrEnergo AG instituted proceedings in the Arbitration Institute of the Stockholm Chamber of Commerce, alleging that the 11 billion cubic metres of gas was its property and had been unlawfully expropriated by Naftogaz Ukrayiny. 17. On 8 June 2010 the Institute found for RosUkrEnergo AG. B. Criminal proceedings against the applicant and related events 18. On 10 June 2010 the State Security Service of Ukraine (hereinafter “the Security Service”) instituted criminal proceedings against D. on suspicion of large-scale embezzlement on account of his involvement in the gas transactions of January 2009. 19. On 22 June 2010 the police questioned Mr Sh., who had been the deputy chief of the Customs Clearance Unit of the Regional Customs Office for Power in January 2009, as a witness in the proceedings. He replied in the positive to a question about whether he was familiar with D.’s letter to the applicant of 26 February 2009 (see paragraphs 11 and 13 above). 20. On 23 June 2010 the applicant appeared for questioning as a witness in the proceedings against D. He was accompanied by his lawyer. 21. The questioning concerned the two letters sent to the applicant on 26 February 2009 and his actions thereupon. 22. After the end of the applicant’s questioning at 3.43 p.m., the investigator informed him about the imminent institution of criminal proceedings against him. The applicant remained at the Security Service, without any immediate procedural steps being taken against him. According to him, he was not allowed to leave. The Government stated that it was the applicant’s own decision to wait until the decision on criminal proceedings was ready. 23. The proceedings were instituted later that day on suspicion of neglect of his official duties entailing grave consequences under Article 367 § 2 of the Criminal Code (“the CC”, see paragraph 52 below). The charge was related to his countersigning the letters for customs clearance for the gas imported by way of transit without verifying the lawfulness of those demands and so causing substantial damage to the prestige of the State and to RosUkrEnergo AG’s interests. The criminal case was joined to that against D. (see paragraph 18 above). 24. At 6.42 p.m. on 23 June 2010 the applicant signed the decision on the institution of criminal proceedings against him with a statement that he had de facto been under arrest from 3.43 p.m. that day. 25. According to the Government, the applicant and his lawyer studied the decision from 4.15 p.m. to 6.45 p.m. 26. At 7.02 p.m. the investigator drew up a report on the applicant’s arrest with a general reference to Articles 106 § 2 and 115 of the Code of Criminal Procedure (“the CCP”, see paragraph 50 below). As noted in the report, the investigation had established that the applicant had had no legitimate grounds to endorse the First Deputy Prime Minister’s request of 26 February 2009 (see paragraph 12 above). The investigator further stated that the applicant’s rights as a suspect had been explained to him at 6.30 p.m. The applicant wrote on the report that the arrest period had actually started at 3.43 p.m. 27. At 8.05 p.m. on 23 June 2010 the applicant was questioned as a suspect. He emphasised that he was willing to cooperate with the investigation and that his behaviour in the proceedings had been flawless. He also stated that there were no grounds for his arrest and that he was prepared to pay bail as a preventive measure in accordance with the CCP. 28. On 24 June 2010 the Kyiv Pecherskyy District Court (“the Pecherskyy Court”) remanded the applicant in custody for two months. By way of reasoning, the court noted that the applicant was suspected of a serious offence potentially entailing imprisonment; that he could interfere with investigative activities, either by absconding or tampering with evidence; and that he was capable of influencing witnesses, regard being had, in particular, to his connections with former colleagues, his prominent social status and his wealth. Moreover, the applicant had no employment or young children under his charge. The court therefore rejected an application by fifty Members of Parliament to release him on their personal surety. 29. The applicant appealed, contending in particular that his arrest had been arbitrary and not based on a reasonable suspicion that he had committed a crime. Moreover, the court’s findings as to the probability of his interfering with the investigative activities were arbitrary. He had been a civil servant with an impeccable reputation, no prior criminal record, strong family ties and a permanent residence in Kyiv. Moreover, his conduct in relation to the criminal proceedings concerning the gas dealings had been beyond reproach. Between the date of the initiation of the related proceedings against D. on 10 June and the applicant’s arrest on 23 June 2010, he had twice been abroad and had returned to Ukraine of his own free will; he had duly reported for questioning as a witness as soon as he had been summoned; and he was willing to continue his cooperation with the authorities in good faith. Lastly, he referred to the surety offered by the Members of Parliament to ensure his proper conduct in the proceedings. 30. On 2 July 2010 the Kyiv City Court of Appeal (hereinafter “the Court of Appeal”) dismissed the applicant’s appeal against the custodial measure. The court noted, in particular: “... the particularly large amount of damage caused to RosUkrEnergo AG and the existence of serious consequences, manifested in the prestige of the State being undermined, indicate a high degree of danger to society from the crime, a primary ground for imposing on A. V. Makarenko a preventive measure entailing his being remanded in custody.” 31. The appellate court also concurred with the first-instance court’s finding that the applicant might take advantage of his social connections and wealth to influence the investigation if he remained at liberty. 32. On 28 July 2010 the Supreme Court rejected an application by the applicant for leave to appeal in cassation against the decisions as not envisaged by law. 33. On 30 July 2010 the applicant challenged the lawfulness of his arrest of 23 June 2010 before the Kyiv Shevchenkivskyy District Court (“the Shevchenkivskyy Court”). He alleged, firstly, that his arrest had not fallen within the ambit of Article 106 § 2 of the CCP and so had been arbitrary and unforeseeable. Furthermore, before his official arrest at 7.02 p.m., he had already been held at the Security Service for more than three hours without any legal grounds. On 27 September and 12 October 2010 the Shevchenkivskyy Court and the Court of Appeal, respectively, rejected the applicant’s complaint, finding that the investigator had acted in accordance with the law. 34. On 20 August 2010 the Pecherskyy Court extended the term of the applicant’s pre-trial detention until 10 October 2010. The court noted that a number of investigative measures were still necessary and there were no reasons justifying lifting the custodial measure. 35. On 27 August 2010 the Court of Appeal dismissed an appeal by the appeal against that decision. 36. On 25 October 2010 the Supreme Court rejected a request for leave to appeal in cassation as not envisaged by law. 37. On 30 September 2010 the Security Service re-classified the applicant’s actions as intentional abuse of office under Article 364 § 3 of the CC rather than neglect of his official duties under Article 367 § 2 (see paragraphs 51-52 below). 38. On 6 October 2010 the Pecherskyy Court extended the applicant’s detention until 23 October 2010, referring to essentially the same arguments as before. 39. On 12 October 2010 the Court of Appeal upheld the first-instance court’s decision. 40. On 13 October 2010 the applicant was notified of the completion of the pre-trial investigation and given access to the case file. 41. On 22 October and 9 December 2010 and on 5 January, 7 February and 9 March 2011 the Court of Appeal extended the applicant’s detention by one month (the last extension was until 10 April 2011), given that further time was required for the applicant and his lawyers to study the case file, which consisted of forty-eight volumes. In all those rulings the appellate court noted that it had had regard to “the circumstances of the case, information as a whole about the character of the accused, the gravity of the offence ... and the absence of any grounds for changing the preventive measure [in his respect] to a more lenient one”. 42. On 1 April 2011 the applicant applied to be released under an undertaking not to abscond. He noted that his health had seriously deteriorated in detention and that he required a specialist medical examination and assistance on account of several heart conditions but that there was no cardiologist in the detention facility. 43. On 13 April 2011 the applicant’s lawyer complained to the Prosecutor General’s Office that the term of his client’s detention ordered by the court had expired on 10 April 2011. He therefore requested the applicant’s immediate release. There was no follow up to that complaint. 44. On 14 April 2011 the Pecherskyy Court held a preparatory hearing for the applicant’s trial. It decided to keep him in pre-trial detention as it found no grounds to change the measure. The applicant re-submitted his request for release as formulated on 1 April 2011 (see paragraph 42 above), however, the court ruling did not contain any reference to it. 45. On 26 April 2011 the Pecherskyy Court remitted the case to the Prosecutor General’s Office for further investigation given that meanwhile, on 11 April 2011, the latter had instituted criminal proceedings against former Prime Minister Tymoshenko on suspicion of abuse of authority for signing the gas contracts in January 2009 (see paragraph 7 above). The court held that the factual circumstances in those proceedings were the same as in the applicant’s case. 46. On 5 July 2011 the Court of Appeal released the applicant under an undertaking not to abscond. 47. On 20 July 2012 the Pecherskyy Court found him guilty as charged and gave him a suspended sentence of four years’ imprisonment. 48. The parties did not inform the Court of any further developments in the criminal proceedings against the applicant. Publicly available material shows that on 3 March 2014 the Pecherskyy Court absolved him from criminal liability and found him not to have had any criminal record. II. RELEVANT DOMESTIC LAW A. Constitution 1996 49. Article 29, which is relevant to the case, reads as follows: “Every person has the right to freedom and personal inviolability. No one shall be arrested or held in custody other than pursuant to a reasoned court decision and only on the grounds and in accordance with a procedure established by law. In the event of an urgent necessity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours. The detained person shall be released immediately if he or she has not been provided, within seventy-two hours of detention, with a reasoned court decision in respect of their being held in custody. ... Everyone who has been detained has the right to challenge his or her detention in court at any time. ...” B. Code of Criminal Procedure 1960 (“the CCP”, in force at the material time) 50. Relevant provisions of this Code provided: Article 106. Arrest of a suspect by the body of inquiry “The body of inquiry shall only be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed on one of the following grounds: (1) if the person is discovered whilst or immediately after committing an offence; (2) if eyewitnesses, including victims, directly identify this person as the one who committed the offence; (3) if clear traces of the offence are found either on the body of the suspect, or on his clothing, or with him, or in his home. If there is other information giving rise to grounds for suspecting a person of a criminal offence, a body of inquiry may arrest that person if the latter attempts to flee, or does not have a permanent place of residence, or if the identity of that person has not been established. ...” Article 115. Arrest of a suspect by an investigator “An investigator may arrest ... a person suspected of having committed a crime in accordance with the procedure provided for in [Article] 106 ... of the Code. ...” Article 148. Purpose of and grounds for the application of preventive measures “Preventive measures shall be imposed on a suspect, accused, defendant, or convicted person in order to prevent him from attempting to abscond from an inquiry, investigation or the court, or obstructing the establishment of the truth in a criminal case, or to pursue criminal activities, and in order to ensure the execution of procedural decisions. Preventive measures shall be imposed where there are sufficient grounds to believe that the suspect, accused, defendant or convicted person will attempt to abscond from an investigation and from the court, or if he fails to comply with procedural decisions, or obstructs the establishment of the truth in the case or pursues criminal activities. ...” Article 149. Preventive measures “The preventive measures are as follows: (1) a written undertaking not to abscond; (2) a personal guarantee; (3) the guarantee of a public organisation or labour collective; (3-1) bail; (4) pre-trial detention; ... As a temporary preventive measure, a suspect may be detained on the grounds and pursuant to the procedure provided for by Articles 106, 115 and 165-2 of this Code.” Article 165-2. Procedure for selection of a preventive measure “At the stage of the pre-trial investigation, a non-custodial preventive measure shall be selected by the body of inquiry, or investigator, or prosecutor. If there are grounds for applying a custodial preventive measure, the body of inquiry or the investigator, following the prosecutor’s consent, shall lodge a request with the court. ... The request shall be considered within seventy-two hours of the arrest of the suspect or accused. If the request concerns the detention of a person who is at liberty, the judge shall have the power to issue a warrant for the arrest of such a person and for escorting him to the court. In such cases the preliminary detention shall not exceed seventy-two hours; and if the person concerned is outside the locality in which the court operates, it shall not exceed forty-eight hours from the time the arrested person was brought to the locality. Upon receiving the request, the judge shall examine the material in the case file submitted by the body of inquiry, or investigator, or prosecutor. A judge shall question the suspect or the accused and, if necessary, hear evidence from the person who is in charge of the criminal case, obtain the opinion of the prosecutor, the defence counsel, if the latter appeared before the court, and take a decision: (1) refusing to apply the [custodial] preventive measure if there are no grounds for doing so; (2) applying the custodial preventive measure. If it refuses to apply the custodial preventive measure, the court shall have the power to apply a non-custodial preventive measure in respect of the suspect or the accused. The judge’s decision may be appealed against to the court of appeal by the prosecutor, the suspect, the accused or his or her defence counsel or legal representative within three days of delivery. An appeal shall not suspend execution of the judge’s decision. If in order to select a preventive measure in respect of a detained person it is necessary to examine additional material concerning the character of the detained person or to clarify other circumstances that are important for the adoption of a decision on this matter, the judge may extend the applicant’s preliminary detention by up to ten days or, if so requested by the suspect or the accused, by up to fifteen days. If it is necessary to examine additional material concerning a person who has not been arrested, the judge may adjourn consideration of this issue for up to ten days and take measures for ensuring that person’s proper conduct or issue an order for that person’s arrest and detention for the same period.” C. Criminal Code 2001 (“the CC”, as worded at the material time) 51. Article 364 § 3 provided for five to ten years’ imprisonment with a prohibition on holding certain offices or carrying out certain activities for a period of up to three years and property confiscation as a penalty for abuse of power by a law-enforcement official which led to grave consequences. 52. Under Article 367 § 2, the sanction for neglect of a person’s official duties with grave consequences was imprisonment for two to five years, with a prohibition for up to three years on holding certain posts or carrying out certain activities, and an optional fine of one hundred to two hundred and fifty times the of the non-taxable minimum income. THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 53. The applicant complained under Article 5 §§ 1 and 3 of the Convention that he had been deprived of his liberty in an unlawful and arbitrary manner and that the domestic courts had failed to provide relevant and sufficient reasons for his detention. The provisions relied on read as follows in the relevant part: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (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; ... 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” A. Admissibility 54. The Court notes that this part of the application 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. Complaints under Article 5 § 1 of the Convention (a) The applicant’s alleged deprivation of liberty from 3.43 p.m. to 7.02 p.m. on 23 June 2010 (i) The parties’ submissions 55. The applicant contended that he had been deprived of his liberty for three hours and twenty minutes, without his detention being documented, let alone justified. He observed that he had not been free to leave the premises of the Security Service given that it was guarded and people could not enter or leave without a special permit. As he had had no such permit any attempt to leave would have been without success. 56. Furthermore, the applicant observed that under Article 106 § 2 of the CCP one of the reasons for a suspect’s arrest was “an attempt to flee” (see paragraph 50 above). In the absence of any explanations concerning his procedural status at that stage or the reasons for holding him at the offices of the Security Service, he had not been sure that his attempt to leave the premises would not have been interpreted as “an attempt to flee” in the meaning of the above-mentioned legal provision. The applicant argued that such an interpretation had been highly probable as the investigator had decided to institute criminal proceedings against him after his questioning. 57. The Government argued that the applicant had been free to leave after his questioning as a witness on 23 June 2010 and that no coercion or pressure had been exercised on him to make him stay at the Security Service building. In that connection, the Government attached weight to the fact that the applicant had been accompanied by his lawyer, who must have been aware of the issues associated with the deprivation of liberty. In the absence of any complaints from the lawyer regarding his client’s staying in the offices of the Security Service, there was no indication that the applicant had been kept there against his will. 58. Accordingly, the Government maintained that there had been no deprivation of liberty during the period in question and that the applicant’s rights under Article 5 of the Convention had not been breached. (ii) The Court’s assessment (α) General principles 59. The general principles developed by the Court in assessing whether someone has been “deprived of his liberty” within the meaning of Article 5 of the Convention were recently summarised in the Court’s judgment in Kasparov v. Russia (no. 53659/07, § 36, 11 October 2016) and read as follows (with numerous further case-law references omitted here): “(i) The starting-point must be his concrete situation and account must be taken of a whole range of criteria 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. (ii) The requirement to take account of the “type” and “manner of implementation” of the measure in question enables the Court to have regard to the specific context and circumstances surrounding types of restriction other than the paradigm of confinement in a cell. Indeed, the context in which the measure is taken is an important factor, since situations commonly occur in modern society where the public may be called on to endure restrictions on freedom of movement or liberty in the interests of the common good. (iii) It is often necessary to look beyond the appearances and the language used and concentrate on the realities of the situation. 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. (iv) The right to liberty is too important in a “democratic society”, within the meaning of the Convention, for a person to lose the benefit of the protection of the Convention for the single reason that he gives himself up to be taken into detention. Detention may violate Article 5 of the Convention even though the person concerned has agreed to it. For the same reason, if person initially attends a place of detention such as a police station of his own free will or agrees to go with the police for questioning, this is not in itself determinative of whether that person has been deprived of his liberty. (v) The Court will also examine the degree of coercion involved. If, upon an examination of the facts of the case, it is unrealistic to assume that the applicant was free to leave, this will normally indicate that there has been a deprivation of liberty. This may be the case even when there is no direct physical restraint of the applicant, such as by handcuffing or placement in a locked cell. (vi) Article 5 § 1 of the Convention may apply even to deprivations of liberty of a very short length.” 60. It has been the Court’s constant view that the unrecorded detention of an individual is a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention and discloses a most grave violation of that provision. The absence of a record of such matters as the date, time and location of detention, the name of the detainee, the reasons for the detention and the name of the person effecting it must be seen as incompatible with the requirement of lawfulness and with the very purpose of Article 5 of the Convention (see, among many other references, Čamans and Timofejeva v. Latvia, no. 42906/12, § 129, 28 April 2016). (β) Application of the above principles to the present case 61. It is not disputed in the present case that the applicant remained on the premises of the Security Service once his questioning as a witness had been completed at 3.43 p.m. and before the report on his arrest was drawn up at 7.02 p.m. on 23 June 2010. The major point of disagreement between the parties is whether he did so of his own free will or as a result of coercion. 62. As pointed out by the Government, there were no formal indications of a deprivation of liberty at that stage. Thus, he had not been handcuffed or locked up or had a guard placed next to him. It is noteworthy, however, that the investigator immediately informed the applicant about the decision to institute criminal proceedings against him and started drafting a formal ruling to that effect, without determining the applicant’s status in a formal way. Regardless of whether or not it was technically possible for the applicant to leave the Security Service’s premises without a special permit, it was, in the Court’s opinion, unrealistic to assume that under the circumstances he was free to do so. On the contrary, the Court finds convincing the applicant’s argument that, being aware of the upcoming criminal proceedings against him, he had every reason to fear that an attempt by him to leave would have negative consequences for him (see paragraph 56 above). 63. As to the Government’s argument that both the applicant and his lawyer had accepted that situation without complaining, it is, firstly, inaccurate (see paragraphs 24, 26 and 33 above) and, secondly, irrelevant for the Court’s assessment of whether the applicant was deprived of his liberty (see paragraph 59 above). 64. Looking beyond mere appearances and regardless of the lack of characterisation given by the Ukrainian authorities to the factual situation complained of, the Court concludes, in the circumstances of the present case, that the applicant was deprived of his liberty from 3.43 p.m. to 7.02 p.m. on 23 June 2010. 65. The Court has already found violations in cases where the formal determination of an applicant’s status as an arrested suspect was delayed without a reasonable explanation (see, for examples in Ukrainian cases, Smolik v. Ukraine, no. 11778/05, §§ 46-48, 19 January 2012; Grinenko v. Ukraine, no. 33627/06, §§ 77-78, 15 November 2012; Belousov v. Ukraine, no. 4494/07, §§ 86-88, 7 November 2013; and Kushnir v. Ukraine, no. 42184/09, §§ 166-168, 11 December 2014). 66. The Court considers that a similar problem has manifested itself in the present case, given that there was no record of the applicant’s detention for three hours and twenty minutes and that no explanation was given for that omission. 67. There has therefore been a violation of Article 5 § 1 of the Convention on this account. (b) The applicant’s arrest at 7.02 p.m. on 23 June 2010 and his detention on the basis of the investigator’s decision until 24 June 2010 (i) The parties’ submissions 68. The applicant argued that his arrest at 7.02 p.m. on 23 June 2010 without a judicial warrant had been contrary to the safeguards of Article 29 of the Constitution and Article 106 of the CCP, which only permitted such detention in specific urgent cases and which had not applicable to his situation (see paragraphs 49-50 above). 69. The applicant observed that the investigator had merely referred to Article 106 § 2 of the CCP without any analysis as to how it was relevant in the circumstances of his case. The applicant further noted that he had never denied countersigning the letters in question and that the investigator had had no grounds to suspect him of a criminal offence. Even if an assumption to the contrary was made, the applicant went on to state, none of the preconditions set out Article 106 § 2 of the CCP had been met in his case (see paragraph 50 above). 70. The Government maintained that the domestic authorities had had legitimate grounds to arrest the applicant. They noted that the witness Mr Sh. had during his questioning on 22 June 2010 directly identified the applicant as an official who had acted in gross neglect of his duties (see paragraph 19 above). Accordingly, the Government contended that Article 106 of the CCP had been applied correctly. 71. The Government pointed out that the lawfulness of the applicant’s arrest had been reviewed by the domestic courts at two levels of jurisdiction and they had dismissed his complaint in that regard as unfounded (see paragraph 33 above). (ii) The Court’s assessment 72. It is well established in the Court’s case-law on Article 5 § 1 that all deprivation of liberty must not only be based on one of the exceptions listed in sub-paragraphs (a) to (f) but must also 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 national law. This primarily requires any arrest or detention to have a legal basis in domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention (see Del Río Prada v. Spain [GC], no. 42750/09, § 125, ECHR 2013). 73. The Court notes that under Ukrainian legislation deprivation of liberty without a reasoned court decision was possible only in a limited number of situations defined with sufficient precision. Thus, Article 29 of the Constitution permitted such a measure for a maximum of three days only as a response to an urgent need to prevent or stop a crime (see paragraph 49 above). According to Article 106 of the CCP, an investigator could arrest a person if the latter had been caught in flagrante delicto, had been pointed out as an offender by eyewitnesses or victims, or had clear traces of a crime on his person or clothing (§ 1). Any other information giving rise to grounds for suspecting a person of a criminal offence would only provide a legitimate basis for arresting that person without a judicial order if: (a) he had attempted to flee; (b) he had no permanent residence; or (c) his identity had not been established (see paragraph 50 above). 74. There is no indication that any of those conditions was met in the applicant’s case and thus bringing it within the scope of the exceptions providing the investigator with the power of arrest without a court decision. 75. It is noteworthy that the applicant was arrested in connection with an event which had taken place almost a year and a half earlier. It could not therefore be claimed that the authorities faced an urgent situation such as, for example, an in flagrante delicto situation. Overall, there is nothing to suggest that the general requirement of a preliminary arrest warrant issued by a court could not or should not have been adhered to. 76. Having regard to the above considerations, the Court finds that the applicant’s arrest and detention between 23 and 24 June 2010 on the basis of the investigator’s decision contravened the domestic legislation and was thus incompatible with the requirements of Article 5 § 1 of the Convention. 77. There has therefore been a violation of Article 5 § 1 in this respect as well. 2. Complaint under Article 5 § 3 of the Convention (a) The parties’ submissions 78. The applicant complained that his detention from 24 June 2010 to 5 July 2011 had been in breach of his rights under Article 5 § 3 of the Convention. He argued that the domestic courts had failed to provide relevant and sufficient reasons in their decision to remand him in custody and in their subsequent extensions of that preventive measure. 79. The applicant criticised the courts for being formalistic and for their failure to give any assessment to the particular circumstances of his case or to consider any alternative, less intrusive, preventive measures. He observed that he had travelled abroad twice after the criminal proceedings against D. had been initiated. He emphasised that he had always demonstrated his readiness to cooperate with the investigation and noted in that connection that he had complied with the very first summons from the investigator to appear for questioning as a witness in those proceedings. Moreover, fifty Members of Parliament had offered their personal surety to ensure his proper conduct in the proceedings. However, the Ukrainian courts had not made any assessment of any the above circumstances. 80. The applicant further submitted that in extending his pre-trial detention on numerous occasions the domestic courts had mainly relied on the absence of any reason for changing the custodial preventive measure to a more lenient one. In other words, he argued that they had not even attempted to establish and demonstrate the existence of concrete facts outweighing the rule of respect for individual liberty and that the burden of proof had wrongly been shifted onto him. 81. The Government submitted that the applicant’s detention had been based on relevant and sufficient grounds. 82. They maintained that the domestic courts had not only had due regard to the gravity of the criminal offence in question, but had also looked at all the other circumstances of relevance. 83. The Government referred to the fact that the applicant had been released on 5 July 2011 under an undertaking not to abscond as evidence in support of their arguments. They observed that by that time all the investigative steps had been completed and there had no longer been any risk of his hampering the establishment of the truth or influencing witnesses. (b) The Court’s assessment (i) General principles 84. The Court reiterates that justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities. The requirement for the judicial officer to give relevant and sufficient reasons for the detention – in addition to the persistence of reasonable suspicion – applies already at the time of the first decision ordering detention on remand, that is to say “promptly” after the arrest (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, §§ 87 and 102, ECHR 2016 (extracts)). Furthermore, when deciding whether a person should be released or detained, the authorities are obliged to consider alternative measures of ensuring his appearance at trial (see, for example, Idalov v. Russia [GC], no. 5826/03, § 140, 22 May 2012). 85. Justifications which have been deemed “relevant” and “sufficient” reasons in the Court’s case-law have included such grounds as the danger of absconding, the risk of pressure being brought to bear on witnesses or of evidence being tampered with, the risk of collusion, the risk of reoffending, the risk of causing public disorder and the need to protect the detainee (see, for instance, Ara Harutyunyan v. Armenia, no. 629/11, § 50, 20 October 2016, with further references). 86. The presumption is always in favour of release. The national judicial authorities must, with respect for the principle of the presumption of innocence, examine all the facts militating for or against the existence of the above-mentioned requirement of public interest or justifying a departure from the rule in Article 5, and must set them out in their decisions on applications for release. It is essentially on the basis of the reasons given in these decisions and of the well-documented facts stated by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 (see, among other authorities, Buzadji, cited above, §§ 89 and 91). Arguments for and against release must not be “general and abstract” (see Smirnova v. Russia, nos. 46133/99 and 48183/99, § 63, ECHR 2003‑IX (extracts)). Where the law provides for a presumption in respect of factors relevant to the grounds for continued detention, the existence of the specific facts outweighing the rule of respect for individual liberty must be convincingly demonstrated (see Ilijkov v. Bulgaria, no. 33977/96, § 84 in fine, 26 July 2001). (ii) Application of the above principles to the present case 87. The Court notes that the applicant spent one year and twelve days in pre-trial detention. When ordering and extending that preventive measure, the Ukrainian courts mainly relied on the following considerations: the seriousness of the charges against him and the risk of his absconding or interfering with the investigation, in particular by tampering with the evidence or influencing witnesses. 88. It is noteworthy that the criminal proceedings against the applicant concerned specific facts which were never disputed. Thus, the applicant never denied countersigning the official letters of 26 February 2009 in his capacity as chief of the State Customs Service. The crux of the criminal case against him was the legal classification of that act: initially it was viewed as possible neglect of official duties but was subsequently re-classified to abuse of office (see paragraphs 23, 37, 51 and 52 above). Under the circumstances, it is difficult to imagine how the applicant could have possibly hampered establishing any facts of relevance for the investigation. Likewise, the definition of the nature and scope of his official duties at the time was not dependant on any witness statements or other evidence susceptible of being tampered with. That being so, and in the absence of any further explanations from the domestic courts in that regard, it remains unclear what they actually meant when they referred to the risk of the applicant interfering with the investigation. 89. The Court notes that the risk of his absconding, also raised as a justification for his detention, was also not based on any specific facts in the case. The domestic courts failed to give any assessment to the applicant’s pertinent argument that his behaviour in the proceedings had shown his readiness to cooperate with the investigation. 90. Furthermore, there seems to be no indication in the domestic courts’ reasoning that they duly examined any alternative, less intrusive, preventive measures in the applicant’s case. In particular, no explanation was given for their rejection of the release request on a personal surety by fifty Members of Parliament (see, in particular paragraphs 28 and 30 above). 91. The Court next observes that the reasoning given in justification of the applicant’s pre-trial detention did not evolve with the passage of time. Even when the investigation had been completed and the applicant was studying the case file, his detention was extended merely because the courts did not discern any reasons for changing the measure (see paragraphs 41 and 44 above). The Court therefore agrees with the applicant’s argument that the domestic courts failed to make a fact-specific assessment of the preventive measure applied to him throughout the entire period of his detention. The fact that he was released on 5 July 2011, before his conviction (see paragraph 46 above), does not counterbalance those previous failures. 92. The Court has often found a violation of Article 5 § 3 of the Convention in cases against Ukraine on the basis that even for lengthy periods of detention domestic courts referred to the same set of grounds, if there were any, throughout periods of applicants’ detention (see, for example, Kharchenko v. Ukraine, no. 40107/02, §§ 80-81 and 99, 10 February 2011). 93. The Court considers that the circumstances of the present case disclose a similar problem. 94. There has therefore been a violation of Article 5 § 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 5 95. The applicant stated in his application that the violations of his rights under the Convention pursued political motives and stemmed from the fact that he had served in the previous government, which was, at the time of his application to the Court, in opposition to the new ruling party. Referring to “numerous publications in Ukrainian and foreign mass media”, the applicant maintained that he and other former government officials were being unjustifiably persecuted. 96. The applicant’s submission was communicated to the respondent Government under Article 18 of the Convention taken in conjunction with Article 5, which provides as follows: “The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.” 97. The Government argued that the applicant’s allegations lacked any substantiation. 98. The applicant responded by making reference to his earlier arguments in the application, without further comments. 99. Having regard to the summary nature of the applicant’s submission in support of this complaint, the Court cannot but reject it as manifestly ill-founded under Article 35 §§ 3 (a) and 4 of the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 100. The applicant further complained under Article 6 § 1 of the Convention that the courts which had examined the issue of his pre-trial detention had lacked impartiality and independence as, in particular, on several occasions the same judges had been involved in considering whether to extend the custodial measure. Additionally, he complained under the above provision that the courts had refused to consider his appeal against the ruling of 30 September 2010 on the institution of criminal proceedings against him under Article 364 § 3 of the CC (see paragraph 37 above). Lastly, the applicant complained under Article 14 of the Convention that the judicial authorities had referred to his prominent social status and wealth as an argument for holding him in custody. 101. In the light of all the material in its possession and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected too as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 102. 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 103. The applicant claimed 15,000 euros (EUR) in respect of non‑pecuniary damage. 104. The Government contested the above claim as excessive. 105. The Court, making its assessment on an equitable basis, awards the applicant EUR 10,000 in respect of non-pecuniary damage. B. Costs and expenses 106. The applicant claimed EUR 7,128 in respect of his legal representation by Mr Bushchenko in the proceedings before the Court, which included: EUR 6,600 for legal work at EUR 150 per hour and EUR 528 for administrative costs. To substantiate that claim, the applicant submitted a legal assistance contract of 21 July 2011, under which he was to pay Mr Bushchenko EUR 4,000 in advance. The remaining amount was to be paid upon the completion of the proceedings in Strasbourg and only within the limits of the Court’s award in costs and expenses. The contract further stipulated that the applicant was to reimburse his representative various administrative expenses estimated at 8% of the amount of legal fees. As confirmed by financial receipts, on 2 August and 29 November 2011 the applicant paid an advance equivalent to EUR 4,000 to his representative. The applicant also submitted a time-sheet completed by Mr Bushchenko on 22 November 2011, which showed he had spent forty-four hours working on the case. 107. The Government contested the above claim as unsubstantiated and exorbitant. 108. 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 considers it reasonable to award the sum of EUR 2,000 covering costs under all heads. C. Default interest 109. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaints under Article 5 §§ 1 and 3 of the Convention admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 5 § 1 of the Convention on account of the applicant’s deprivation of liberty from 3.43 p.m. to 7.02 p.m. on 23 June 2010; 3. Holds that there has been a violation of Article 5 § 1 of the Convention on account of the applicant’s arrest without a judicial warrant from 7.02 p.m. on 23 June to 24 June 2010; 4. Holds that there has been a violation of Article 5 § 3 of the Convention; 5. 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, 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), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant, 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; 6. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 30 January 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Marialena TsirliVincent A. De GaetanoRegistrarPresident

FIRST SECTION CASE OF ABDULKADYROVA AND OTHERS v. RUSSIA (Application no. 27180/03) JUDGMENT STRASBOURG 8 January 2009 FINAL 05/06/2009 This judgment may be subject to editorial revision. In the case of Abdulkadyrova and Others v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Anatoly Kovler,Elisabeth Steiner,Khanlar Hajiyev,Sverre Erik Jebens,Giorgio Malinverni, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 4 December 2008, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an application (no. 27180/03) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the four Russian nationals listed below (“the applicants”), on 20 July 2003. 2. The applicants were represented by lawyers of the NGO EHRAC/Memorial Human Rights Centre. The Russian Government (“the Government”) were represented by Mr P. Laptev and Ms V. Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights. 3. The applicants alleged that their relative had disappeared after being detained by servicemen in Chechnya on 8 September 2002 and that on the same day their house had been searched and their property damaged. 4. On 11 October 2005 the President of the First Section decided to grant priority to the application under Rule 41 of the Rules of Court. 5. By a decision of 24 January 2008, the Court declared the application partly admissible. 6. The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine), the parties replied in writing to each other’s observations. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 7. The applicants are: (1) Mrs Nurzhan Supyanovna Abdulkadyrova, born in 1973; (2) Mr Shamkhan Ayndayevich Dzhabayev, born in 1995; (3) Mr Zumrat Ayndayevich Dzhabayev, born in 1993; (4) Ms Kheda Ayndayevna Dzhabayeva, born in 1991. 8. The applicants live in Urus-Martan, Chechnya. A. Arrest and detention of Ayndi Dzhabayev 9. The first applicant is the wife of Ayndi Aliyevich Dzhabayev, born in 1967. The second, third and fourth applicants are their children. The first applicant is a librarian by profession, but is currently unemployed. The sole breadwinner of the family was her husband Ayndi Dzhabayev, who worked as a bricklayer in a construction company. 10. The applicants live in their own house at 26 Krasnoarmeyskaya Street in the town of Urus-Martan. At this address there are three houses, sharing a common courtyard. Two other houses are occupied by their relatives. One house is occupied by Said-Magomed D., his wife Fatima (also called Petimat) A. and their two daughters, who were six and three years old in September 2002. 11. There is a direct passage between their courtyard and the house of their neighbours who live at 28 Krasnoarmeyskaya Street. 12. On 8 September 2002 the first applicant had been at the market since early morning. Her three children – the second, third and fourth applicants – were at home with their father, Ayndi Dzhabayev, who was ill. The applicants’ presentation of the events related to Ayndi Dzhabayev’s detention is based on statements by the third and fourth applicants, Fatima A. and two neighbours, Roza P. and Kheda A., who were eyewitnesses to these events. 13. According to these statements, on 8 September 2002 at about midday, a group of military servicemen in several armoured personnel carriers (APCs) surrounded the house at 28 Krasnoarmeyskaya Street, next door to the applicants’ house. The second, third and fourth applicants were playing in the street outside their house. When the military arrived, they went into their house, together with their friend Kh. 14. At house no. 28 there was an exchange of automatic gunfire. The first applicant’s sister-in-law Fatima A. and her two children ran into the first applicant’s house. The shooting in the neighbouring house lasted for about five to ten minutes. When it stopped, Fatima A. went over to her house with her younger daughter. 15. Then a serviceman broke down the door which separated the applicants’ courtyard from that of their neighbours at no. 28 and entered their courtyard. The serviceman was wearing a balaclava mask and was armed with an automatic weapon. He shouted in Russian: “Everybody out in the street, bitches!” 16. Fatima A. ran into the street with her daughter. She was scared to return for the other children and called them from the street to come out. The second and fourth applicants heard the shouting and immediately went outside. Their father Ayndi Dzhabayev told them to go outside, while he was dressing and looking for his passport. The third applicant was late coming out of the house. While in the courtyard he heard the serviceman ordering someone “Hands on the wall, animal!” He turned back and saw the soldier aiming a gun at his father, who quickly walked to the wall and put his hands up. He had not had time to put on his shoes. The serviceman walked up to Ayndi Dzhabayev. The third applicant was scared to remain and went out into the street. 17. At that point Fatima A. realised that her elder daughter had remained inside the house and asked the fourth applicant to go and get her. When the fourth applicant entered the courtyard it was empty and her father and the serviceman had gone. She picked up her cousin from the house and they went to join the rest of the family at the house of their neighbour Kheda A. There they were joined by a neighbour from 29 Krasnoarmeyskaya Street, Roza P., who had also been ordered to leave her house by the servicemen. 18. From there the applicants heard shooting at no. 28 and then at their own house. They submitted that it had not been an exchange of fire, because there had been only one machine-gun firing and the soldiers standing in the street had not reacted to it and had remained calm. 19. At around 3 p.m. the servicemen gathered in the street in front of house no. 28 where the initial shooting had broken out. The soldiers laughed and said that they had killed one fighter (“boyevik”) and another one had run away. At about 3.30 p.m. the head of the town administration and the head of the Urus-Martan district administration arrived. Both men talked to the senior officers among the military. Then the local residents started to come out of their houses and approach the military. 20. Witnesses Roza P. and Kheda A. submitted that they had seen a lot of military vehicles in the streets, including APCs and Ural trucks. Some of the servicemen had gone to the office of the district military commander, located about 300 metres from the applicants’ house. 21. Fatima A. with her children and the second, third and fourth applicants returned to their house. Ayndi Dzhabayev was not there. Inside the house everything had been turned upside down, and things had been thrown out of wardrobes. The furniture and clothes were covered with bullet holes and there were a lot of cartridges from automatic weapons scattered on the floor. In the vegetable patch behind the house were the tracks of an APC. 22. Roza P. walked up to the heads of the town and district administrations and asked them where Ayndi Dzhabayev was. The men replied that no one had been detained. 23. Roza P. and Kheda A. were among the local residents in front of no. 28 Krasnoarmeyskaya Street. They testified that the gates of the house had been opened and they could see that inside there had been a minibus and an Ural military truck. Under the fence-roof they had seen the body of a man (presumably the “fighter”) who had been killed there during the shooting. Several servicemen put the body on a blanket and carried it to the minibus. In the crowd there was the wife of Magomed A., the owner of house no. 28, who had apparently been sought by the military. She identified the man killed as a friend of Magomed’s, while Magomed himself had escaped. 24. The first applicant returned home at about 4 p.m. By that time the military had left. Her eldest daughter, the fourth applicant, told her that they had been forced out of the house by the military, and when they returned their father had no longer been there. The first applicant found the walls and furniture covered with bullet holes. She went into the vegetable patch behind the house and noted APC tracks which led towards the buildings of the Urus-Martan district administration, the district military commander’s office and the premises of a former clothes factory, which at the time was being used to house a military unit. In the passage between their house and no. 28 the applicant found a pack of “Karsil” medicine, used by her husband, who had a liver problem. In the courtyard she found his cigarettes and cigarette holder. She also found his shoes on the porch of the house and concluded that her husband had been taken away barefoot. 25. On the same day the first applicant went to the town administration, but found it already closed and returned home. 26. On the same day at about 6 p.m. a group of about 30 servicemen again arrived at 28 Krasnoarmeyskaya Street in three APCs and one UAZ vehicle. Seven or eight men were wearing masks, the rest were without masks. A large group of servicemen entered no. 28 and probably conducted a search there. Then the military searched the vegetable patches. When the first applicant asked what they were looking for, they said that they were looking for weapons. 27. Then the military wanted to search the third house off the applicants’ courtyard which belonged to their relatives. The first applicant asked them not to break the door down and they waited for her to fetch the key. She explained that the house belonged to their relatives who lived in another region and the military searched it, without showing any papers. 28. The first applicant talked to one of the servicemen and said that earlier on the same day her husband had been driven away by the military. One serviceman who was not wearing a mask told her that if her husband was not guilty of anything, he would be released. Another serviceman told her that they had not detained anyone. When the applicant insisted, he told her that the operation earlier that day had been carried out by other servicemen and that they had come only to carry out the search. They refused to answer any more questions and left after about half an hour. 29. The first applicant submitted that later that day officers from the Urus-Martan District Prosecutor’s Office had questioned her neighbours at no. 28. No one came to the applicants’ house to question them or their relatives. 30. The applicants have had no news of their husband and father Ayndi Dzhabayev since that day. 31. The Government in their observations did not challenge the facts as presented by the applicants. In their earlier observations they stated that it had been established that on 8 September 2002 at about 12.30 p.m. unidentified armed men wearing camouflage uniforms had entered the applicants’ house, destroyed some property and taken Ayndi Dzhabayev away to an unknown destination. His whereabouts could not be established. In their latest observations, submitted in March 2008, the Government referred to the absence of eyewitness accounts of Ayndi Dzhabayev being taken away by the armed men. B. Search and investigation into the “disappearance” 32. The first applicant began searching for her husband on 9 September 2002. She applied to various official bodies, both in person and in writing, trying to find out the whereabouts and the fate of Ayndi Dzhabayev. The first applicant also travelled around Chechnya when she heard of unidentified bodies being found, hoping to find him. At the same time she complained about the damage caused to their property by gunfire. 33. In the morning of 9 September 2002 the first applicant visited the local military commander’s office, the Department of the Interior and the Urus-Martan District Prosecutor’s Office (“the district prosecutor’s office”). Everywhere she was told that they did not know who had detained her husband or where he was. 34. The applicants received hardly any substantive information about the fate of their husband and father or about the investigation. On several occasions they were sent copies of letters by which their requests had been forwarded to different prosecutors’ services. They submitted these documents to the Court, and they can be summarised as follows. 35. On 9 September 2002 the first applicant submitted a written application to the district prosecutor’s office. Her application was registered under no. 1755 and the applicant was informed that it had been assigned to investigator L. The applicant stressed that at that time, in their house, cartridges from the automatic weapons were still lying around and the tracks of the APC were still visible behind the house. 36. On 10 September 2002 the applicant submitted an application to the local military commander, to the head of the district administration, and to the Office of the Special Envoy of the Russian President for rights and freedoms in Chechnya. She also wrote to the NGO Memorial Human Rights Centre. 37. For several days afterwards the first applicant visited all the law-enforcement and military offices in the district. Everywhere the officers denied that her husband had been detained and that they had been responsible for the operation on 8 September 2002. 38. On 18 September 2002 the first applicant managed for the first time to meet investigator L. He showed her a plan of her neighbours’ house at 28 Krasnoarmeyskaya Street and asked in which room her husband had been detained. The first applicant realised that the investigator had information that Ayndi Dzhabayev had been detained at their neighbours’ house, and not at theirs. The first applicant tried to persuade him otherwise, but the investigator insisted that at the moment of detention her husband had been in no. 28. Then the investigator asked her about the neighbours. He promised to call her if there was a need for further clarification. He did not take any other action, such as examining the applicant’s house or questioning the neighbours and relatives. 39. On 23 September 2002 the district newspaper Marsho published an article entitled “Police should work”, in which the Urus-Martan district military commander was quoted as saying that there had been “combat action” in Krasnoarmeyskaya Street, as a result of which one man who had mounted active resistance had been killed and his body had been transferred to the district administration. 40. On 7 October 2002 the first applicant again visited the district prosecutor’s office and found out that her application of 9 September 2002 had been lost, though the registration number existed. The investigator who was responsible for her case had been dismissed, and he had failed to take any action on her complaint. 41. On 8 October 2002 the applicant again submitted an application to the district prosecutor. She stated that her husband had been detained by military servicemen on 8 September 2002 during a special operation, which had been reported in a local newspaper. She also referred to the killing of an unknown young man during the operation and the involvement of a large group of servicemen and military vehicles. The applicant asked the prosecutor to inform her of the progress made in the investigation and to grant her victim status in the proceedings. 42. On 11 October 2002 the applicant was told at the district prosecutor’s office that her complaint had been forwarded by that office to the district department of the interior (ROVD). The applicant submitted that she had managed to see the officer at the ROVD who was responsible for her case only one month later. That officer questioned her and the fourth applicant, and then returned the case to the district prosecutor’s office. 43. On 4 November 2002 the first applicant addressed the district prosecutor, asking for help in finding her husband and complaining of inactivity in the investigation. 44. On 20 November 2002 an investigator of the district prosecutor’s office informed the first applicant that on 20 November 2002 they had opened criminal investigation file no. 61152 into the kidnapping of Ayndi Dzhabayev, which had occurred on 8 September 2002 in Urus-Martan. 45. On 3 March 2003 the first applicant applied to the Urus-Martan District Court (“the district court”), complaining about the actions of the district military commander. She stated that the special operation on 8 September 2002 had been carried out by the military who reported to the local military commander. She requested the court to order the military commander to disclose information concerning her husband’s whereabouts and reasons for his detention, to grant her access to a lawyer and to allow her to challenge the lawfulness of the detention. The applicant submitted that her complaint had not been adjudicated. The Government in their submissions stated, without providing any documents, that on 18 April 2003 the claim had been left without consideration owing to the repeated failure of both parties to appear. 46. On 15 April 2003 the first applicant again applied to the district court, complaining about the actions of the district prosecutor’s office. She requested the court to oblige the prosecutor’s office to carry out an investigation into her complaint concerning the detention and disappearance of her husband and to take a number of actions, such as to grant her victim status, to question her children, sister-in-law and neighbours, to collect the bullets and cartridges from her house and to identify and question those responsible for the operation. The applicant also requested the court to evaluate the damage caused to her property and identify those responsible. The applicant received no answer to this complaint. 47. On 14 May 2003 the district prosecutor’s office replied to the first applicant and stated that the investigator responsible for the case at the initial stage had been dismissed for negligence. In the context of criminal case no. 61152 the first applicant, her children and other witnesses had been questioned. The question of damage to her property was to be resolved by a court. The question of the examination of the site and collection of evidence could be resolved only if there was agreement among all residents of the household and if the evidence of the crime, such as bullets and cartridges, was still present. 48. On 15 May 2003 the applicant, during one of her visits to the district prosecutor’s office, received from an investigator a copy of the document in the case file which, as he told her, proved that her husband had been detained by the military. The “administrative report” was drawn up by the Urus-Martan military commander Colonel G. on 8 September 2002. The document stated: “I, the military commander of the Urus-Martan district Colonel G., on 8 September 2002 carried out an administrative investigation concerning the wounding of a serviceman of the military commander’s office, senior assistant to the head of the intelligence unit Captain I. The investigation established the following. On 8 September 2002 an operation was carried out under the command of Colonel G. in order to check the operative information in Urus-Martan, at the crossroads of Krasnoarmeyskaya and Budyennogo Streets. At 10.10 a.m., at 28 Krasnoarmeyskaya Street, during the inspection of the premises, bandits who were staying there mounted armed resistance. During the battle engagement a serviceman of the special forces of the Interior Troops was wounded. Upon the order of Colonel G. the district was cordoned off by the servicemen of the commander’s company, the district FSB [Federal Security Service] and the Ministry of the Interior. During the continuation of the special operation at 11.55 a.m., as a result of an exchange of fire, Captain I. received a firearm wound to the head. ... During the special operation two members of the ILG [illegal armed groups] were killed, and arms and ammunition were seized. ...The wounding of Captain I. was brought to the attention of the Urus-Martan district prosecutor.” 49. On 19 June 2003 the Chechnya Prosecutor’s Office ordered the district prosecutor’s office to check the first applicant’s submissions that her husband had been detained by the officers of the FSB during a special operation aimed at detention of their neighbour, A. The letter referred to her statements that during the special operation A. had wounded two officers of the FSB and then escaped. The FSB officers had then carried out unlawful searches in the neighbouring houses and detained Ayndi Dzhabayev at his house, after which he had disappeared. The prosecutor issued an order to investigate the applicant’s statements about the involvement of the FSB, to find her husband’s whereabouts, to decide if the case should be forwarded to the military prosecutor for further investigation and to inform the applicant and the Chechnya Prosecutor’s Office of the progress of the case. 50. On 5 August 2003 the first applicant wrote to the Chechnya Prosecutor and complained about inactivity in the investigation. She referred to the publication of 23 September 2002 and to the administrative report of 8 September 2002, copies of which she attached to the letter. The applicant suggested that only one “fighter” had been killed on 8 September 2002 and that the military had taken away her husband and later killed him in order to “boost” the figures. She stressed that the military had only released one body for burial, and that the name of the second person killed had not been disclosed. The applicant requested the prosecutor to question Colonel G., who had been in command of the operation on 8 September 2002, to identify the second person who had been killed on that day, to find out his place of burial, to transfer the case to the military prosecutor’s office, and to inform her of the results of the investigation. 51. On 22 August 2003 the applicant was granted victim status in criminal case no. 61152. The order stated that the investigation had established that “on 8 September 2002 at about 12.30 p.m. unknown persons armed with automatic weapons and wearing masks entered a private household at 26 Krasnoarmeyskaya Street, Urus-Martan, kidnapped Ayndi Dzhabayev, born in 1967, destroyed his property and left in the direction of the Urus-Martan district military commander’s office”. The decision also stated that the first applicant had suffered pecuniary and non-pecuniary damage. 52. It appears that some time in the summer of 2003 an investigator visited the applicants’ home and collected bullets from the bullet holes in the walls of their house. The applicants were not aware whether a ballistic study had been carried out on them and if so, what results it had produced. 53. On 1 September 2003 the Chechnya Prosecutor’s Office informed the first applicant that on 20 January 2003 the investigation of the criminal case into the kidnapping of her husband had been adjourned owing to failure to identify the culprits. After an additional review by the Chechnya Prosecutor’s Office, on 21 August 2003 that decision had been quashed and the case was forwarded for additional investigation to the district prosecutor’s office. 54. On 24 September 2003 the first applicant again complained to the Chechnya Prosecutor that the local prosecutor had failed to act. She asked him to identify and question the servicemen who had participated in the special operation of 8 September 2002, to question Colonel G., to identify the place of burial of the second “fighter” killed on that day, to collect bullets and cartridges from her home and to examine the site and to question her neighbours. The applicant received no response, and on 8 December 2003 again wrote to the Chechnya Prosecutor and asked him to oblige the local prosecutor to carry out the investigative actions as listed in her letters. 55. On 1 October 2003 the District Court, upon the first applicant’s request, declared her husband Ayndi Dzhabayev a missing person, with effect from 8 September 2002. The court took into account statements by two eyewitnesses about Dzhabayev’s detention by unknown persons dressed in camouflage and the first applicant’s statement that she had had no news of her husband ever since. 56. On 19 December 2003 the district prosecutor’s office informed the first applicant that the investigation into the kidnapping of Mr Dzhabayev had been resumed on 19 November 2003. On 19 December 2003 it had again been adjourned for failure to identify the culprits. The applicant was informed of the possibility of appeal to a prosecutor or to a court. 57. On 5 January 2004 the district prosecutor’s office informed the first applicant that the investigation had resumed on that day. 58. On 19 April 2004 the first applicant asked the district prosecutor’s office to inform her, as a victim, of the progress and results of the investigation and to tell her if the actions requested by her had been taken. 59. On 29 May 2004 the Urus-Martan ROVD issued a note, based on the neighbours’ statements, which described Ayndi Dzhabayev as a respectable member of the community who had had no trouble with the law. 60. On 29 December 2005 the first applicant requested the district prosecutor’s office to grant her, as a victim, access to case file no. 61152. 61. On 2 March 2006 an investigator of the district prosecutor’s office replied to her that she had no right to review the file while the proceedings were pending. Under Article 42 of the Criminal Procedural Code she could only review the documents relating to the investigative steps carried out with her participation. 62. On several occasions higher-ranking prosecutor’s offices forwarded the applicant’s complaints to the district prosecutor’s office and requested them to inform them and the applicant of the progress of the proceedings. 63. On 6 May 2006 the District Court, upon the first applicant’s application, declared her husband dead as of that day. A death certificate was issued by the district civil registration office on 15 May 2006. The place of death had not been established. 64. The first applicant furthermore submitted that on 7 December 2007 she had been summoned to the Achkhoy-Martan inter-district prosecutor’s office. There she was for the first time informed that the investigation into her husband’s kidnapping had been transferred to that office. The investigator in charge of the case questioned the first applicant who informed him of the document entitled “administrative report” (see paragraph 48 above). The investigator went through the investigation file comprising one thick folder, but did not find that document. On the following day the first applicant gave a copy of that document to the investigator. C. Information from the Government 65. In their observations the Government did not dispute the information concerning the investigation into the abduction of Ayndi Dzhabayev as presented by the applicants. Relying on information obtained from the General Prosecutor’s Office, they referred to a number of other procedural steps taken in the investigation which had not been mentioned by the applicants. However, despite specific requests from the Court, the Government did not submit copies of most of the documents to which they referred (see below). 66. With reference to the information provided by the Prosecutor General’s Office, the Government submitted that the investigation into the abduction of Ayndi Dzhabayev by “unidentified masked men in camouflage uniforms with machine guns” had commenced on 20 November 2002. The file was assigned no. 61152. 67. On 21 November 2002 the investigators questioned the third and fourth applicants, who stated that on 8 September 2002 they had heard shooting in the street, and that soon afterwards their father had been taken away by armed persons. 68. Similar statements had been given by the relatives and neighbours, including the first applicant and Fatima A., both questioned on 25 November 2002. 69. On 20 January 2003 the investigation was adjourned owing to a failure to identify the culprits. 70. On 21 August 2003 the investigation was resumed. On 22 August 2003 the first applicant was questioned and granted victim status in the proceedings. 71. On 21 September 2003 the investigation was adjourned. 72. On 17 November 2003 the investigation was resumed upon the order of the deputy to the Chechnya Prosecutor. On 20 November 2003 the investigators examined the Dzhabayevs’ house and collected two bullets and one cartridge. On 21 November 2003 the first applicant was again questioned. On the same day a ballistic study was ordered and carried out. The Government did not specify what the results were. From 5 to 10 December 2003 the investigators questioned witnesses Kheda A., Fatima A. and another neighbour. 73. On 19 December 2003 the investigation was adjourned. 74. On 4 January 2004 the investigation was resumed. On 5 January 2004 the investigators forwarded requests to the pre-trial detention centres in the Northern Caucasus and to all district prosecutors’ offices in Chechnya. 75. On 5 February 2004 the investigation was adjourned. 76. On 20 May 2004 the investigation was resumed. On 1 June 2004 the first applicant was granted the status of civil claimant in the case. 77. On 2 - 19 June 2004 the investigators questioned Roza P. and Kheda A., as well as the first applicant and some other persons (presumably neighbours). 78. On 24 June 2004 the investigation was adjourned. 79. On 20 December 2005 the investigation was resumed. On 28 December 2005 the investigators questioned Kheda A., the first, third and fourth applicants and two other persons. 80. The Government further stated that in December 2005 the investigators had questioned the head of the Urus-Martan administration, who had stated that on 8 September 2002 he had seen the cordon of servicemen in Krasnoarmeyskaya Street, but had had no information about the detention of Ayndi Dzhabayev. According to him, the district military commander, G., had been in charge of the operation, but he could not be questioned because he had died. 81. In their observations produced in March 2008 the Government indicated that on 28 December 2005 the investigation had been closed in the part concerning the damage to the applicants’ property, in view of the expiry of time-limits. They did not specify whether the applicants had been informed of this decision. 82. On 20 January 2006 the investigation was adjourned. 83. On 27 March 2006 the investigation was resumed. The Government stated that at that time Kheda A. and Roza P. had stated to the investigation that they had not been eyewitnesses to the detention of Mr Ayndi Dzhabayev. A similar statement had been made by Fatima A.’s husband, who had not been at home on the day in question. It appears that the investigation was then again adjourned. 84. In their observations of 24 March 2008 the Government additionally submitted that the investigation had resumed on 27 March 2006. A number of answers from various departments of the Ministry of the Interior and the FSB testified that these bodies had no information about Ayndi Dzhabayev’s whereabouts. 85. On 25 and 26 April 2006 the investigators questioned two neighbours of the applicants. One of them testified that on 8 September 2002 at about 11 a.m. he had been stopped at the intersection of Budennogo and Krasnoarmeyskaya Streets by a group of military servicemen wearing camouflage uniforms and armed with automatic weapons. They explained to her that a “sweeping operation” was under way and did not allow her to pass through. She also saw military vehicles, including APCs, and heard shots being fired. Later she learnt that Ayndi Dzhabayev had been kidnapped. Another neighbour testified that on that day at about 11 a.m. a group of armed men came into the courtyard of her house and ordered her, in Russian, to remain at home. About 30 minutes later she went outside and saw the dead body of a young man in the courtyard nearby. Later she learnt that the armed men had kidnapped Ayndi Dzhabayev. 86. The Government also submitted that on 30 May 2006 the head of Urus-Martan administration was again questioned. He confirmed his previous submissions that in early September 2002 he had been present at Krasnoarmeyskaya Street where a “special operation” was being carried out. He saw a large number of civilian and military persons and witnessed the military taking away the body of a man. He also saw ammunition and military gear thrown around. On 27 June 2006 the then first deputy to the Urus-Martan district administration M.G. gave similar information. He was not aware which agency had conducted the operation or of the circumstances of Dzhabayev’s kidnapping. 87. In June 2005 the investigation forwarded additional information requests to the local departments of the Interior, the FSB and the regional headquarters of the Ministry of the Interior. None of these agencies had any information about the crime, but continued to take steps to resolve it. 88. At some point the central archive of the Ministry of Defence replied to the investigation that they had no information about the conducting of a special operation in Urus-Martan on 8 September 2002. 89. Attempts to find the body of Dzhabayev among unidentified corpses had equally been futile. No criminal proceedings had been pending against Ayndi Dzhabayev either. 90. On 15 November 2007 the investigators additionally questioned the first applicant and another neighbour. The neighbour testified that she had seen armed men in camouflage uniforms in the street on 8 September 2002, but was not a witness to Dzhabayev’s kidnapping. 91. On 26 November 2007 the investigation was adjourned, of which the first applicant was informed. 92. Between 4 December 2007 and 12 March 2008 the investigation was resumed and adjourned on two more occasions; a number of information requests were sent to various bodies of the Interior and of the United Group Alliance. The aim of these requests was to obtain information about the carrying-out of the special operation of 8 September 2002 and to identify the officers of the military commander’s office of Urus-Martan. No relevant information has been obtained. 93. The investigation failed to establish the whereabouts of Mr Ayndi Dzhabayev. The investigation found no trustworthy information about the carrying-out of a special operation in Krasnoarmeyskaya Street in Urus-Martan on 8 September 2002. 94. Despite specific requests by the Court, the Government did not submit copies of any documents from the file in criminal case no. 61152, providing only several copies of decisions to suspend and resume the investigation and to grant victim status, as well as of the notifications to the first applicant of the adjournment and reopening of the proceedings. Relying on the information obtained from the Prosecutor General’s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in breach of Article 161 of the Russian Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings. D. The applicants’ property complaints 95. The applicants claimed that they had lost property as a result of unlawful acts. On 10 September 2002 the first applicant and her neighbours Roza P. and Kheda A. drew up a list of property destroyed by gunfire in her house, which included a TV, furniture, household items and clothes. 96. In October 2003 a private trading company made an evaluation of damage for the applicants, based on the average prices for the given items in the market of Urus-Martan. According to these calculations, the damage to the applicants’ property amounted to 55,460 Russian roubles (RUB). II. RELEVANT DOMESTIC LAW 97. For a summary of relevant domestic law see Akhmadova and Sadulayeva v. Russia, no. 40464/02, § 67-69, 10 May 2007. THE LAW I. THE GOVERNMENT’S PRELIMINARY OBJECTION A. Arguments of the parties 98. The Government contended that the complaint should be declared inadmissible for non-exhaustion of domestic remedies. They submitted that the first applicant had not made use of the rights accorded to her as a victim in criminal proceedings, such as lodging applications and requests with the investigators or a court. She could also have appealed to a court against the investigation decisions. The applicants were furthermore entitled to sue the investigation bodies in civil proceedings for pecuniary and non-pecuniary damage. In fact, the Government noted that in March 2003 the first applicant had turned to the District Court but had failed to appear and the proceedings had been suspended. 99. The applicants contested that objection. With reference to the Court’s practice, they argued that they had not been obliged to apply to civil courts in order to exhaust domestic remedies. They stated that the criminal investigation had proved to be ineffective and that their complaints to that effect, including the application to the court, had been futile. In the absence of any conclusions from the investigation, and since the State continued to deny its responsibility for their relative’s kidnapping, they could not realistically rely on any other remedy. B. The Court’s assessment 100. In the present case, the Court took no decision about the exhaustion of domestic remedies at the admissibility stage, having found that this question was too closely linked to the merits. It will now proceed to examine the arguments of the parties in the light of the provisions of the Convention and its relevant practice (for a relevant summary, see Estamirov and Others v. Russia, no. 60272/00, §§ 73-74, 12 October 2006). 101. The Court notes that the Russian legal system provides, in principle, two avenues of recourse for the victims of illegal and criminal acts attributable to the State or its agents, namely civil and criminal remedies. 102. As regards a civil action to obtain redress for damage sustained through the alleged illegal acts or unlawful conduct of State agents, the Court has already found in a number of similar cases that this procedure alone cannot be regarded as an effective remedy in the context of claims brought under Article 2 of the Convention (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 119-121, 24 February 2005, and Estamirov and Others, cited above, § 77). In the light of the above, the Court confirms that the applicants were not obliged to pursue civil remedies. The preliminary objection in this regard is thus dismissed. 103. As regards criminal-law remedies, the Court observes that the applicants complained to the law-enforcement authorities immediately after the detention of Ayndi Dzhabayev and that an investigation has been pending since November 2002. The applicants and the Government dispute the effectiveness of this investigation. 104. The Court considers that this limb of the Government’s preliminary objection raises issues concerning the effectiveness of the criminal investigation which are closely linked to the merits of the applicants’ complaints. Thus, it considers that these matters fall to be examined below under the substantive provisions of the Convention. II. THE COURT’S ASSESSMENT OF THE EVIDENCE AND THE ESTABLISHMENT OF THE FACTS A. The parties’ arguments 105. The applicants maintained that it was beyond reasonable doubt that the men who had intruded into their home and taken away Ayndi Dzhabayev had been State agents. In support of their complaint they referred to the fact that a “sweeping” operation had taken place in Urus-Martan on 8 September 2002, as supported by a large amount of evidence in the file. The applicants referred to statements by witnesses, including the press and local officials, to the effect that on the day of the incident they had seen military vehicles and armed men walking towards the building of the local military commander’s office. 106. The Government submitted that on 8 September 2002 Ayndi Dzhabayev had disappeared from his house. While in their observations of April 2006 they accepted as an established fact that he had been taken away by unidentified armed men who had also destroyed the applicants’ property, in their latest submissions of 24 March 2008 they argued that there was not enough information to conclude that a kidnapping had taken place. They stressed that no eyewitnesses had testified that Mr Dzhabayev had been taken away by the armed men, but rather that he had last been seen in the courtyard of his house in the presence of armed men. In such circumstances, the Government suggested, it could not be excluded that Mr Dzhabayev had gone away on his own or escaped, as might be suggested by the information referred to by some witnesses with reference to security forces. The Government argued that kidnapping remained only one version of the events under investigation, albeit the principal one. They concluded that since there was no proof that Mr Dzhabayev had been kidnapped, there were no grounds to suspect that State agents had been involved in the crime. They further argued that there was no convincing evidence that the applicants’ relative was dead, given that his whereabouts had not been established and his body had not been found. B. Article 38 § 1 (a) and consequent inferences drawn by the Court 107. The Court has on many occasions reiterated that the Contracting States are required to furnish all necessary facilities to the Court and that a failure on a Government’s part to submit information which is in their hands, without a satisfactory explanation, may reflect negatively on the level of compliance by a respondent State with its obligations under Article 38 § 1 (a) of the Convention (see Timurtaş v. Turkey, no. 23531/94, § 66, ECHR 2000-VI). 108. In the present case the applicants alleged that their relative had been illegally arrested by the authorities and had then disappeared. They also alleged that no proper investigation had taken place. In view of these allegations, the Court asked the Government to produce documents from the criminal investigation file opened in relation to the kidnapping. The evidence contained in that file was regarded by the Court as crucial to the establishment of the facts in the present case. 109. The Government confirmed the principal facts as presented by the applicants. They refused to disclose any of the documents of substance from the criminal investigation file, relying on Article 161 of the Code of Criminal Procedure. The Government also argued that the Court’s procedure contained no guarantees as to the confidentiality of documents, in the absence of sanctions against applicants in the event of a breach of the obligation not to disclose the contents of such documents to the public. They cited, by way of comparison, the Rome Statute of the International Criminal Court of 17 July 1998 (Articles 70 and 72) and the Statute of the International Criminal Tribunal for the former Yugoslavia (Articles 15 and 22) and argued that these instruments provided for personal responsibility for a breach of the rules of confidentiality and laid down a detailed procedure for the pre-trial examination of evidence. 110. The Court notes that Rule 33 § 2 of the Rules of Court permits a restriction on the principle of the public character of documents deposited with the Court for legitimate purposes, such as the protection of national security, the private life of the parties or the interests of justice. The Court cannot speculate as to whether the information contained in the criminal investigation file in the present case was indeed of such nature, since the Government did not request the application of this Rule and it is the obligation of the party requesting confidentiality to substantiate its request. 111. Furthermore, the two international courts whose statutes were cited by the Government operate in the context of international criminal prosecution of individuals and have jurisdiction over offences contrary to their own administration of justice. The Court observes that it has previously stated that criminal-law liability is distinct from international-law responsibility under the Convention. The Court’s competence is confined to the latter and is based on its own provisions, which are to be interpreted and applied on the basis of the objectives of the Convention and in the light of the relevant principles of international law (see, mutatis mutandis, Avşar v. Turkey, no. 25657/94, § 284, ECHR 2001‑VII). 112. The Court lastly notes that it has already found on a number of occasions that the provisions of Article 161 of the Code of Criminal Procedure do not preclude the disclosure of documents from a pending investigation file, but rather set out a procedure for and limits to such disclosure (see Mikheyev v. Russia, no. 77617/01, § 104, 26 January 2006, and Imakayeva v. Russia, no. 7615/02, § 123, ECHR 2006‑XIII). For these reasons the Court considers the Government’s explanation insufficient to justify the withholding of the key information requested by it. 113. Reiterating the importance of a respondent Government’s cooperation in Convention proceedings, the Court finds that there has been a breach of the obligation laid down in Article 38 § 1 (a) of the Convention to furnish all necessary facilities to assist the Court in its task of establishing the facts. C. The Court’s evaluation of the facts 114. First, the Court notes that on 3 October 2003 the Urus-Martan District Court declared Ayndi Dzhabayev a missing person following his kidnapping by unknown armed persons from his house on 8 September 2002. On 6 May 2006 the same court declared him dead. These domestic decisions remain valid, their conclusions were not challenged by the Government and the Court will accept them as established facts. The parties’ remaining arguments concern State responsibility for the death. 115. The Court observes that it has developed a number of general principles relating to the establishment of facts in dispute, in particular when faced with allegations of disappearance under Article 2 of the Convention (for a summary of these, see Bazorkina v. Russia, no. 69481/01, §§ 103-109, 27 July 2006). The Court also notes that the conduct of the parties when evidence is being obtained has to be taken into account (see Ireland v. the United Kingdom, cited above, § 161). In view of this and bearing in mind the principles referred to above, the Court finds that it can draw inferences from the Government’s conduct in respect of the well-foundedness of the applicants’ allegations. The Court will thus proceed to examine crucial elements in the present case when deciding whether the death of the applicants’ relative can be attributed to the authorities. 116. The applicants alleged that the persons who had taken Ayndi Dzhabayev away on 8 September 2002 and then killed him had been State agents. The Government did not dispute any of the essential factual elements underlying the application and did not provide a different explanation of the events. 117. The Court notes that the applicants and the neighbours stated that there had been a special operation on 8 September 2002 in their street. The armed servicemen had cordoned off an area in the town, checked the identity documents of the residents and had spoken Russian among themselves and to the residents. The witnesses also indicated that the men had then gone towards the building of the local military commander’s office, and referred to the use of military vehicles such as APCs, which could not be available to paramilitary groups. The witnesses themselves had been convinced that this was a security operation. Importantly, information about the carrying-out of a security operation was confirmed by senior civil servants in the town and district administrations and by information published in the newspaper (see paragraphs 22, 39 and 80 above). In their applications to the authorities the applicants consistently maintained that their relative had been detained by unknown servicemen and requested the investigation to look into that possibility (see paragraphs 41, 45, 46, 49, 50, 54 and 86 above). Lastly, the Government did not question the validity of the “administrative report” drawn up by the military commander of Urus-Martan on 8 September 2002 and describing the actions of the military and security forces on that day in Krasnoarmeyskaya and Budennogo Streets (see paragraph 48 above). 118. The Court finds that all the material reviewed by it supports the applicants’ allegation that there was a special operation carried out by State servicemen. The domestic investigation also accepted factual assumptions as presented by the applicants and took steps to check the involvement of law-enforcement bodies in the arrest. The investigation was unable to establish which precise military or security units had carried out the operation, but it does not appear that any serious steps were taken in that direction. 119. The Court observes that where the applicants make out a prima facie case and the Court is prevented from reaching factual conclusions owing to the lack of such documents, it is for the Government to argue conclusively why the documents in question cannot serve to corroborate the allegations made by the applicants, or to provide a satisfactory and convincing explanation of how the events in question occurred. The burden of proof is thus shifted to the Government and if they fail in their arguments, issues will arise under Article 2 and/or Article 3 (see Toğcu v. Turkey, no. 27601/95, § 95, 31 May 2005, and Akkum and Others v. Turkey, no. 21894/93, § 211, ECHR 2005‑II). 120. Taking into account the above elements, the Court is satisfied that the applicants have made a prima facie case that their relative was detained by State servicemen. The Government’s statement that the investigation did not find any evidence to support the involvement of the special forces in the abduction is insufficient to discharge them from the above-mentioned burden of proof. Drawing inferences from the Government’s failure to submit the documents which were in their exclusive possession or to provide another plausible explanation of the events in question, the Court considers that Ayndi Dzhabayev was arrested on 8 September 2002 at his house in Urus-Martan by State servicemen during an unacknowledged security operation. 121. There has been no reliable news of the applicants’ relative since 8 September 2002. His name has not been found in any official detention facilities’ records. Lastly, the Government did not submit any explanation as to what had happened to him after his arrest. On 6 May 2006 he was declared dead by the District Court. 122. The Court notes with great concern that a number of cases have come before it which suggest that the phenomenon of “disappearances” is well known in Chechnya (see, among others, Bazorkina, cited above; Imakayeva, cited above; Luluyev and Others v. Russia, no. 69480/01, ECHR 2006‑... (extracts); Baysayeva v. Russia, no. 74237/01, 5 April 2007; Akhmadova and Sadulayeva v. Russia, cited above; and Alikhadzhiyeva v. Russia, no. 68007/01, 5 July 2007). A number of international reports point to the same conclusion. The Court has already noted above that it has been unable to benefit from the results of the domestic investigation, owing to the Government’s failure to disclose most of the documents from the file. Nevertheless, it is clear that the investigation did not identify the perpetrators of the kidnapping. The Court reiterates that in a case involving disappearance, it is particularly regrettable that there should have been no thorough investigation of the relevant facts by the domestic prosecutors or courts. The few documents submitted by the Government from the investigation file do not suggest any progress in five and a half years and, if anything, show the incomplete and inadequate nature of those proceedings. Moreover, the stance of the prosecutor’s office and the other law-enforcement authorities after the news of the relative’s detention had been communicated to them by the applicants contributed significantly to the likelihood of the disappearance, as no necessary steps were taken in the crucial first days and weeks after the arrest. The authorities’ conduct in the face of the applicants’ well-substantiated complaints gives rise to a strong presumption of at least acquiescence in the situation and raises strong doubts as to the objectivity of the investigation. 123. For the above reasons the Court considers that it has been established beyond reasonable doubt that Ayndi Dzhabayev died following his unacknowledged detention by State servicemen. The Court also finds it established that the lack of a proper investigation into the abduction contributed to the eventual disappearance. III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 124. The applicants complained under Article 2 of the Convention that their relative had disappeared after having been detained by Russian servicemen and that the domestic authorities had failed to carry out an effective investigation of the matter. Article 2 reads: “1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” A. The alleged violation of the right to life of Ayndi Dzhabayev 125. The applicants maintained their complaint. 126. The Government referred to the fact that the investigation had obtained no evidence to the effect that this person was dead, or that representatives of the State had been involved in his abduction or alleged killing. 127. It has already been established that the applicants’ relative died following an unacknowledged arrest by State servicemen and that the death can be attributed to the State. In the absence of any justification in respect of the use of lethal force by State agents, the Court finds that there has been a violation of Article 2 in respect of Ayndi Dzhabayev. B. The alleged inadequacy of the investigation into the abduction 128. The applicants argued that the investigation had not met the requirements of effectiveness and adequacy, as required by the Court’s case-law on Article 2. They noted that it had been opened after some delay, that it was adjourned and reopened a number of times, and that the taking of the most basic steps had thus been protracted, and that they had not been informed properly of the most important investigative steps. They argued that the fact that the investigation had been pending for such a long period of time without producing any known results had been further proof of its ineffectiveness. The applicants stressed that one of the most important documents in the case file, the “administrative report” about the special operation of 8 September 2002, had gone missing from the file (see paragraph 64 above). The applicants invited the Court to draw conclusions from the Government’s unjustified failure to submit the documents from the case file to them or to the Court. 129. The Government claimed that the investigation met the Convention requirement of effectiveness, as all measures envisaged in national law were being taken to identify the perpetrators. They argued that the first applicant had been granted victim status and had had every opportunity to participate effectively in the proceedings. 130. The Court has on many occasions stated that the obligation to protect the right to life under Article 2 of the Convention also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force. It has developed a number of guiding principles to be followed for an investigation to comply with the Convention’s requirements (for a summary of these principles see Bazorkina, §§ 117-119, cited above). 131. In the present case, an investigation into the abduction was carried out. The Court must assess whether that investigation met the requirements of Article 2 of the Convention. 132. The Court notes at the outset that most of the documents from the investigation were not disclosed by the Government. It therefore has to assess the effectiveness of the investigation on the basis of the few documents submitted by the parties and the information about its progress presented by the Government. 133. Turning to the facts of the case, the Court notes that the authorities were immediately made aware of the crime through the applicants’ submissions. Despite that, the investigation was opened on 20 November 2002, two and a half months after the detention occurred. This delay in itself was liable to affect the investigation of a crime such as abduction in life-threatening circumstances, where crucial action has to be taken in the first days after the event. It also appears that in the following weeks the applicants and some of their neighbours were questioned. Subsequently, however, a number of crucial steps were apparently delayed and eventually taken much later, or were not taken at all. 134. In particular, the Court notes that the first applicant was granted victim status only in August 2003, the crime scene was inspected in November 2003, and the applicant’s relatives and neighbours were questioned in December 2003 and June 2004. The head of the district administration was questioned for the first time in December 2005, and his deputy not until June 2006. Information from the relevant bodies of the Ministry of the Interior and the FSB about the conducting of a special operation was requested for the first time in 2005 (see the Government’s submissions about the progress of the investigation, paragraphs 66-92 above). 135. It is obvious that these measures, if they were to produce any meaningful results, should have been taken immediately after the crime was reported to the authorities, and as soon as the investigation had commenced. These delays, for which there has been no explanation in the instant case, not only demonstrate the authorities’ failure to act of their own motion but also constitute a breach of the obligation to exercise exemplary diligence and promptness in dealing with such a serious crime (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 86, ECHR 2002-II). 136. A number of essential steps were never taken. Most significantly, it does not appear that the investigators sought to identify or question any of the servicemen who had conducted the operation in Urus-Martan and might have been involved in Ayndi Dzhabayev’s detention. Despite the presence of ample evidence in the file, as late as 2008 the investigators were still trying to find out whether the operation had taken place and to identify the officers of the Urus-Martan military commander’s office (see paragraph 92 above). 137. The Court also notes that even though the first applicant was eventually granted victim status, she was only informed of the adjournment and reopening of the proceedings, and not of any other significant developments. Accordingly, the investigators failed to ensure that the investigation received the required level of public scrutiny, or to safeguard the interests of the next of kin in the proceedings. 138. Lastly, the Court notes that the investigation was adjourned and resumed on no less than nine occasions, for no apparent reasons and sometimes without taking the most basic procedural steps between adjournments. 139. The Government refer to a possibility for the applicants to apply for judicial review of the decisions of the investigating authorities in the context of exhausting domestic remedies. The Court observes that the applicants, having no access to the case file and not being properly informed of the progress of the investigation, could not have effectively challenged actions or omissions of investigating authorities before a court. Furthermore, the investigation was resumed by the prosecuting authorities themselves a number of times owing to the need to take additional investigative steps. However, they still failed to investigate the applicants’ allegations properly. Moreover, owing to the time that had elapsed since the events complained of, certain investigative measures that ought to have been taken much earlier could no longer usefully be conducted. Therefore, it is highly doubtful that the remedy relied on would have had any prospects of success. Accordingly, the Court finds that the remedy relied on by the Government was ineffective in the circumstances and dismisses their preliminary objection as regards the applicants’ failure to exhaust domestic remedies within the context of the criminal investigation. 140. In the light of the foregoing, the Court dismisses the Government’s preliminary objection as regards the applicants’ failure to exhaust domestic remedies within the context of the criminal investigation, and holds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance of Ayndi Dzhabayev, in breach of Article 2 in its procedural aspect. IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 141. The applicants further relied on Article 3 of the Convention, submitting that as a result of their relative’s disappearance and the State’s failure to investigate those events properly, they had endured mental suffering in breach of Article 3 of the Convention. Article 3 reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment. ” 142. The Government disagreed with these allegations and argued that, in the absence of any evidence suggesting that the applicants’ relative had been abducted by representatives of the authorities, there were no grounds for alleging a violation of Article 3 of the Convention on account of the applicants’ mental suffering. 143. The Court has found on many occasions that in a situation of enforced disappearance close relatives of the victim may themselves be victims of treatment in violation of Article 3. The essence of such a violation does not mainly lie in the fact of the “disappearance” of the family member but rather concerns the authorities’ reactions and attitudes to the situation when it is brought to their attention (see Orhan v. Turkey, no. 25656/94, § 358, 18 June 2002, and Imakayeva, cited above, § 164). 144. In the present case the Court notes that the applicants are the wife and children of the individual who has disappeared. The second, third and fourth applicants, who are minors, were eyewitnesses to the arrest of their father. For more than six years they have not had any news of him. During this period the applicants have applied to various official bodies with enquiries about their family member, both in writing and in person. Despite their attempts, they have never received any plausible explanation or information as to what became of him following his detention. The responses received by the applicants mostly denied that the State was responsible for his arrest or simply informed them that an investigation was ongoing. The Court’s findings under the procedural aspect of Article 2 are also of direct relevance here. 145. The Court therefore finds that the applicants suffered, and continue to suffer, distress and anguish as a result of the disappearance of their close relative and their inability to find out what happened to him. The manner in which their complaints have been dealt with by the authorities must be considered to constitute inhuman treatment in breach of Article 3. V. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 146. The applicants further stated that Ayndi Dzhabayev had been detained in violation of the guarantees of Article 5 of the Convention, which reads, in so far as relevant: “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:... (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; ... 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” 147. In the Government’s opinion, no evidence was obtained by the investigators to confirm that Ayndi Dzhabayev had been detained in breach of the guarantees set out in Article 5 of the Convention. He was not listed among the persons held in detention centres. 148. The Court has previously noted the fundamental importance of the guarantees contained in Article 5 to secure the right of individuals in a democracy to be free from arbitrary detention. It has also stated that unacknowledged detention is a complete negation of these guarantees and discloses a very grave violation of Article 5 (see Çiçek v. Turkey, no. 25704/94, § 164, 27 February 2001, and Luluyev, cited above, § 122). 149. The Court has found it established that Ayndi Dzhabayev was detained by State servicemen on 8 September 2002 and has not been seen since. His detention was not acknowledged, was not logged in any custody records and there exists no official trace of his subsequent whereabouts or fate. In accordance with the Court’s practice, this fact in itself must be considered a most serious failing, since it enables those responsible for an act of deprivation of liberty to conceal their involvement in a crime, to cover their tracks and to escape accountability for the fate of a detainee. Furthermore, the absence of detention records, noting such matters as the date, time and location of detention and the name of the detainee as well as the reasons for the detention and the name of the person effecting it, must be seen as incompatible with the very purpose of Article 5 of the Convention (see Orhan, cited above, § 371). 150. The Court further considers that the authorities should have been more alert to the need for a thorough and prompt investigation of the applicants’ complaints that their relative had been detained and taken away in life-threatening circumstances. However, the Court’s findings above in relation to Article 2 and, in particular, the conduct of the investigation leave no doubt that the authorities failed to take prompt and effective measures to safeguard him against the risk of disappearance. 151. Consequently, the Court finds that Ayndi Dzhabayev was held in unacknowledged detention without any of the safeguards contained in Article 5. This constitutes a particularly grave violation of the right to liberty and security enshrined in Article 5 of the Convention. VI. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 152. The applicants stated that they had been deprived of access to a court, contrary to the provisions of Article 6 of the Convention, the relevant parts of which provide: ”In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal... ” 153. The Government disputed this allegation. 154. The Court finds that the applicants’ complaint under Article 6 concerns essentially the same issues as those discussed under the procedural aspect of Article 2 and under Article 13. In these circumstances, the Court finds that no separate issues arise under Article 6 of the Convention. VII. ALLEGED VIOLATIONS OF ARTICLE 8 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL NO 1 TO THE CONVENTION 155. The applicants alleged that the disappearance of their relative had amounted to a violation of their right to family life. They also complained that the search carried out at their house on 8 September 2002 had been illegal and constituted a violation of their right to respect for their home. It thus disclosed a violation of Article 8 of the Convention. They also referred to the damage caused to their property during the search and relied on Article 1 of Protocol No. 1 to the Convention. These Articles provide as follows: Article 8 “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 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. ” Article 1 of Protocol No. 1 (protection of property) “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 156. The Government objected that those complaints were unfounded. In so far as the applicants complained about the search, the Government stressed that in the investigation no information had been found to support the applicants’ claim that a search had taken place. They informed the Court that in December 2005 criminal proceedings in respect of damage to the applicants’ property had been closed owing to the expiry of time-limits. 157. In so far as the applicants complained about the disappearance of their husband and father under Article 8 of the Convention, the Court observes that these complaints concern the same facts as those examined under Articles 2 and 3 and, having regard to its conclusion under those provisions, considers it unnecessary to examine them separately. 158. In so far as the complaint relates to the unauthorised search and the damage to their property, the Court notes that the applicants have submitted to the Court their own testimonies, as well as testimonies of their neighbours, which confirmed that on 8 September 2002 a search had been carried at their home by the same armed persons who had detained Ayndi Dzhabayev, after which their property had been damaged (see paragraphs 21, 24 and 95). Furthermore, this information was communicated by them to the domestic law-enforcement authorities, which investigated the events under the head of damage to property and granted the first applicant victim status in this connection (see paragraph 51). Although the Government denied State responsibility for the acts in question, the Court has already found it established that the persons who entered the applicants’ home and detained their relative belonged to the military or security forces. Therefore, the acts in question are imputable to the respondent Government. 159. In so far as the Government claimed that the investigation in this connection had been closed on 28 December 2005, the Court remarks that this information was submitted by the Government only in March 2008, and without producing any documents (see paragraph 81 above). It is unclear whether the first applicant was ever made aware of this development. The Court notes that on 29 December 2005 the first applicant requested the investigator to grant her access to the investigation file, but that request was turned down in March 2006 (see paragraphs 60-61 above). She therefore could not find out about this development by consulting the file either. Thus, the applicant could not appeal against this decision. 160. Accordingly, there was an interference with the applicants’ right to respect for their home and for the protection of their property. In the absence of any reference on the part of the Government to the lawfulness and proportionality of these measures, the Court finds that there has been a violation of the applicants’ rights guaranteed by Article 8 of the Convention and by Article 1 of Protocol No. 1 to the Convention. VIII. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 161. The applicants complained that they had been deprived of effective remedies in respect of the aforementioned violations, contrary to Article 13 of the Convention, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 162. The Government contended that the applicants had had effective remedies at their disposal as required by Article 13 of the Convention and that the authorities had not prevented them from using those remedies. In particular, the applicants had had an opportunity to appeal to a court against the actions or omissions of the investigating authorities. They referred to Article 125 of the Code of Criminal Procedure, which allowed participants in criminal proceedings to complain to a court about measures taken during an investigation. This was an effective remedy to ensure the observation of their rights. The applicants had not made use of this possibility, which required the initiative of the participants in criminal proceedings, and thus the absence of court action could not constitute a violation of Article 13. 163. The Court reiterates that in circumstances where, as here, the criminal investigation into a violent death was ineffective and the effectiveness of any other remedy that might have existed, including civil remedies, was consequently undermined, the State has failed in its obligation under Article 13 of the Convention (see Khashiyev and Akayeva, cited above, § 183). 164. The Court notes, equally, that it found above that in the present case the first applicant had no means of appealing against the decision to terminate criminal proceedings in relation to her complaints about an unlawful search and damage to her property (see paragraph 159 above). 165. Consequently, there has been a violation of Article 13 in conjunction with Articles 2 and 8 of the Convention and Article 1 of Protocol No. 1. 166. As regards the applicants’ reference to Articles 3 and 5 of the Convention, the Court considers that, in the circumstances, no separate issue arises in respect of Article 13 in conjunction with Articles 3 and 5 of the Convention (see Kukayev v. Russia, no. 29361/02, § 119, 15 November 2007, and Aziyevy v. Russia, no. 77626/01, § 118, 20 March 2008). IX APPLICATION OF ARTICLE 41 OF THE CONVENTION 167. 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. Pecuniary damage 1. Damage to the applicants’ property 168. First, the applicants claimed compensation for damage caused to their property. They referred to the list of damaged household items drawn up by the first applicant and her neighbours on 10 September 2002, as well as to the document issued by a local trading company in October 2003 (see paragraphs 95-96 above). They claimed a total of 55,460 Russian roubles (RUB; equivalent to 1,509 euros (EUR)) under this head. 169. The Government did not make any comments on this claim, apart from denying State responsibility for the imputed acts. 170. The Court reiterates that there must be a clear causal connection between the damage claimed by the applicant and the violation of the Convention. Furthermore, under Rule 60 of the Rules of Court any claim for just satisfaction must be itemised and submitted in writing together with the relevant supporting documents or vouchers, “failing which the Chamber may reject the claim in whole or in part”. 171. The Court has found above that the applicants suffered a violation of Article 1 of Protocol No. 1 as a result of the actions of unidentified State agents. The Court agrees that the applicants must have borne some costs in relation to this, and that there is a clear causal connection between these costs and the violation found above. 172. As to the amount of the losses, the Court notes that at the time of their initial submissions the applicants submitted a list of damaged property, drawn up by the first applicant and two neighbours on 10 September 2002, two days after the incident. In 2003 the applicants obtained a calculation of costs of similar items at the market in Urus-Martan. On 15 April 2003 the first applicant requested the Urus-Martan court to evaluate the damage to her property, but this complaint has not been reviewed. The domestic investigation reached no conclusions in this connection either. The Government did not dispute the method of the applicants’ calculations. 173. In these circumstances, the Court awards the amount of EUR 1,509 to the applicants jointly, as compensation for the pecuniary losses sustained. 2. Damage resulting from the loss of earnings 174. The applicants also sought an award in respect of Ayndi Dzhabayev’s lost wages after his arrest and subsequent disappearance. The first applicant claimed a total of RUB 108,814 (EUR 2,947) under this head, the second applicant claimed RUB 172,510 (EUR 4,672), the third applicant claimed RUB 134,037 (EUR 3,630) and the fourth applicant claimed RUB 112,795 (EUR 3,055). 175. They claimed that Ayndi Dzhabayev had been employed as a bricklayer in a private construction company, with an annual salary of RUB 79,836. They submitted an undated certificate from a limited liability company “Kavkaz” to the effect that Ayndi Dzhabayev had earned there as a bricklayer the following amounts: January – RUB 6,444, February – RUB 6,784, March – RUB 7,150, April – RUB 5,748, May – RUB 6,200, June – RUB 6,920 and July – RUB 7,200. The applicants submitted that his average monthly salary for 2002 was thus RUB 6,653. The applicants also submitted a certificate issued on 9 October 2003 by the Urus-Martan administration to the effect that the applicants had been dependent on Ayndi Dzhabayev prior to his disappearance. 176. The second, third and fourth applicants claimed that they would have been financially dependent on their father from September 2002 until the time the youngest of the applicants reached the age of majority at 18, and the first applicant claimed that she would have been dependent on her husband until the youngest child reached the age of 14. Each of the applicants could count on 20% of the total earnings for the respective periods. 177. The Government regarded these claims as based on suppositions and unfounded. They argued first that it had not been established that Ayndi Dzhabayev was dead and that the State authorities had been responsible for his death. They also argued that since he had been declared dead in domestic proceedings, the applicants could obtain compensation for the loss of a breadwinner at domestic level. 178. In so far as the applicants sought to recover the loss of earnings of their husband and father, the Court finds that there is a direct causal link between the violation of Article 2 in respect of Ayndi Dzhabayev and the loss by the applicants of the financial support which he could have provided. The Court further finds that the loss of earnings also applies to the dependent children and that it is reasonable to assume that Ayndi Dzhabayev would have had earnings from which the applicants would have benefited (see, among other authorities, Imakayeva cited above, § 213). However, the Court cannot accept the undated certificate submitted by the applicants as the sole conclusive evidence of Ayndi Dzhabayev’s annual earnings. Having regard to the applicants’ submissions, the Court awards EUR 10,000 to the applicants jointly in respect of pecuniary damage, plus any tax that may be chargeable on that amount. B. Non-pecuniary damage 179. The applicants claimed EUR 100,000 each in respect of non-pecuniary damage for the suffering they had endured as a result of the loss of their husband and father and the indifference shown by the authorities towards them. 180. The Government found the amounts claimed exaggerated. 181. The Court has found a violation of Articles 2, 5 and 13 of the Convention on account of the unacknowledged detention and disappearance of the applicants’ relative. The applicants themselves have been found to be victims of violations of Articles 3 and 8 of the Convention. The Court accepts that they have suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations. It awards to the applicants jointly EUR 35,000, plus any tax that may be chargeable thereon. C. Costs and expenses 182. The applicants were represented by lawyers from the NGO EHRAC/Memorial Human Rights Centre. The aggregate claim in respect of costs and expenses related to the applicants’ legal representation amounted to 1,837 pounds sterling (GBP). They claimed that for reasons related to the application of Russian legislation they could not claim sums for the work performed by their Moscow-based lawyers. As to the legal work by a United Kingdom-based lawyer, they sought GBP 300 for three hours at a rate of GBP 100 per hour. They also claimed GBP 1,362 for translation costs, as certified by invoices, and GBP 70 for administrative and postal costs. 183. The Government disputed, in general terms, the reasonableness of and justification for the amounts claimed under this head. 184. Having regard to the details of the information, the Court is satisfied that these rates are reasonable and reflect the expenses actually and necessarily incurred by the applicants’ representatives (see McCann and Others, cited above, § 220). 185. The Court awards the amount of GBP 1,837, to be paid in pounds sterling into the representatives’ bank account in the United Kingdom, as identified by the applicants. D. Default interest 186. 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 1. Dismisses the Government’s preliminary objection; 2. Holds that there has been a failure to comply with Article 38 § 1 (a) of the Convention in that the Government have refused to submit documents requested by the Court; 3. Holds that there has been a violation of Article 2 of the Convention in respect of Ayndi Dzhabayev; 4. Holds that there has been a violation of Article 2 of the Convention in respect of the failure to conduct an effective investigation into the circumstances in which Ayndi Dzhabayev disappeared; 5. Holds that there has been a violation of Article 3 on account of the applicants’ mental suffering; 6. Holds that there has been a violation of Article 5 of the Convention in respect of Ayndi Dzhabayev; 7. Holds that no separate issues arise under Article 6 of the Convention or under Article 8, in so far as the applicants complained of a violation of their right to family life; 8. Holds that there has been a violation of Article 8 of the Convention in respect of the search at the applicants’ home; 9. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention in respect of the damage caused to the applicants’ property; 10. Holds that there has been a violation of Article 13 of the Convention in respect of the alleged violations of Articles 2 and 8 of the Convention and of Article 1 of Protocol No. 1 to the Convention; 11. Holds that no separate issues arise under Article 13 of the Convention in respect of the alleged violations of Articles 3 and 5; 12. Holds (a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts: (i) EUR 1,509 (one thousand five hundred and nine euros) to the applicants jointly, plus any tax that may be chargeable, to be converted into Russian roubles at the rate applicable at the date of settlement, in respect of pecuniary damage caused to the applicants’ property; (ii) EUR 10,000 (ten thousand euros) to the applicants jointly, plus any tax that may be chargeable, to be converted into Russian roubles at the rate applicable at the date of settlement, in respect of pecuniary damage resulting from the loss of earnings; (iii) EUR 35,000 (thirty-five thousand euros) to the applicants jointly, plus any tax that may be chargeable, to be converted into Russian roubles at the rate applicable at the date of settlement, in respect of non-pecuniary damage; (iv) GBP 1,837 (one thousand eight hundred and thirty-seven pounds sterling), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be paid into the representatives’ bank account in the United Kingdom; (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; 13. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 8 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident

FIRST SECTION CASE OF PERICA OREB v. CROATIA (Application no. 20824/09) JUDGMENT STRASBOURG 31 October 2013 FINAL 31/01/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Perica Oreb v. Croatia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Isabelle Berro-Lefèvre, President, Elisabeth Steiner, Khanlar Hajiyev, Mirjana Lazarova Trajkovska, Julia Laffranque, Ksenija Turković, Dmitry Dedov, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 8 October 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 20824/09) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Perica Oreb (“the applicant”), on 26 March 2009. 2. The applicant was represented by Mr T. Vukičević, a lawyer practising in Split. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3. On 12 March 2010 the President of the First Section decided to communicate the complaint under Article 5 § 3 of the Convention concerning the length of and the reasons for the applicant’s pre-trial detention and the complaint under Article 5 § 4 of the Convention about the failure of the Constitutional Court to decide the applicant’s constitutional complaints on the merits, to the Government. On 12 March 2013 further observations were requested under Article 6 § 2 of the Convention concerning the applicant’s right to be presumed innocent. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1982 and lives in Split. A. Criminal proceedings against the applicant 5. On 1 August 2008 an investigating judge of the Split County Court (Županijski sud u Splitu) opened a criminal investigation in respect of the applicant and seventeen other persons for conspiracy to supply heroin and cocaine in Croatia and Bosnia and Herzegovina in the period between 10 January and 30 July 2008. 6. At a hearing held on 7 August 2008 before the investigating judge, the applicant stated that he had decided to remain silent. The investigating judge heard evidence from another suspect. 7. On 11 August 2008 the investigating judge heard evidence from two other suspects. On the same day he asked for the applicant’s criminal record, which was submitted on 12 August 2008 with a note that he had not been previously convicted of any criminal offence. 8. On 20 August 2008 the investigating judge commissioned a psychiatric report on eleven defendants, including the applicant, in order to assess their mental state at the time the criminal offence was committed and whether they were drug addicts. 9. On 8 September 2008 a psychiatric report commissioned for the purposes of the investigation was submitted by a psychiatrist of the Split Medical Faculty. As regards the applicant, the report stated that he was a long-term drug addict who had received treatment on two occasions but with no lasting results. He had resumed taking drugs a few months before. Since being detained he had been on Heptanon therapy which helped him to overcome his withdrawal symptoms. It was recommended that he continued with that therapy. 10. On 16 September 2008 the investigating judge heard evidence from six witnesses, police officers who conducted the police inquiry prior to the institution of the criminal proceedings. 11. On 24 October 2008 the investigating judge heard evidence from another suspect and on 29 and 31 October 2008 from four further police officers. On 7 November 2008 he heard evidence from another two suspects. 12. On 21 January 2009 the State Attorney’s Office for the Prevention of Corruption and Organised Crime preferred charges of conspiracy to supply heroin and cocaine in Croatia and Bosnia and Herzegovina in the period between 10 January and 30 July 2008 against the applicant and seventeen other defendants in the Split County Court. 13. On 29 January 2009 the applicant lodged an appeal against the bill of indictment (prigovor protiv optužnice). By 4 February 2011 all the other defendants had also lodged their objections. 14. On 4 March 2009 the Supreme Court returned the bill of indictment to the State Attorney’s Office asking it to submit, within three days, a request to take further investigative steps. 15. On 10 March 2009 the State Attorney’s Office asked the investigating judge to take further steps. 16. On 13 March 2009 the investigating judge ordered a transcript of all telephone conversations between the defendants, previously tapped by the police. 17. On 12 June 2009 an expert in telecommunications submitted his report with a transcript of those telephone conversations. The transcript comprises 568 pages. 18. On 16 June 2009 the State Attorney’s Office submitted the same indictment to the Split County Court. 19. On 1 July 2009 the applicant reiterated his objection to the indictment. He also requested that the evidence obtained by the police tapping of his telephone be excluded from the case file. The other defendants also lodged their objections. 20. On 8 September 2009 the Supreme Court dismissed the objections to the indictment and refused the applicant’s request to exclude from the case file all evidence obtained by the police tapping of his telephone. 21. The first hearing scheduled for 26 April 2010 in the Split County Court was adjourned because two defendants did not appear. One of them had been sent to Zagreb Prison Hospital for treatment and the other was in another medical institution. On the same day the presiding judge ordered psychiatric report in respect of two defendants. The report was submitted on 4 May 2010. 22. A hearing before the Split County Court was held on 8 June 2010 and all the defendants stated that they would give their defence at end of the trial. 23. At hearings held on 9, 10 and 11 June 2010 eight witnesses and the expert in psychiatry gave their evidence. 24. At hearings held on 19 and 20 July 2010 four witnesses gave their evidence. 25. At a hearing held on 21 July 2010 the County Court refused the request by the defence to exclude from the case file recordings of the defendants’ conversations. 26. At a hearing held on 14 September 2010 the majority of the defendants, including the applicant, pleaded guilty and two further witnesses gave their evidence. 27. Further hearings were held on 16 and 20 September 2010 and at the latter hearing a judgment was adopted, finding the applicant guilty and sentencing him to three years’ imprisonment. His detention was lifted. 28. Some of the defendants lodged appeals against the first-instance judgment and the proceedings are currently pending before the Supreme Court. B. Decisions on the applicant’s detention 29. On 1 August 2008 an investigating judge of the Split County Court ordered all the suspects to be detained on the grounds under Article 102 § 1 (1), (3) and (4) of the Code of Criminal Procedure, namely the danger of the suspects absconding, the danger of the suspects reoffending and the gravity of the charges. The relevant part of the decision, referring to the grounds for detention, reads: “In view of the manner in which the criminal offence was committed, the type and quantity of the illegal substances in which the suspects were trafficking, the large number of illegal transactions and the persistence and determination involved in committing the criminal offences, as well as the fact that the suspects are mostly unemployed with no means of support and that the suspects ... and Perica Oreb have previously been convicted of the same criminal offence or of similar criminal offences, there exists a justified fear that if released they might repeat a criminal offence of the same kind ...” 30. A report drawn up on 4 August 2008 by the Split Police Department expressly notes that the applicant had voluntarily come to that Department that day and that he had then been taken to Split Prison. 31. In his appeal of 7 August 2008 the applicant argued that the written charges against him alleged that he had had contact with only one of the other suspects, which showed that he could not have been a participant in any organised criminal activity since he did not know about the involvement of the other suspects and they were not even known to him. He supported these assertions with the argument that no illegal substances, money or equipment necessary for trafficking in the said substances on a large scale, such as packaging or scales, had been found on him, and that this showed that he personally had not been involved in such trafficking. 32. He also claimed that he had never been convicted by a final judgment of trafficking in illegal substances, but only of the criminal offence of using illegal substances and that he was not a drug addict. Lastly, he argued that the possibility of ordering an alternative measure to detention had not been considered. 33. On 8 August 2008 the investigating judge asked for a copy of the applicant’s criminal record. The report of 12 August 2008 submitted by the Ministry of Justice indicated that the applicant had not been convicted of any criminal offence. 34. On 22 August 2008 a three-judge panel of the Split County Court examined the appeals lodged by the defendants. It accepted that the ground under Article 102 § 1(1) of the Code of Criminal Procedure no longer persisted. In other respects it dismissed the applicant’s appeal on the grounds that: the documents in the case file showed that the applicant had previously been convicted of similar criminal offences (without any further explanations in that respect), and that the persistent criminal activity over a long period with which the suspects were charged taken together with their economic situation justified the fear that they might repeat the same offences. The relevant part of the decision reads: “In view of the level of criminal activity with which the defendants are charged, namely, that they have been engaged in trafficking in illegal drugs over a long period of time, and in view of the resolve and persistence shown in committing the offence, the fact that the defendants ... Perica Oreb ... have already been convicted of criminal offences, and almost all defendants have no means of subsistence, all these things indicate that there is a danger of the defendants reoffending ... The manner in which the criminal offences were committed, with the defendants organising themselves into a group, and the quantity of the illegal substances whose sale might put at risk the health of a large number of persons, amount to grave circumstances ...” 35. On 3 September 2008 the investigating judge extended the applicant’s detention for a further month on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure (the danger of reoffending and the gravity of the charges). The relevant part of the decision reads: “In view of the level of criminal activity with which the defendants have been charged, namely, that they have been engaged in trafficking in illegal drugs over a long period of time, and in view of the resolve to commit criminal offences and the fact that the defendants have previously been convicted of similar criminal offences, there is a danger of the defendants reoffending ... The offence was committed under grave circumstances as shown by the manner in which it was committed, the fact that the defendants organised a group and the quantity of the illegal substances in circulation, which, through the sale on the illegal market, could put at risk the health of a number of persons.” 36. In his appeal of 8 September 2008 the applicant argued that he had not previously been convicted of the same offence and that the ordering of his detention under Article 102 § 1 (3) of the Code of Criminal Procedure (danger of reoffending) violated the principle of the presumption of innocence. He also reiterated that the written charges against him alleged that he had had contact with only one of the other suspects, which showed that he could not have been a participant in any organised criminal activity since he did not know about the involvement of the other suspects and did not even know who they were. He argued, in support of those assertions, that no illegal substances, money or materials necessary for trafficking in the said substances on a large scale, such as packaging or scales, had been found on him and that this showed that he had not personally been involved in such trafficking. 37. On 11 September 2008 a three-judge panel of the Split County Court dismissed the applicant’s appeal. The relevant part of the decision reads: “... the defendants have been charged with the criminal offence of trafficking in illegal drugs between 10 January and 30 July 2008 ... The documents in the case file show that the defendant ... Perica Oreb has already been convicted of similar criminal offences; the defendant Perica Oreb ... is unemployed, and all three defendants have no assets. In view of the high level of criminal activity with which they have been charged, namely that they engaged in trafficking in illegal drugs during the above-mentioned period and showed resolve and persistence in committing the offence, as well as their economic situation – all these circumstances taken together indicate a danger of the defendants reoffending ... Furthermore, the offence was committed under grave circumstances as shown by the manner in which it was committed, the fact that the defendants organised a group and the quantity of the illegal substances, which through their sale on the illegal market could put at risk the health of a number of persons ...” 38. On 3 October 2008 the investigating judge lifted the applicant’s detention on the ground that the psychiatric report indicated that he had been a drug user and that he had been buying drugs for his own use and not in order to sell it to others. His immediate release was ordered as well. The State Attorney lodged an appeal on 7 October 2008. 39. On 10 October 2008 a three-judge panel of the Split County Court allowed the appeal and extended the applicant’s detention again on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure. The reasoning was the same as that in the decision of 11 September 2008. It was stated, inter alia, that the documents in the case file showed that the applicant had previously been convicted of similar criminal offences (without any further explanations in that respect). The applicant was re-detained on 28 October 2008. 40. On 21 November 2008 the investigating judge extended the detention in respect of all the defendants for a further month again on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure. This decision was quashed by a three-judge panel of the Split County Court on 11 December 2008 on the ground that the period of further detention had to be specified for each defendant. 41. On 10 December 2008, in another set of criminal proceedings, the Dubrovnik County Court convicted the applicant of trafficking in heroin and sentenced him to two years’ imprisonment. 42. On 15 December 2008 the investigating judge extended the applicant’s detention until 28 December 2008, again on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure. The reasoning relied on the allegations that the accused had been charged with trafficking in substantial quantities of heroin as their primary activity. On 16 December 2008 the applicant lodged an appeal. He argued that no drugs, money or tools typical for the sale of drugs had been found on him and that he had never been convicted of any drug-related crimes. He again argued that the possibility of ordering an alternative measure to detention had not been considered. 43. On 23 December 2008 the investigating judge issued a fresh decision extending the applicant’s detention until 28 December, again on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure. He relied on the allegations that the accused had been charged with trafficking in substantial quantities of heroin as their primary activity, on the gravity of the charges and the fact that the defendants had no means of support, without giving further details in this respect. 44. On 24 December 2008 a three-judge panel of the Split County Court declared the applicant’s appeal of 16 December 2008 inadmissible because a fresh decision on detention had been adopted in the meantime. 45. On 30 December 2008 the applicant lodged an appeal against the investigating judge’s decision of 23 December 2008. He reiterated the arguments from his previous appeal of 16 December 2008 and added that before his arrest he had been employed at a hotel in Cavtat. 46. On 14 January 2009 a three-judge panel of the Split County Court dismissed the appeal and reiterated the reasoning from its decision of 11 September 2008. It also stressed that the applicant had been convicted before and that he had no assets. 47. On 21 January 2009 the applicant lodged a constitutional complaint against the above decision, arguing that the following rights had been violated: his right to personal liberty; right to a fair trial; his right to equality before the law because the grounds for detention had been interpreted in an unusual fashion; and his right to an effective remedy because the examination of his appeal had been inadequate. 48. On 23 January 2009 the Split County Court extended the applicant’s detention, again on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure. In addition to the reasoning in the previous decisions, it added that the applicant was a drug addict and stated, inter alia, that he had already been convicted of similar criminal offences, without any further explanations in that respect. 49. On 27 January 2009 the applicant lodged an appeal. In addition to the arguments put forward in his appeal of 16 and 30 December 2008 he added that his parents had a regular income and that therefore it could not be said that he had no means of subsistence. 50. On 16 February 2009 the Supreme Court dismissed the appeal of 27 January 2009, holding that the alleged manner in which the criminal offence had been committed amounted to particularly grave circumstances which justified detention on the ground under Article 102 § 1 (4) of the Code of Criminal Procedure. As regards the ground under Article 102 § 1 (3) – danger of reoffending – it was deemed justified since the applicant was a drug addict and two other sets of criminal proceedings concerning drug-related offences were pending against him, one before the Čakovec County Court and the other before the Dubrovnik County Court. 51. On 19 February 2009 the Constitutional Court declared the applicant’s constitutional complaint of 22 January 2009 against the decision of 14 January 2009 inadmissible on the ground that a fresh decision on detention had been adopted in the meantime. 52. On 16 April 2009 the Split County Court extended the applicant’s detention, again on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure and with the same reasoning as before, stating, inter alia, that the applicant had already been convicted of similar offences, without any further explanations in that respect. 53. On 8 May 2009 the Supreme Court quashed the decision of 16 April 2009 on the ground that the three-judge panel which adopted it had no such power and that it was the investigating judge who should have decided whether to extend the detention. 54. On 15 May 2009 the investigating judge extended the applicant’s detention, again on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure. The reasoning relied on the allegations that the accused had been charged with trafficking in substantial quantities of heroin as their primary activity and had no other income. In his appeal lodged the same day the applicant reiterated the arguments from his appeal of 30 December 2008. As regards his previous conviction, he argued that the Dubrovnik County Court’s judgment of 10 December 2008 had not yet become final. 55. On 28 May 2009 the Supreme Court dismissed the appeal, endorsing the reasons put forward by the investigating judge. 56. On 10 June 2009 the investigating judge again extended the applicant’s detention, again on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure and with the same reasoning as in the decision of 15 May 2009. 57. On 16 June 2009 the applicant lodged an appeal. He reiterated his previous arguments. 58. On 18 June 2009 a three-judge panel of the Split County Court extended the applicant’s detention, again on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure, reiterating the same reasoning as in the previous decisions concerning the applicant’s detention. It stated, inter alia, that the documents in the case file showed that the applicant had already been convicted of similar offences, without any further explanations in that respect. 59. On 24 June 2009 the applicant lodged an appeal reiterating his previous arguments. 60. On 30 June 2009 a three-judge panel of the Split County Court declared the applicant’s appeal of 16 June 2009 inadmissible because a fresh decision on his detention had been adopted in the meantime. 61. On 13 July 2009 the Supreme Court dismissed the applicant’s appeal of 24 June 2009. As to the applicant’s previous convictions, it stated: “All appellants, save for ... Perica Oreb ... had already been convicted of similar criminal offences ... ... criminal proceedings are currently pending against the accused Perica Oreb before the Dubrovnik County Court in which he has been convicted, by a judgment that has not yet become final, of a criminal offence under Article 173 § 2 of the Criminal Code and sentenced to two years’ imprisonment. Therefore, the fact that the accused had not been finally convicted could not alter conclusion that there is a danger of him reoffending since other criminal proceedings are pending against the accused, which is also relevant in assessing the conformity of their lifestyles with the laws. ...” 62. On 14 September 2009 a three-judge panel of the Split County Court again extended the applicant’s detention on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure, reiterating the same reasoning as in the previous decisions concerning the applicant’s detention and stating, inter alia, that the documents in the case file showed that the applicant had already been convicted of similar offences, without any further explanations in that respect. 63. On 17 September 2009 the applicant lodged an appeal reiterating his previous arguments. 64. On 28 September 2009 the Supreme Court dismissed the appeal. As to the applicant’s previous convictions, it stated: “All appellants, save for ... Perica Oreb ... had already been convicted of similar criminal offences ... ... criminal proceedings are currently pending against the accused Perica Oreb before the Dubrovnik County Court in which he has been convicted, by a judgment that has not yet become final, of a criminal offence under Article 173 § 2 of the Criminal Code and sentenced to two years’ imprisonment. The above circumstances taken together justify the fear that they would continue committing the same or similar offences and that therefore [the decision to extend] their detention on the ground under Article 102 § 1 (3) of the Code of Criminal Procedure is correct. ...” 65. The applicant lodged a constitutional complaint, challenging the grounds for and the duration of his detention. 66. On 26 November 2009 a three-judge panel of the Split County Court extended the applicant’s detention, again on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure, reiterating the same reasoning as in the previous decisions concerning the applicant’s detention and stating that the applicant’s criminal record showed that he had already been convicted of similar offences. 67. On 1 December 2009 the applicant lodged an appeal reiterating his previous arguments. 68. On 15 December 2009 the Constitutional Court declared the applicant’s constitutional complaint against the decision of 28 September 2009 inadmissible on the ground that it was no longer in effect since a fresh decision on the applicant’s detention had meanwhile been adopted. 69. On 16 December 2009 the Supreme Court dismissed the appeal. As to the applicant’s previous convictions, it stated: “All appellants, save for ... Perica Oreb ... had already been convicted of similar criminal offences ... Even though there is no previous conviction in the criminal record of Perica Oreb, the documents in the case file show that ... criminal proceedings are currently pending against him before the Dubrovnik County Court in which he has been convicted, by a judgment that has not yet become final, of a criminal offence under Article 173 § 2 of the Criminal Code and sentenced to two years’ imprisonment. These circumstances, contrary to the submissions of all the appellants, are relevant in assessing the conformity of their lifestyles with the laws. The above circumstances together with the fact that all of the appellants, save for D.R., are heroin addicts and the accused ... Perica Oreb is unemployed ... justify the fear that, if at large, they would continue to commit the same or similar criminal offences and therefore [the decision to extend] their detention on the ground under Article 102 § 1 (3) of the Code of Criminal Procedure is correct. ...” 70. The applicant lodged a constitutional complaint, again challenging the grounds for and the duration of his detention. 71. On 12 February 2010 a three-judge panel of the Split County Court extended the applicant’s detention, again on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure. The reasoning relied on the indictment, which charged the accused with conspiracy to supply a large quantity of heroin for a longer period of time, the danger of such criminal activity, the fact that they were heroin addicts and had no other income. 72. On 18 February 2010 the applicant lodged an appeal reiterating his previous arguments. 73. On 25 February 2010 the Constitutional Court declared the applicant’s constitutional complaint against the decision of 16 December 2009 inadmissible on the ground that it was no longer in effect since a fresh decision on the applicant’s detention had meanwhile been adopted. 74. On 12 March 2010 the Supreme Court dismissed the appeal, endorsing the reasoning of the impugned decision. As regards the applicant, it specifically stated that: “The accused Perica Oreb is, according to his own statement, unemployed, with no assets and the psychiatric report shows that he is a heroin addict. Furthermore, he has been convicted of the offence under Article 173 § 2 of the Criminal Code by a judgment of the Dubrovnik County Court which has not yet become final” 75. On 12 May 2010 a three-judge panel of the Split County Court extended the applicant’s detention, again on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure, reiterating the same reasoning as in its decision of 12 February 2010. 76. On 14 May 2010 the applicant lodged an appeal reiterating his previous arguments. 77. On 23 June 2010 the Supreme Court dismissed the appeal, endorsing the reasoning of the impugned decision. As regards the applicant, it specifically gave the same reasons as in its decision of 12 March 2010. 78. On 24 August 2010 a three-judge panel of the Split County Court extended the applicant’s detention, again on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure, reiterating the same reasoning as in the decision of 12 May 2010. 79. On 30 August 2010 the applicant lodged an appeal reiterating his previous arguments. As indicated above (paragraph 27) the applicant was convicted by the County Court and released on 20 September 2010. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Relevant law 80. The relevant provisions of the Code of Criminal Procedure (Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002 and 62/2003) provide: Preventive Measures Article 90 “(1) Where the conditions for ordering detention under Article 102 of this Code have been fulfilled, and where the same purpose may be achieved by other preventive measures under this Article, the court shall order that one or more preventive measures are to be applied ... (2) Preventive measures are: 1) prohibition on leaving one’s place of residence; 2) prohibition on being in a certain place or area; 3) obligation on the defendant to report periodically to a certain person or a State body; 4) prohibition on access to a certain person or on establishing or maintaining contact with a certain person; 5) prohibition on undertaking a certain business activity; 6) temporary seizure of a passport or other document necessary for crossing the State border; 7) temporary seizure of a driving licence. ...” 8. General Provisions on Detention Article 101 (1) Detention may be imposed only if the same purpose cannot be achieved by another [preventive] measure. (2) Detention shall be lifted and the detainee released as soon as the grounds for detention cease to exist. (3) When deciding on detention, in particular its duration, the court shall take into consideration the proportionality between the gravity of the offence, the sentence which ... may be expected to be imposed, and the need to order and determine the duration of detention. (4) The judicial authorities conducting the criminal proceedings shall proceed with particular urgency when the defendant is in detention and shall review of their own motion whether the grounds and legal conditions for detention have ceased to exist, in which case the detention measure shall immediately be lifted. 9. Grounds for Ordering Detention Article 102 (1) Where a reasonable suspicion exists that a person has committed an offence, that person may be placed in detention: ... 3. special circumstances justify the suspicion that the person concerned might reoffend ... 4. if the charges involved relate to murder, robbery, rape, terrorism, kidnapping, drug abuse, extortion or any other offence carrying a sentence of at least twelve years’ imprisonment, when detention is justified by the modus operandi or other especially grave circumstances of the offence. 81. The relevant provisions of the Enforcement of Prison Sentences Act (Zakon o izvršavanju kazne zatvora, Official Gazette nos. 128/1999 and 190/2003) read as follows: Basic Provisions Section 1 “(1) This Act regulates the execution of prison sentences. ...” The Use of Terms Section 8 “The terms used in this Act have the following meaning: 1. A detainee is any person held in detention pursuant to a pre-trial detention order. ... 3. An inmate is any person sentenced to a prison sentence for a criminal offence, serving the prison sentence in a prison or in a jail. ...” JUDICIAL PROTECTION AGAINST ACTS AND DECISIONS OF THE PRISON ADMINISTRATION Section 17 “(1) An inmate may lodge a request for judicial protection against any acts or decisions unlawfully denying him, or limiting him in, any of the rights guaranteed by this Act. (2) Requests for judicial protection shall be decided by the judge responsible for the execution of sentences.” Criteria for sending a convict to serve a prison sentence Article 49 “ ... (4) If a convict’s pre-trial detention has been ordered or extended in another set of criminal proceedings, the judge responsible for the execution of the prison sentence shall send him to serve the prison sentence which will start after the pre-trial detention has been lifted. ...” B. Relevant practice 82. In its decision of 17 March 2009, nos. U-III/4182/2008 and U-III/678/2009, in the case of Robert Peša, concerning, inter alia, the conditions of his pre-trial detention in Zagreb Prison, the Constitutional Court found a violation of Mr Peša’s right to human treatment and to respect for his dignity and also ordered the Government to adjust the facilities at Zagreb Prison to the needs of detainees within a reasonable time, not exceeding five years. It further held that a complaint about prison conditions to a judge responsible for the execution of sentences under the Enforcement of Prison Sentences Act was also to be used by persons in pre-trial detention. The relevant part of this decision reads: “20. ... the Constitutional Court established the following obligatory legal opinion: - the courts are obliged to apply the same procedures concerning requests for protection of the rights of convicted prisoners to the judges responsible for the execution of sentences with respect to such requests lodged by persons placed in pre-trial detention ... ... 22. For the reasons set out in points ... 17 [of this decision] the Constitutional Court finds that the general conditions of the applicant’s detention amount to degrading treatment and thus infringe his constitutional rights guaranteed under Articles 23 and 25 § 1 of the Constitution as well as his rights under Article 3 of the Convention. The Constitutional Court has not addressed the possibility of granting the applicant just satisfaction for the above infringements of his constitutional and Convention rights because in the Croatian legal system there exists another, effective legal remedy in that respect (see the Constitutional Court’s decision no. U-III-1437/07 of 23 April 2008.” 83. In decision no. U-III-1437/2007 of 23 April 2008 the Constitutional Court found that the conditions of detention of a prisoner, P.M., in Lepoglava State Prison amounted to inhuman treatment. It also addressed the question of P.M.’s claim for just satisfaction. The relevant parts of the decision read: “In particular, the Constitutional Court finds unacceptable the [lower] courts’ opinion that in this case a claim for non-pecuniary damage cannot be awarded under section 200 of the Civil Obligations Act on the ground that such a compensation claim is unfounded in law. ... Section 1046 of the Civil Obligations Act defines non-pecuniary damage as infringement of the right to respect for one’s personal integrity. In other words, every infringement of one’s right to personal integrity amounts to non-pecuniary damage. Section 19(2) of the Civil Obligations Act defines the right to personal integrity for the purposes of that Act as: the right to life, physical and mental health, reputation, honour, respect for one’s dignity and name, privacy of personal and family life, freedom and other aspects. ... it is to be concluded that in this case there has been a violation of human, constitutional and personal values because the applicant was in prison conditions which were incompatible with the standards prescribed by the Enforcement of Prison Sentences Act and also with the legal standards under Article 25 § 1 of the Constitution. For that reason the courts are obliged to award compensation for the infringement of the applicant’s dignity. ...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 84. In his submissions of 31 March 2010 the applicant complained under Article 3 of the Convention that the conditions of his detention had been inhuman. 85. The Court notes that in its decision in the case of Peša of 17 March 2009, no. U-III/4182/2008, the Constitutional Court established that the remedies under the Enforcement of Prison Sentences Act, namely a complaint to a judge responsible for the execution of sentences applied equally to convicted prisoners and persons in pre-trial detention (see paragraph 82 above). 86. Furthermore, in the same decision the Constitutional Court itself found a violation of the right of a detained person not to be exposed to inhuman and degrading treatment as regards prison conditions. Owing to the conditions the Constitutional Court found to be in violation of Article 3 of the Convention, it ordered the immediate release of the person concerned, who then had the right to seek compensation from the State. 87. In its judgment in the case of Peša v. Croatia (no. 40523/08, 8 April 2010) the Court accepted that the findings of the Constitutional Court together with a possibility of seeking compensation from the State stripped the applicant in that case of his victim status in connection with his complaint about the conditions in pre-trial detention under Article 3 of the Convention. 88. The Court thus finds that, as regards complaints about the conditions of pre-trial detention, individual measures are available under the national law and that therefore the available remedies have to be exhausted. 89. The Court notes that the applicant failed to submit his complaint about the prison conditions to a judge responsible for the execution of sentences or to the prison administration and in the case of the unfavourable outcome of these complaints to use further available remedies, including a constitutional complaint in this respect (see Peša, cited above, §§ 78-80). He has thus, contrary to the principle of subsidiarity, failed to afford the national authorities a possibility to remedy the situation he is now complaining of to the Court. 90. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 91. The applicant complained that his right to trial within a reasonable time or release pending trial had not been respected and that the reasons relied on by the national authorities for ordering and extending his detention could not be regarded as relevant and sufficient. He relied on Article 5 § 3 of the Convention, the relevant part of which provides: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” A. Admissibility 92. 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 93. The applicant, reiterating the arguments from his appeals lodged before the national courts, argued that the grounds for his detention were not relevant and sufficient, that his pre-trial detention exceeded a reasonable time and that the national courts had not conducted the criminal proceedings against him with the required efficiency, in view of the fact that he had been placed in pre-trial detention. 94. The Government, reiterating the reasons put forward by the national courts, argued that the grounds for the applicants’ detention had been relevant and sufficient throughout his detention. In their view, the fact that the applicant was found to be a long-term drug addict and charged with being a member of an organised group engaged in trafficking in drugs justified the national court’s belief that he posed a danger of re-offending. His detention was also justified by the alleged manner in which the criminal offence at issue had been committed, that is to say, over a long period of time by an organised group of persons trafficking in heroin and cocaine. 95. The national courts had regularly examined whether the grounds for the applicant’s detention had still persisted and had shown due diligence in the conduct of the proceedings. 2. The Court’s assessment (a) Period to be taken into consideration 96. The Court notes that there is no dispute between the parties that the period to be taken into consideration began on 4 August 2008, when the applicant was taken to Split Prison. There is also no dispute that the applicant was released on 3 October 2008 and that he was again detained between 28 October 2008 and 20 September 2010, when he was released. 97. Given that the applicant’s pre-trial detention consisted of two separate periods, the Court firstly refers to its judgment in the Idalov v. Russia case, where it found, as regards the six-month rule, that an applicant is obliged to bring any complaint which he or she may have concerning pre-trial detention within six months of the date of the actual release. It follows that periods of pre-trial detention which end more than six months before an applicant lodges a complaint before the Court cannot be examined, having regard to the provisions of Article 35 § 1 of the Convention (see Idalov v. Russia [GC], no. 5826/03, § 130, 22 May 2012). In the present case the applicant did comply with the six-month rule in respect of both periods of detention as he brought his application before the Court on 26 March 2009. 98. According to the Court’s well-established case-law, in determining the length of detention under Article 5 § 3 of the Convention, the period to be taken into consideration begins on the day the accused was taken into custody and ends on the day when he was released (see, for example, Fešar v. the Czech Republic, no. 76576/01, § 44, 13 November 2008) or when the charge was determined, even if only by a court of first instance (see, Belevitskiy v. Russia, no. 72967/01, § 99, 1 March 2007; and Sizov v. Russia, no. 33123/08, § 44, 15 March 2011). As regards the latter point, in view of the essential link between Article 5 § 3 of the Convention and paragraph 1 (c) of that Article, a person convicted at first instance cannot be regarded as being detained “for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence”, but is in the position provided for by Article 5 § 1 (a), which authorises deprivation of liberty “after conviction by a competent court” (see Labita v. Italy [GC], no. 26772/95, §§ 145-147, ECHR 2000‑IV; and Kudła v. Poland [GC], no. 30210/96, § 104, ECHR 2000‑XI). 99. Having in mind the above considerations, the Court must first address the possible effect of the applicant’s conviction in another parallel set of criminal proceedings (see paragraph 41 above) on the period to be taken into consideration in respect of his complaint under Article 5 § 3 of the Convention. 100. In this connection the Court firstly notes that throughout his detention the applicant was remanded in custody in connection with the criminal proceedings which commenced on 1 August 2008 (see paragraph 5 above) and on grounds specific to those proceedings. Secondly, the Court also notes that in Croatia there exist two types of detention, differing in terms of premises and regime. The first type is pre-trial detention. Detainees are placed in detention centres rather than in ordinary prisons and are subject to a specific regime as regards the organisation of their time, the right to visits, the right to work in the prison, and so on. The second type is in ordinary prisons, where convicted prisoners are accommodated. Once sentenced to a prison term a convict is not transferred to a prison automatically, but only on the basis of a specific order, and on his or her admission to a prison an individual prison regime and programme is set up (see Dervishi v. Croatia, no. 67341/10, § 123, 25 September 2012). 101. However, if pre-trial detention against the convicted person has been ordered or extended in another set of criminal proceedings, that person cannot start to serve his prison term while in pre-trial detention. The Court has already addressed this issue in the above mentioned Dervishi case where the applicant, who was sentenced to a prison term on charges of extortion while being in pre-trial detention in connection with the criminal proceedings on charges of trafficking in heroin, asked to start serving his prison sentence concerning the conviction of extortion. Even though that request was allowed, the applicant was nevertheless not allowed to start serving his prison term as long as he was detained in connection with the criminal proceedings against him on charges of trafficking in heroin (see Dervishi, cited above, § 124). 102. Against the above background, the Court considers that, in the present case, there was no causal connection between the applicant’s conviction in another set of criminal proceedings and the deprivation of liberty at issue (see M. v. Germany, no. 19359/04, § 88, ECHR 2009 and Dervishi, cited above, § 125) and that his pre-trial detention in the proceedings at issue never coincided with serving any prison sentence following his conviction in separate criminal proceedings (see, by contrast, Piotr Baranowski v. Poland, no. 39742/05, §§ 14, 45, 2 October 2007). Therefore, in these circumstances the Court considers that the applicant’s conviction in another set of criminal proceedings has no influence on the overall period of his pre-trial detention which is to be examined in the present case (see Dervishi, cited above, § 125). 103. As to the two periods of the applicant’s pre-trial detention, namely between 4 August and 3 October 2008 and then between 28 October 2008 and 20 September 2010, the Court considers that, according to its case-law, where such periods can be examined before the Court having regard to the provisions of Article 35 § 1 of the Convention, a global assessment of the aggregate period is required (see, for example, Smirnova v. Russia, nos. 46133/99 and 48183/99, § 66, ECHR 2003‑IX (extracts), and, mutatis mutandis, Idalov, cited above, § 130; and Dervishi, cited above, § 126). 104. It follows that the period of the applicant’s pre-trial detention to be taken into consideration began on 4 August 2008, the date of the applicant’s placement in Split Prison, and ended on 20 September 2010, when he was released, less the period between 3 and 28 October 2008, during which the applicant was released from detention, which in total amounts to two years and twenty-two days. (b) General principles 105. Under the Court’s case-law, the issue of whether a period of detention is reasonable cannot be assessed in abstracto. Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention can be justified only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty (see, among other authorities, W. v. Switzerland, 26 January 1993, Series A no. 254‑A, and Kudła, cited above). 106. The presumption is in favour of release. As the Court has consistently held, the second limb of Article 5 § 3 does not give judicial authorities a choice between either bringing an accused to trial within a reasonable time or granting him provisional release pending trial. Until his conviction, the accused must be presumed innocent, and the purpose of the provision under consideration is essentially to require him to be released provisionally once his continuing detention ceases to be reasonable (see Vlasov v. Russia, no. 78146/01, § 104, 12 June 2008, with further references). 107. The Court further observes that it falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable length of time. To this end they must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty, and set them out in their decisions dismissing the applications for release. It is essentially on the basis of the reasons given in these decisions and of the true facts mentioned by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention (see Labita, cited above, § 152). 108. The arguments for and against release must not be “general and abstract” (see Smirnova v. Russia, nos. 46133/99 and 48183/99, § 63, ECHR 2003-IX). Where the law provides for a presumption in respect of factors relevant to the grounds for continued detention, the existence of the specific facts outweighing the rule of respect for individual liberty must be convincingly demonstrated (see Ilijkov v. Bulgaria, no. 33977/96, § 84 in fine, 26 July 2001). 109. The persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases the Court must establish whether the other grounds given by the judicial authorities continue to justify the deprivation of liberty. Where such grounds are “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Labita, cited above, § 153). (c) Application of the general principles to the present case 110. The Court notes that the applicant was held in custody for more than two years. A pre-trial detention of this length is a matter of concern for the Court. It observes that the domestic courts extended the applicant’s detention a number of times. In their decisions they consistently relied on the gravity of the charges as the main factor and on the applicant’s potential to reoffend. 111. As regards the courts’ reliance on the gravity of the charges as the decisive element, the Court has repeatedly held that the gravity of the charges cannot by itself serve to justify long periods of detention (see Panchenko v. Russia, no. 45100/98, § 102, 8 February 2005; Goral v. Poland, no. 38654/97, § 68, 30 October 2003; and Ilijkov, cited above, § 81). 112. The other grounds for the applicant’s continued detention were the domestic courts’ findings that the applicant could reoffend. The Court reiterates that it is incumbent on the domestic authorities to establish the existence of concrete facts relevant to the grounds for continued detention. Shifting the burden of proof to the detained person in such matters is tantamount to overturning the rule of Article 5 of the Convention, a provision which makes detention an exceptional departure from the right to liberty and one that is only permissible in exhaustively enumerated and strictly defined cases (see Rokhlina v. Russia, no. 54071/00, § 67, 7 April 2005). It remains to be ascertained whether the domestic authorities established and convincingly demonstrated the existence of specific facts in support of their conclusions. (i) The danger of reoffending 113. In a number of the detention orders the domestic courts cited the likelihood that the applicant would reoffend as an additional ground justifying his continued detention. In this connection, the Court observes that the judicial authorities in assessing whether there was a risk that the applicant would reoffend indicated that he had been previously convicted of similar offences. However, they did not refer to any specific final judgment finding the applicant guilty, but in some of the decisions extending his detention relied on the fact that parallel criminal proceedings were pending before some other courts. However, as there was no formal finding of a previous crime in a final conviction, the principle of the presumption of innocence demands that merely pending proceedings could not be referred to as a proof of one’s propensity to commit criminal offences. In this connection the Court also notes that the applicant had no previous criminal record. (ii) Seriousness of the alleged offences 114. The Court has repeatedly held that although the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or reoffending, the need to continue the deprivation of liberty cannot be assessed from a purely abstract point of view, taking into consideration only the gravity of the offence. Nor can continuation of the detention be used to anticipate a custodial sentence (see Belevitskiy v. Russia, no. 72967/01, § 101, 1 March 2007; Panchenko, cited above, § 102; Khudoyorov v. Russia, no. 6847/02, § 180, ECHR 2005‑X; Ilijkov, § 81; and Peša, § 104, cited above). 115. In the present case, throughout the applicant’s pre-trial detention, the domestic courts extended the applicant’s detention also on the ground of the particularly grave circumstances under which he had allegedly committed the offences at issue. In doing so, the national courts used the same stereotyped phrases and in some cases even identical wording. In this respect the Court reiterates that it has found a violation of Article 5 § 3 of the Convention in many other cases in which the domestic authorities were using stereotyped formulae without addressing specific facts of the case (see Tsarenko v. Russia, no. 5235/09, § 70, 3 March 2011). 116. At this juncture the Court reiterates that a court decision extending detention on such grounds requires a more solid basis to show not only that there was genuinely “a reasonable suspicion”, but also that there were other serious public-interest considerations which, notwithstanding the presumption of innocence, outweighed the right to liberty (see, among other authorities, I.A. v. France, 23 September 1998, § 102, Reports 1998-VII; and Šuput v. Croatia, no. 49905/07, § 102, 31 May 2011). 117. The Court has already held on a number of occasions that, by reason of their particular gravity and public reaction to them, certain offences may give rise to a social disturbance capable of justifying pre-trial detention, at least for a time. In exceptional circumstances this factor may therefore be taken into account for the purposes of the Convention, in any event in so far as domestic law recognises the notion of disturbance to public order caused by an offence. However, this ground can be regarded as relevant and sufficient only provided that it is based on facts capable of showing that the accused’s release would actually disturb public order. In addition detention will continue to be legitimate only if public order remains actually threatened; its continuation cannot be used to anticipate a custodial sentence (see Kemmache v. France, 27 November 1991, § 52, Series A no. 218, and Tomasi v. France, 27 August 1992, § 91, Series A no. 241‑A; and Aleksandr Makarov v. Russia, no. 15217/07, § 136, 12 March 2009). 118. In the present case these conditions were not satisfied. The Court notes that Croatian law does not recognise the notion of prejudice to public order caused by an offence as a ground for detention (see Peša v. Croatia, cited above, § 103). Furthermore, the national courts did not explain why continued detention of the applicant was necessary in order to prevent public disquiet and did not examine whether the applicant presented a danger for public safety. (iii) Alternative measures of restraint 119. The Court further emphasises that when deciding whether a person should be released or detained the authorities have an obligation under Article 5 § 3 to consider alternative measures of ensuring his or her appearance at the trial (see Sulaoja v. Estonia, no. 55939/00, § 64, 15 February 2005, and Jabłoński v. Poland, no. 33492/96, § 83, 21 December 2000). During the entire period under consideration the authorities did not consider the possibility of ensuring the applicant’s attendance by the use of other “preventive measures” expressly provided for by Croatian law to secure the proper conduct of criminal proceedings. (iv) Conclusion 120. In sum, the Court finds that the domestic authorities’ decisions were not based on an analysis of all the pertinent facts. They took no notice of the arguments in favour of the applicant’s release pending trial. 121. Having regard to the above, the Court considers that by failing to refer to concrete relevant facts or consider alternative “preventive measures”, the authorities extended the applicant’s detention on grounds which cannot be regarded as “sufficient”. They thus failed to justify the applicant’s continued deprivation of liberty for a period of over two years. It is hence not necessary to examine whether the proceedings against the applicant were conducted with due diligence during that period as such a lengthy period cannot in the circumstances be regarded as “reasonable” within the meaning of Article 5 § 3 (see Pekov v. Bulgaria, no. 50358/99, § 85, 30 March 2006). 122. There has therefore been a violation of Article 5 § 3 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 123. The applicant also complained that the proceedings concerning his appeals against the detention orders issued against him had not met the requirements of Article 5 § 4 of the Convention, which reads as follows: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A. Admissibility 124. 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 parties’ arguments 125. The applicant maintained that the Constitutional Court had declared three of his constitutional complaints inadmissible solely on the ground that a fresh decision extending his detention had been adopted in the meantime. In the applicant’s view, such practice ran counter to the requirements of Article 5 § 4 of the Convention. 126. The Government maintained that in Croatia detention could be ordered and extended only by a decision of a competent court. An appeal against such a decision was always provided for which ensured examination of the decisions on detention. A detained person was also able to lodge a request for his or her release at any time. 127. As regards the case in issue, the Government submitted that each time the applicant had lodged an appeal against any of the decisions concerning his detention the appeal had been examined on the merits by an appeal court. Thus, the requirements of Article 5 § 4 of the Convention had been satisfied. 128. Furthermore, the present case was to be distinguished from the case of Peša v. Croatia because the applicant’s constitutional complaint of 21 January 2009 had been registered at the Constitutional Court on 22 January 2009, only a day before the Split County Court had again extended the applicant’s detention. Therefore, the Constitutional Court could not have examined a complaint against a decision which was no longer in effect. 2. The Court’s assessment (a) General principles 129. The Court reiterates that the purpose of Article 5 § 4 is to assure to persons who are arrested and detained the right to judicial supervision of the lawfulness of the measure to which they are thereby subjected (see, mutatis mutandis, De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 76, Series A no. 12, and Ismoilov and Others v. Russia, no. 2947/06, § 145, 24 April 2008). A remedy must be made available during a person’s detention to allow that person to obtain speedy judicial review of the lawfulness of the detention, capable of leading, where appropriate, to his or her release. The existence of the remedy required by Article 5 § 4 must be sufficiently certain, not only in theory but also in practice, failing which it will lack the accessibility and effectiveness required for the purposes of that provision (see, mutatis mutandis, Stoichkov v. Bulgaria, no. 9808/02, § 66 in fine, 24 March 2005, and Vachev v. Bulgaria, no. 42987/98, § 71, ECHR 2004‑VIII). The accessibility of a remedy implies, inter alia, that the circumstances voluntarily created by the authorities must be such as to afford applicants a realistic possibility of using the remedy (see, mutatis mutandis, Čonka v. Belgium, no. 51564/99, §§ 46 and 55, ECHR 2002‑I). (b) Application of these principles in the present case 130. The Court firstly notes that under the relevant domestic law, detention during an investigation must be reviewed by the investigating judge after one month and then again after two and three months (Article 107 of the Code of Criminal Procedure). After the indictment has been filed, detention must be judicially reviewed every two months. The Court notes that in the circumstances of the present case the lawfulness of the applicant’s detention was considered by the domestic courts on many occasions. 131. The applicant was able to lodge requests for his release. He was also able to lodge an appeal against each decision of the investigating judge ordering and extending his detention, as well as an appeal with the Supreme Court against each decision of the Split County Court extending his detention. The Court finds that the national courts periodically and automatically reviewed the applicant’s detention and gave reasons for its extension. Each time the applicant was also able to lodge a constitutional complaint. However, the Court notes that the practice of the Constitutional Court is to declare inadmissible each constitutional complaint where, before it has given its decision, a fresh decision extending detention has been adopted in the meantime. Thus, the applicant’s constitutional complaint of 22 January 2009 against the Supreme Court’s decision of 14 January 2009 was declared inadmissible by the Constitutional Court on such grounds on 19 February 2009 (see paragraph 51 above). The same is true for the applicant’s constitutional complaint against the Supreme Court’s decision of 28 September 2009, declared inadmissible on 15 December 2009 (see paragraph 68 above); and the constitutional complaint against the Supreme Court’s decision of 16 December 2009, declared inadmissible on 25 February 2010 (see paragraph 73 above). The Court therefore has to address the question of the compliance of the Constitutional Court’s decisions with the requirements of Article 5 § 4 of the Convention. 132. In this connection the Court reiterates that, according to its case-law, Article 5 § 4 enshrines, as does Article 6 § 1, the right of access to court, which can only be subject to reasonable limitations that do not impair its very essence (see Shishkov v. Bulgaria, no. 38822/97, §§ 82-90, ECHR 2003-I, and Bochev v. Bulgaria, no. 73481/01, § 70, 13 November 2008). 133. Furthermore, whereas Article 5 § 4 does not compel the Contracting States to set up a second level of jurisdiction for the examination of applications for release from detention, a State which institutes such a system must in principle nevertheless accord detainees the same guarantees on appeal as at first instance (see Toth v. Austria, 12 December 1991, § 84, Series A no. 224; Rutten v. the Netherlands, no. 32605/96, § 53, 24 July 2001; Lanz v. Austria, no. 24430/94, § 42, 31 January 2002; and Svipsta v. Latvia, no. 66820/01, § 129, ECHR 2006‑III). The Court considers that the same applies in a system which provides for a constitutional complaint against decisions ordering and extending detention (see Peša, cited above, § 124, 8 April 2010). 134. However, the Croatian system, although allowing for a constitutional complaint, leaves it to the Constitutional Court to await a fresh decision on extending detention and then to declare the complaint against the previous decision on detention inadmissible. Thus, although the applicant lodged a constitutional complaint against the three above-mentioned decisions of the Supreme Court, the Constitutional Court did not decide on the merits of any of these complaints but declared them all inadmissible because each time a fresh decision on the applicant’s detention had meanwhile been adopted. 135. In the Court’s opinion, the Constitutional Court’s failure to examine the applicant’s constitutional complaints on the merits made it impossible to ensure the proper and meaningful functioning of the system for the review of his detention, as provided for by the national law. By declaring the applicant’s constitutional complaints inadmissible simply because a fresh decision extending his detention had meanwhile been adopted, the Constitutional Court did not satisfy the requirement “that the circumstances voluntarily created by the authorities must be such as to afford applicants a realistic possibility of using the remedy” (see Peša, cited above, § 126, and Hađi v. Croatia, no. 42998/08, § 47, 1 July 2010). Thus, it fell short of its obligation under Article 5 § 4 of the Convention to review the lawfulness of the applicant’s detention. There has accordingly been a violation of that provision. IV. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION 136. The applicant further complained that the domestic courts had violated the presumption of innocence. He relied on Article 6 § 2 of the Convention which reads: “2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” A. Admissibility 137. 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 138. The applicant argued that the domestic courts had violated the presumption of innocence because in their decisions ordering and extending his detention they had repeatedly stated that the defendants had engaged in trafficking in illegal drugs, showing persistence and resolve in committing the criminal offence in question. Furthermore, the national courts had repeatedly stated that there was a risk of reoffending because he had already been convicted of the same offences. However, there was no final conviction against him. They had also considered the fact that two other sets of criminal proceedings were pending against him as a relevant factor in assessing the risk of his reoffending, thus implying that he was guilty of the offences that were the subject of those two sets of proceedings. 139. The Government argued that the national courts had treated the allegations held against the applicant as a reasonable suspicion and not as established facts. They further contended that the accused’s previous convictions could only be taken into account as an element for assessing a sentence and not when assessing the reasons for his or her detention. 2. The Court’s assessment 140. The Court reiterates that the presumption of innocence under Article 6 §2 will be violated if a judicial decision or, indeed, a statement by a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before his guilt has been proved according to law. It suffices, in the absence of a formal finding, that there is some reasoning suggesting that the court or the official in question regards the accused as guilty, while a premature expression by the tribunal itself of such an opinion will inevitably run foul of the said presumption (see, among other authorities, Deweer v. Belgium, 27 February 1980, § 56, Series A no. 35; Minelli v. Switzerland, 25 March 1983, §§ 27, 30 and 37, Series A no. 62; Allenet de Ribemont v. France, 10 February 1995, §§ 35-36, Series A no. 308; and Karakaş and Yeşilırmak v. Turkey, no. 43925/985, § 49, 28 June 2005; and Allen v. the United Kingdom [GC], no. 25424/09 [GC], § 93, 12 July 2013). 141. Article 6 § 2 governs criminal proceedings in their entirety, “irrespective of the outcome of the prosecution” (see Minelli v. Switzerland, cited above, § 30). However, once an accused is found guilty, in principle, it ceases to apply in respect of any allegations made within the subsequent sentencing procedure (see Engel and Others v. the Netherlands, 8 June 1976, Series A no. 22, and Matijašević v. Serbia, no. 23037/04, 19 September 2006). 142. As to the present case, the Court notes that the domestic courts justified the applicant’s pre-trial detention by, inter alia, the gravity of the offences and the manner in which they were committed. They did not, however, treat those circumstances as established facts but only as allegations. 143. In the wording of their decisions the domestic courts relied on the bill of indictment, stating that there was a justified suspicion that the applicant had committed the offences in question. Thus they solely relied on the charges brought against him. In that respect the wording of their decisions did not amount to finding the applicant guilty of the charges brought against him in violation of the presumption of innocence under Article 6 § 2 of the Convention. 144. However, as regards the repeated statements of the national courts that there was a risk that the applicant might reoffend since he had already been convicted of similar offences, the Court notes that throughout the criminal proceedings against the applicant, his pre-trial detention was extended, inter alia, on the ground that he had already been convicted of similar offences. In some of their decisions the national courts did not refer to any specific final judgment finding the applicant guilty or to any specific criminal proceedings against him. In other decisions, in assessing whether there was a risk that the applicant would reoffend, they relied on the fact that parallel criminal proceedings were pending before the Čakovec County Court and the Dubrovnik County Court and subsequently on his conviction by the latter which had not become final. From the context of the decisions at issue, it could be inferred that the national courts, even when not mentioning any other criminal proceedings, actually had in mind the two parallel sets of criminal proceedings, namely, those before the Čakovec County Court and the Dubrovnik County Court. 145. The Court considers that Article 6 § 2 of the Convention by no means prevented the competent authorities from referring to the applicant’s existing conviction when the matter of his guilt had not been finally determined. Nonetheless, any reference to a conviction that has not yet become final should be made with all the discretion and restraint which respect for the presumption of innocence demands (see, mutatis mutandis, Konstas v. Greece, no. 53466/07, § 34, 24 May 2011). 146. The Court also reiterates that the Convention must be interpreted in such a way as to guarantee rights which are practical and effective as opposed to theoretical and illusory (see, for example, Artico v. Italy, 13 May 1980, § 33, Series A no. 37, and Capeau v. Belgium, no. 42914/98, § 21, ECHR 2005‑I). Accordingly, and in the light of the foregoing, it considers that the presumption of innocence cannot cease to apply while the appeal proceedings are still pending simply because the accused was convicted at first instance. To conclude otherwise would contradict the role of appeal proceedings, where the appellate court is required to re-examine the earlier decision submitted to it as to the facts and the law (see Konstas v. Greece, cited above, § 36). 147. The Court considers, in this connection, that only a formal finding of a previous crime, that is, a final conviction, may be taken as a reason for ordering pre-trial detention on the ground that someone has previously been convicted. To consider the mere fact that there are other, separate and still pending, criminal proceedings against the person concerned as a conviction would unavoidably imply that he or she was guilty of the offences that were the subject of those proceedings. This is exactly what happened in the present case where the national courts repeatedly stated that the applicant had already been convicted of similar offences even though his criminal record clearly indicated that he had not been convicted of any offences. Furthermore, they also considered the fact that parallel criminal proceedings were pending against him as a relevant factor in assessing the risk of his reoffending and considered that that fact showed a lack of conformity of his lifestyle with the laws, thus implying that he was guilty of the offences that were the subject of those proceedings. They thus repeatedly breached the applicant’s right to be presumed innocent in the said separate proceedings pending concurrently (see, by way of comparison, Hajnal v. Serbia, no. 36937/06, § 131, 19 June 2012). 148. There has accordingly been a violation of Article 6 § 2 of the Convention. V. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 149. The applicant further complained that he had been discriminated against contrary to Article 14 of the Convention. 150. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of the Convention. It follows that it is inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention. VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 151. 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 152. The applicant claimed 4,000 euros (EUR) in respect of non-pecuniary damage. 153. The Government deemed the claim unfounded and excessive. 154. The Court accepts that the applicant must have suffered some non-pecuniary damage in connection with a violation of his right to be presumed innocent and with the excessive length of his pre-trial detention and the failure of the Constitutional Court to examine his complaints on the merits. In view of the circumstances of the present case and ruling on an equitable basis the Court awards the applicant EUR 4,000 in respect of non-pecuniary damage. B. Costs and expenses 155. The applicant also claimed EUR 1,215 in connection with lodging his appeals before the national courts and his constitutional complaints. 156. The Government contested the claim. 157. According to the Court’s case-law, an applicant is entitled to reimbursement of his 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, the Court notes that the applicant’s appeals and constitutional complaint lodged in connection with the decisions ordering and extending his pre-trial detention were aimed at remedying the violation the Court has found under Article 5 § 3 of the Convention. Regard being had to the information in its possession and the above criteria, the Court considers that the sum claimed for costs and expenses in the domestic proceedings should be awarded in full, plus any tax that may be chargeable to the applicant on that amount. C. Default interest 158. 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 1. Declares the complaint under Article 5 § 3 of the Convention concerning the length of and the reasons for the applicant’s pre-trial detention; the complaint under Article 5 § 4 of the Convention about the failure of the Constitutional Court to decide the applicant’s constitutional complaints on the merits; and the complaint under Article 6 § 2 of the Convention admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 5 § 3 of the Convention; 3. Holds that there has been a violation of Article 5 § 4 of the Convention; 4. Holds that there has been a violation of Article 6 § 2 of the Convention; 5. Holds (a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, which are to be converted into Croatian kuna at the rate applicable on the date of settlement: (i) EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,215 (one thousand two hundred and fifteen euros), plus any tax that may be chargeable to the applicant, 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. Done in English, and notified in writing on 31 October 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenIsabelle Berro-LefèvreRegistrarPresident

SECOND SECTION CASE OF GYULA VARGA v. HUNGARY (Application no. 32990/09) JUDGMENT STRASBOURG 22 January 2013 This judgment is final but it may be subject to editorial revision. In the case of Gyula Varga v. Hungary, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Peer Lorenzen, President,András Sajó,Nebojša Vučinić, judges,and Françoise Elens-Passos, Deputy Section Registrar, Having deliberated in private on 11 December 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 32990/09) against the Republic of Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Mr Gyula Varga (“the applicant”), on 16 June 2009. 2. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Public Administration and Justice. 3. On 15 September 2011 the application was communicated to the Government. In accordance with Protocol No. 14, the application was allocated to a Committee of three Judges. THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1949 and lives in Budapest. 5. On 25 June 2002 the applicant initiated an action in compensation against the Hungarian State before the Pest Central District Court. 6. On 31 October 2002 the court gave judgment, dismissing the applicant’s claim. On appeal, the Budapest Regional Court delivered an interlocutory judgment on 11 June 2003. This judgment was quashed by the Supreme Court on 13 January 2005. 7. In the resumed proceedings the Pest Central District Court gave judgment on 26 November 2009. In the absence of appeals, the decision became final on 19 February 2010. THE LAW 8. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement of Article 6 § 1 of the Convention. The Government contested that argument. 9. The period to be taken into consideration began on 25 June 2002 and ended on 19 February 2010. It thus lasted seven years and seven months before three levels of jurisdiction. In view of such lengthy proceedings, the application must be declared admissible. 10. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present application (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or convincing argument capable of persuading it to reach a different conclusion in the present circumstances. Having regard to its case-law on the subject, the Court considers that the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. 11. Relying on Article 41 of the Convention, the applicant claimed 15,067,448 Hungarian forints[1] (HUF) in respect of pecuniary damage and HUF 35,000,000[2] in respect of non-pecuniary damage. The Government contested the claim. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, it considers that the applicant must have sustained some non-pecuniary damage and awards him EUR 2,900 under this head. 12. The applicant also claimed HUF 21,400[3] for the costs and expenses incurred before the Court, such as postal and translation costs. The Government did not express an opinion on the matter. Regard being had to the documents in its possession and to its case-law, the Court awards the applicant the sum in full, that is, EUR 80. 13. 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 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Hungarian forints at the rate applicable at the date of settlement: (i) EUR 2,900 (two thousand nine hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 80 (eighty euros), plus any tax that may be chargeable to the applicant, 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; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 22 January 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Françoise Elens-PassosPeer Lorenzen Deputy RegistrarPresident [1] 54,215 euros (EUR) [2] EUR 125,937 [3] EUR 80

FOURTH SECTION CASE OF RACHWALSKI AND FERENC v. POLAND (Application no. 47709/99) JUDGMENT STRASBOURG 28 July 2009 FINAL 28/10/2009 This judgment may be subject to editorial revision. In the case of Rachwalski and Ferenc v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,Giovanni Bonello,Ljiljana Mijović,Ján Šikuta,Mihai Poalelungi,Nebojša Vučinić, judges,and Lawrence Early, Section Registrar, Having deliberated in private on 7 July 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 47709/99) against the Republic of Poland lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Polish nationals, Mr Piotr Rachwalski and Ms Agata Ferenc (“the applicants”), on 18 October 1998. 2. The applicants were represented by Mr Adam Bodnar, a lawyer practising in Warsaw. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. 3. The applicants alleged, in particular, that they had been deprived of their liberty during an unlawful search of their apartment and that the police had used excessive and unjustified force towards them. They complained of a breach of Articles 3, 5 and 8 of the Convention. 4. By a decision of 21 October 2008 the Court declared the application partly admissible. 5. The applicants and the Government each filed observations on the merits (Rule 59 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicants were born in born in 1973 and 1976 respectively and live in Wągrowiec. 7. The parties do not fully agree about the facts of the case, which may be summarised as follows. 1. As presented by the applicants 8. The second applicant lived with a group of friends, including the first applicant, mostly students, in an old and decrepit house they had rented in Wrocław. They occasionally invited their friends to spend a night or a couple of days in their house. 9. On the night of 14 June 1997 there was a group of students sleeping in the house. At 3 a.m. they were awakened by two police officers patrolling the area. The police enquired whether the inhabitants knew the owner of an unlocked car parked in front of the house. 10. The applicants and one of their friends, D. S., started a polite discussion with the police officers about the car. It was confirmed that one of the residents of their apartment was the owner of the car. However, the police announced their intention of towing the car away to the police car park. The applicants argued that it was not forbidden or illegal to keep the car unlocked. At the police’s request, they produced their identity cards and the registration card of the car, whose owner was asleep in the house. 11. The police were not satisfied with their explanation and the dispute became more intense. In reaction to the opinions expressed about the intervention, in particular by D. S., the policemen used truncheons. They hit D. S. several times and handcuffed him. The applicants tried to argue with the policemen, to no avail. The police called other police officers and shortly afterwards approximately ten other policemen arrived. They hit the first applicant with their truncheons several times and the second applicant once. Thereupon D. S. was taken to the police car where he was beaten. The applicants were ordered to stand against a fence. They were pushed and jostled and the policemen insulted them referring to them as “scum”, “slobs”, “queers” (hołota, brudasy, pedały). 12. Subsequently, a group of policemen, armed with truncheons and guarded by police dogs, entered the house, woke up the other occupants and ordered them to stand against the wall. Then the police searched the house. No information was provided about the grounds, purpose or legal basis for the search. During this time the police showered abuse on the students. They pushed and shoved them. This lasted for about half an hour. Afterwards, the police left the house and warned the students that some of them were in an illegal situation as they were not registered as inhabitants of the house, and threatened that they would be in trouble if they submitted a complaint about the events. 13. The police left, taking D. S. with them. 14. On 16 June 1997 the applicants requested to be examined by a forensic medicine specialist. It was established that the first applicant had two long bruises on his left arm, and other bruises on the palm of his hand. The second applicant had a blue mark on her bottom (13 by 9 cm). It was stated that these bruises could have been caused by the use of police truncheons. 2. As presented by the Government 15. The second applicant and her friend D. S. lived in the house with the owner’s permission. They often received young visitors from all over the country. On the night in question the unlocked car parked in front of the house had seemed very suspicious to the policemen A. C. and R. S., who thought it was stolen and considered that it should be towed away. They had knocked at the window and the second applicant informed them that the owner was in the house. She first objected to the police action at night, and then went to look for the owner of the car among the fourteen young people who were sleeping in the house. The applicants behaved aggressively, loudly expressing opinions about the purpose and nature of the intervention. D. S. raised his voice to the police and pushed A. C. 16. The police action was a result of the fact that the applicants did not comply with the police requests to provide necessary information. The applicants talked to the police with raised voices and took a very active part in the struggle with the policemen. 17. The police officer had misinterpreted the first applicant’s intentions when he handed him his documents and had hit him to prevent his being attacked. The applicant was most probably hit once. 18. The atmosphere was tense. The owner of the car gave the police the keys and documents to the car. As D. S. was unruly and continued to express objections, the policemen decided to arrest him. While he was being taken into custody by the police, he hit one of them in the face. Thereupon truncheons were used against him. Given the attitude of D. S. and of other persons present, the police called for assistance. Two other police patrols and an emergency team arrived. As the applicants were interfering with the arrest of D. S., they were hit with truncheons. 19. Police officers D. R. and J. G. then entered the house to check the identity of the persons present. After that, the intervention was terminated. 3. The prosecutor’s investigation and conclusion 20. On 16 June 1997 the applicants requested the Wrocław District Prosecutor to institute criminal proceedings against the police for abuse of authority. On 23 December 1997 the prosecutor refused to do so. He found that no criminal offence had been committed. 21. The prosecutor considered that the police action had been justified. The police could have reasonably suspected that the unlocked car had been stolen, even though it had not been reported as such. The further developments had certainly come as a surprise to both the police and other persons involved in the incident. The second applicant had objected in a pretentious tone (“pretensjonalny ton głosu”) to having been woken up and to the check on the car taking place at night. She had been informed that the car would be towed away if the owner was not found. She could not locate the owner of the car, as there were many people in the house who did not know each other. The second applicant had woken all of them up in an attempt to find the owner. 22. D. S. had objected in a loud voice to the police intervention. He had insisted that the intention of the police was to harass the persons in the house. As he had not obeyed the police requests to calm down and the verbal exchange between him and the police officer A. C. had become increasingly heated, it had been decided that he should be taken to the police car. The prosecutor considered that this had been justified in the light of D. S.’s aggressive behaviour. Given that D. S. had been behaving aggressively, direct force had been used against him, including the use of truncheons and handcuffs. It was true that the applicants’ versions of the facts diverged, and these divergences could not be clarified on the basis of evidence from other witnesses, but it was clear that, in the face of his resistance, it had been necessary to use such force in order to take D. S. to the car. 23. Given the applicants’ behaviour, the police had had to call assistance. They had also felt threatened by the presence of other persons at the scene of the incident. The applicants had been hit as they had ignored the order to let D. S. go so that he could be taken to the car. In the darkness, the police had not noticed that the first applicant had in fact had his documents in his hand in order to show them to the police, and they had thought that he intended to hit them. 24. It was finally noted that the accounts of the facts given by the persons present at the scene, other than the police, were highly divergent, making it impossible to establish the facts of the case. However, the testimony given by the policemen was coherent. Therefore, the submissions of the other persons could not be considered credible and had to be assessed critically. 25. The prosecutor concluded that the measures taken by the police had been proportionate to the situation. 4. The appeal against the prosecutor’s decision 26. The first applicant appealed. He argued that the police brutality and aggression had been totally unjustified. Nothing in the behaviour of the persons present had justified the use of force. The police had entered private property and effected a search of the house without any sound reasons, hitting and insulting the persons sleeping in the house. He argued that he was a law-abiding citizen, a student of two university faculties and a member of the Municipal Council of his town. He had not given any reason to be beaten, verbally insulted and humiliated just at the whim of the police. The police should not intervene in private property at night and hit, insult and humiliate people just because they looked, or lived, differently. The facts as established by the prosecutor did not correspond to what had happened. All the facts had been established on the basis of the arguments of the police, who had apparently been instructed by police lawyers as to what they should say. During the questioning the prosecutor had made unpleasant remarks about the hairstyles, clothes and views of the young inhabitants of the house, which had influenced her decision to discontinue the proceedings. He submitted that the police had humiliated both himself and the others. 27. The second applicant submitted that the assessment of the evidence had been biased and that the police had clearly abused their authority, insulting and humiliating her and other participants in the incident. 5. The outcome of the appeal 28. On 20 May 1998 the Wrocław Regional Prosecutor upheld the contested decision. He considered that the intervention of the police had been justified in so far as they wanted to verify the identity of the owner of the car. D. S. had behaved aggressively, both verbally and physically. Regardless of whether he had intended to hit A. C. in the face or not, his behaviour could have been perceived as an intentional assault. It was for that reason that a decision to arrest him had been taken. The identity check of the persons present in the house had been necessary as they had insulted the policemen. 29. The social status of the young people, namely the fact that they were students, imposed certain obligations on them, in particular an obligation to cooperate with the police in the interest of law and order. 30. The findings of the inquiry had not established that the students had been insulted verbally by the police, as the policemen consistently denied this. Nothing had been found to support the first applicant’s submission that the testimony of the policemen had been suggested to them by the police lawyers. 31. The prosecutor concluded that the contested decision had to be upheld. II. RELEVANT DOMESTIC LAW 32. The Code of Criminal Procedure contains the following provisions on the search of premises by the police: Article 221 § 1 Searches of inhabited premises can be made during the night only in cases when it is indispensable to carry out such searches without delay. Night-time lasts from 10 p.m. until 6 a.m. § 2 A search which has commenced during the day can be continued during the night. § 3 Only premises which are accessible at this time to a particular person or persons, or premises designed for storage, can be searched at night. 33. The police’s powers regarding the use of coercive measures is regulated by the Police Act of 6 April 1990 and by the Ordinance of the Council of Ministers of 17 September 1990 setting out the conditions and method of application of coercive measures. 34. Pursuant to section 14 of the Police Corps Act, within the limits of their competence, the police are required – in order to examine, prevent and detect offences and petty offences – to carry out operational and reconnaissance activity, take part in an investigation or inquiry, or carry out administrative activity and safeguard public order. In the exercise of their powers the police must respect human dignity and human rights (section 3). 35. Section 16 of the Police Corps Act provides that if a person does not comply with the lawful request of police officers they may apply such coercive measures as, for instance, using truncheons. 36. The police are bound by the principle of minimal use of coercive measures. In accordance with this principle the police must only use such measures when they are absolutely necessary in the given circumstances in order to enforce execution of orders issued by the police (section 16 § 2). 37. The ordinance setting out the conditions, circumstances and method of application of coercive measures by the police, issued on the basis of section 16 § 4 of the Police Corps Act (Ordinance of the Council of Ministers of 17 September 1990 on the Use of Coercive Measures by the Police), indicates – among other coercive measures – the use of truncheons. Section 5 of the (“the 1990 Ordinance”) provides: “1. Physical force shall be used in order to restrain a person, to counter an attack or to make [a person] obey an order. 2. When using physical force, no one shall hit a person, unless he has to do so in self-defence or in order to counter an unlawful attack against life, health or property of others. ” Section 13 of the Ordinance, in so far as relevant, provided at the material time: “2. It is forbidden to use police truncheons against persons displaying passive resistance unless the use of force turns out to be ineffective. 3 (1) It is forbidden to hit or push with a truncheon against a [person’s] head, neck, stomach and non-muscled and particularly delicate parts of the body...” 38. Pursuant to section 142 § 1 of the Police Corps Act a police officer who in the performance of official duties oversteps his powers and violates the personal interests and dignity of a citizen, is liable to imprisonment for up to five years. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 39. The applicants complained under Article 3 of the Convention that the police conduct towards them had amounted to degrading treatment. Article 3 of the Convention reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties’ submissions 1. The applicants 40. The applicants argued that the police action had constituted a penalty for their unconventional lifestyle. In their opinion the policemen had intended to humiliate and harass them and had acted with a sense of impunity. 41. The applicants further submitted that they and their friends had on several occasions been harassed by police officers who apparently did not like their appearance. In view of the fact that it had never been established that they had done anything against the law, the applicants argued that the insults directed at them during the incident had manifestly indicated prejudice on the part of the police officers against them. 42. The applicants argued that the use of truncheons against them had been unjustified and excessive. Hitting one of the applicants, a young woman, had been humiliating and punitive. They disputed the Government’s argument that their behaviour had been aggressive and that one of the applicants had been hit only once by the policemen. 43. The applicants submitted that they had been insulted, assaulted and humiliated by having been expelled from the house by the policemen using truncheons and police dogs and placed against the wall in their pyjamas. They argued that the investigation had been opened only after they had made repeated requests and following press releases concerning the incident. The applicants also questioned the impartiality and objectivity of the prosecuting authorities in the conduct of the investigation. 2. The Government 44. The Government argued that the applicants had not been subjected to degrading treatment and that the police had made a legitimate intervention in the applicants’ case, showing due diligence when performing their official duties. 45. The Government submitted that the applicants had disturbed the legitimate police action aimed at arresting one of the students, who had assaulted a policeman and had actively resisted the attempt to arrest him. The Government further stressed that the police officer had misinterpreted the first applicant’s intentions when he held out his documents and had hit him to prevent a perceived attack. In the Government’s opinion, the applicant was most probably hit once. 46. According to the Government’s further submissions, the applicants did not comply with the police requests. The situation was very tense and the applicants had talked to the police with raised voices and taken a very active part in the struggle with the policemen. However, the policemen had never intended to arrest the applicants. 47. The Government emphasised that the police intervention had been necessary. The applicants had behaved aggressively and had refused to obey police orders. The use of direct force against them had therefore been indispensable and proportionate. 48. In the Government’s view, the level of suffering and humiliation in the applicants’ case did not reach the threshold that would justify the applicability of Article 3 of the Convention. 49. With respect to the procedural aspect of the case, the Government argued that the investigation had complied with the requirements of Article 3 of the Convention. In order to collect more evidence the prosecutor had twice decided to extend the investigation. Twenty-eight witnesses to the incident were interviewed and some of them confronted. In the Government’s view the investigation conducted by the public prosecutor had been effective. 50. The Government also submitted that the applicants could have brought private prosecutions against the police officers once the investigation automatically conducted under section 142 of the Police Corps Act had been discontinued. B. The Court’s assessment 1. General principles deriving from the Court’s case‑law 51. As the Court has held on many occasions, 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 [GC], no. 26772/95, 6.4.2000, § 119, ECHR 2000‑IV). 52. The Court further recalls that, according to the Convention organs’ case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, § 162). The same holds true in so far as degrading treatment is concerned (see Costello-Roberts v. the United Kingdom, judgment of 25 March 1993, Series A no. 247-C, p. 59, § 30). As for the criteria concerning the notion of “degrading treatment”, the Court notes that the treatment itself will not be degrading unless the person concerned has undergone humiliation or debasement attaining a minimum level of severity. The assessment of this minimum level of severity is relative; it has to be assessed with regard to the circumstances of any given case (cf., among many authorities, Ireland v. the United Kingdom, cited above, and Dougoz v. Greece, no. 40907/98, § 44). 53. It is also recalled that treatment may be considered degrading if it is such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see Ireland v. the United Kingdom, cited above, pp. 66-67, § 167). Moreover, it is sufficient if the victim is humiliated in his or her own eyes (see Tyrer v. the United Kingdom, judgment of 25 April 1978, Series A no. 26, p. 16, § 32, and Smith and Grady v. the United Kingdom, nos. 33985/96 ; 33986/96, § 120). 54. Furthermore, in considering whether a treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3. Even the absence of such a purpose cannot conclusively rule out a finding of a violation of Article 3 (see Peers v. Greece, no. 28524/95, §§ 67-68, ECHR 2001‑III; Valašinas v. Lithuania, no. 44558/98, § 101, ECHR 2001‑VIII; and Iwańczuk v. Poland, no. 25196/94, § 52, 15 November 2001). 2. Application of the above principles to the present case 55. The Court notes that in the present case police officers woke up the applicants in the middle of the night to inquire about the ownership of an unlocked car parked outside the house. It observes that the young people who were sleeping in the house had not behaved in any manner that could have disturbed the public order. The authorities did not refer to any complaints by third parties about the conduct of the occupants which might have triggered such a visible police presence. 56. The Court further notes that two distinct phases can be distinguished in the subsequent police intervention. 57. The first phase consisted in the exchange between two police officers, the applicants and their friend D.S. The applicants and D.S. engaged in a heated discussion with the police officers. The Court notes the District Prosecutor’s finding that at this stage the two officers felt threatened (see paragraph 23 above) and used truncheons. This sense of threat also prompted the officers to use force against D.S. and to call for reinforcements. 58. The Court further notes that the second phase of events, after the arrival of approximately ten other police officers with dogs, was marked by a serious escalation in tension. The police officers subsequently ordered all the applicants out of the house and stood them against a wall, dressed in their night clothes. The Court notes that it was at that moment that the police officers used truncheons against the applicants. In the Court’s opinion, the manner of intervention of the police at that stage is particularly open to criticism. It has not been shown or argued that the applicants at that time had behaved in an aggressive manner which would have warranted the use of truncheons against them. Nor has the Court been presented with any evidence to show that at that juncture the applicants had offered any physical resistance. It must be noted that the young people, including the applicants, were at that time confronted by a group of police officers, specially trained and equipped to overcome physical resistance. Even assuming that when remonstrating with the police they questioned the need to show their identity documents or expressed objections as to the purpose of the intervention, the use of truncheons against the applicants can only be considered disproportionate to the situation. It cannot be ruled out that at that stage the use of force against the applicants was motivated rather by punitive intentions than by any genuine need to break or discourage any physical opposition. 59. The Court reiterates that recourse to physical force against a person which has not been made strictly necessary by his or her own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3. Such a strict proportionality approach has been accepted by the Court also in respect of a situation where an individual is already under the full control of the police (see, among others, Klaas v. Germany, 22 September 1993, § 30, Series A no. 269; Rehbock v. Slovenia, no. 29462/95, §§ 68-78, ECHR 2000-XII; Milan c. France, no.7549/03, 24 January 2008, § 68). 60. Lastly, the Court observes that in their submissions the Government confined themselves to pointing to the lawfulness of the measures complained of. They emphasised that the applicants had not complied with the police requests and that the police officers has misinterpreted the first applicant’s intentions and had acted in order to prevent a perceived attack. However, they did not explain what criteria had been used to assess the necessity of the use of a police team with guard dogs and truncheons to investigate a minor issue of an unlocked car and in the absence of any aggression or behaviour disturbing the public order on the part of the applicants. The mere fact that the car was left unlocked in front of the house cannot, in the Court’s view, in itself constitute a good reason for a heavy‑handed police intervention. 61. The Court, taking into account the circumstances of the incident as a whole, is of the opinion that the applicants must have experienced a profound sense of vulnerability, powerlessness and affront which can reasonably be described as humiliating and therefore degrading within the meaning of Article 3 of the Convention. 62. Having regard to this finding, the Court is further of the view that it is not necessary in the particular circumstances of this case to examine whether the procedural requirements under Article 3 have been complied with. 63. The Court concludes that there has been a breach of Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 64. The applicants further complained that their right to respect for their private life and home had been breached as the police officers had broken into the house without any legal right to do so. Article 8 of the Convention reads: “1. Everyone has the right to respect for his private ... life, his home .... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. The parties’ submissions 1. The Government 65. The Government submitted that the police had not searched the house but had only entered it and requested the persons inside to leave. 66. The Government argued that the applicants had voluntarily let the police officers enter the house. They submitted that there was no proof that a search of the house had taken place. They further argued that if the applicants and the car’s owner had complied quickly with the police officers’ request, there would have been no intervention. 2. The applicants 67. The applicants rejected the Government’s submissions and maintained that the police officers had entered the flat at about 3 a.m. on 14 June 1997 by force without their consent and had police dogs and truncheons with them. They had searched the premises and escorted the occupants out. B. The Court’s assessment 1. General principles deriving from the Court’s case-law 68. Article 8 of the Convention protects the individual’s right to respect for his private and family life, his home and his correspondence. A home will usually be the place, the physically defined area, where private and family life develops. The individual has a right to respect for his home, meaning that an unauthorised entry into a person’s home would constitute a breach of that right (see, mutatis mutandis, Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 96, ECHR 2003-VIII). 69. The Court has consistently held that Contracting States have a certain margin of appreciation in assessing the need for an interference with the right to respect for one’s home, but it goes hand in hand with European supervision. The exceptions provided for in paragraph 2 of Article 8 of the Convention are to be interpreted narrowly (see Klass and Others v. Germany, 6 September 1978, § 42, Series A no. 28), and the need for them in a given case must be convincingly established. 70. Undoubtedly, in the prevention of crime it is of key importance that the relevant authorities can act promptly and efficiently. The Court therefore recognises that Contracting States may consider it necessary to have recourse to measures such as forcible entry onto premises and house searches in order to obtain evidence and, where appropriate, to apprehend and prosecute offenders. Nonetheless, the relevant legislation and practice must afford adequate and effective safeguards against abuse (see, among other authorities, Crémieux v. France, 25 February 1995, no. 11471/85, § 39). 2. Application of the above principles to the present case 71. The Court notes that the facts concerning the entry into the applicants’ house are disputed by the parties. According to the applicants, a group of police officers, armed with truncheons and guarded by police dogs, entered and searched their apartment at about 3 a.m. on 14 June 1997. The Government argued that only two police officers had entered the house. 72. The Court observes, however, that it is undisputed that, after the atmosphere had become tense and the officers called for assistance, two police patrols and an emergency team were involved in the intervention. In the Court’s opinion, considering that the police officers had come to the applicants’ house at night, it can reasonably be concluded that the applicants were left with little choice but to allow the police to enter the premises. It is difficult to accept the Government’s argument that, in the circumstances, any consent given by the applicants was free. There has accordingly been an interference with their right to respect for their home. That interference will only be justified if it complies with the requirements set out in Article 8 § 2 of the Convention. 73. In that respect, the Court has regard to the fact that the applicants were confronted by a number of police officers carrying truncheons and accompanied by dogs at the front door of their house in the middle of the night. No compelling justification was given by the Government for the use of such visible force. It must be observed that a risk of abuse of authority and violation of human dignity is inherent in a situation such as the one which arose in the present case. As the Court stressed in a similar case, Kučera v. Slovakia (no. 48666/99, judgment of 17 July 2007), safeguards should be in place in order to avoid any possible abuse in such circumstances and to ensure the effective protection of a person’s rights under Article 8 of the Convention. Such safeguards might include the adoption of regulatory measures which both confine the entering of premises and prescribe relevant procedural guarantees ensuring, for example, the presence of an impartial person during the operation or the obtaining of the owner’s clear consent as a pre-condition to entering his or her premises. 74. The Court observes that certain guarantees to that effect are incorporated in Article 221 of the Code of Criminal Procedure and in the Police Corps Act. However, those guarantees failed to prevent the situation complained of in the instant case from occurring; the police did not seem to regard them as applicable or relevant. 75. The Court further notes that, as indicated above, the police had come to the applicants’ door in order to ask them about an unlocked car parked outside the house. It has already highlighted under Article 3 the total lack of justification for the police’s heavy-handed approach to the investigation into the ownership of the car. For the Court, the decision to enter the premises can only be described as disproportionate in the circumstances. 3. Conclusion 76. In view of the above considerations, the Court is not satisfied that the action in issue was proportionate and compatible with the applicants’ right to respect for their home. 77. There has accordingly been a violation of Article 8 of the Convention as a result of the entry by the police into the applicants’ house. III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 78. The applicants also complained that the conduct of the police officers had infringed their right to liberty and security guaranteed by Article 5 of the Convention. Article 5 § 1 of the Convention reads, in so far as relevant: “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: (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;” 79. Bearing in mind its finding of a violation of Articles 3 and 8 of the Convention, the Court does not consider it necessary to examine whether the facts alleged also constituted deprivation of liberty within the meaning of Article 5. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 80. 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 81. The applicants sought 4,000 euros (EUR) each in compensation for pecuniary and non‑pecuniary damage they had suffered on account of the alleged violation of Article 3 of the Convention and EUR 4,000 each on account of the alleged violation of Article 8. 82. The Court accepts that the applicants suffered non‑pecuniary damage and, making its assessment on an equitable basis, awards each of the applicants EUR 2,000 under this head. B. Default interest 83. 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 4. Holds (a) that the respondent State is to pay each of the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, 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; 5. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 28 July 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyNicolas BratzaRegistrarPresident

FOURTH SECTION CASE OF HASAN CEYLAN v. TURKEY (Application no. 58398/00) JUDGMENT STRASBOURG 23 May 2006 FINAL 23/08/2006 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 Hasan Ceylan v. Turkey, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrG. Bonello,MrR. Türmen,MrM. Pellonpää,MrK. Traja,MrL. Garlicki,MrJ. Šikuta, judges,and Mr M. O’Boyle, Section Registrar, Having deliberated in private on 4 May 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 58398/00) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Hasan Ceylan (“the applicant”), on 30 March 2000. 2. The applicant, who had been granted legal aid, was represented by Mr M. A. Kırdök and Mrs M. Kırdök, lawyers practising in İstanbul. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court. 3. On 19 May 2005 the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. 4. The applicant and the Government each filed observations on the merits. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1964 and lives in İstanbul. 6. On 9 October 1994 the applicant was arrested and taken into police custody by police officers from the Anti-terror branch of the İstanbul Security Directorate on suspicion of membership of an illegal organisation, namely the TKP-ML/TIKKO[1]. 7. On 21 October 1994 the applicant was brought before a judge at the İstanbul State Security Court who ordered his remand in custody. 8. On 18 November 1994 the public prosecutor at the İstanbul State Security Court filed a bill of indictment against the applicant, together with ten other suspects, accusing him of membership of an illegal organisation. He requested that the applicant be convicted and sentenced under Article 168 § 2 of the Criminal Code and Article 5 of Law no. 3713. 9. On 7 December 1994 the criminal proceedings against the applicant commenced before the İstanbul State Security Court. 10. At the end of the hearings held on 1 February and 24 March 1995, the first-instance court ordered that the applicant’s detention pending trial be continued having regard to the nature of the offence that he was charged with, the state of the evidence, the date of the detention on remand decision and of the fact that he had not been heard before the court. 11. On 15 May 1995 the applicant made statements before the İstanbul State Security Court and denied the charges against him. He contended that he was not a member of an illegal organisation. At the end of the hearing, the court decided that his detention pending trial should be continued having regard to the nature of the offence that he was charged with, the state of the evidence and the date of the decision to remand him in custody. 12. On 30 June 1995 the applicant’s representative requested the İstanbul State Security Court to release the applicant pending trial. She contended that a third person, K.T., had left a briefcase containing illegal documents in the applicant’s house and that he had been arrested and prosecuted because of these documents. In this connection, the lawyer maintained that the charges brought against the applicant under Article 168 § 2 of the Criminal Code were erroneous and that the applicant could only be charged, under Article 169 of the Criminal Code, with aiding and abetting members of an illegal organisation. The applicant’s lawyer finally claimed that the acts of the applicant could not be considered to constitute an offence under Article 169 of the Criminal Code and that he should be released, since the length of his remand in custody was excessive. The İstanbul State Security Court dismissed the request. 13. Between 30 June 1995 and 7 February 1997 the first-instance court held twelve more hearings. Throughout these hearings, the applicant and his representative made written and oral submissions and requested that the applicant be released pending trial. They reiterated their submissions of 30 June 1995. The İstanbul State Security Court dismissed the requests on all occasions and held that the applicant’s detention pending trial should continue having regard to the nature of the offence that he was charged with, the state of the evidence and the date of the detention on remand decision. 14. On 7 February 1997, upon the request of the public prosecutor, the İstanbul State Security Court ordered the applicant and four of his co‑accused to make additional defence submissions in view of the possibility of the application of Article 168 § 1 of the Criminal Code, instead of Article 168 § 2, in the verdict. At the end of the hearing, the court once again dismissed the applicant’s request for release pending trial. 15. On 28 March 1997 the applicant made his additional defence submissions before the İstanbul State Security Court. On the same day, the court once more dismissed the applicant’s request to be released pending trial. 16. Until 24 December 1999 the İstanbul State Security Court held sixteen more hearings. At the end of every hearing, the court ordered the applicant’s continued remand in custody taking into consideration the nature of the offence that he was charged with, the state of the evidence, the content of the case-file and the length of detention on remand. 17. On 24 December 1999 the İstanbul State Security Court convicted the applicant of aiding and abetting members of an illegal organisation under Article 169 of the Criminal Code and Article 5 of Law no. 3713. The court held that there was insufficient evidence to convict the applicant of membership of the TKP‑ML/TIKKO. The court sentenced the applicant to five years’ imprisonment and ordered his release from detention in view of the length of his remand in custody. II. RELEVANT DOMESTIC LAW AND PRACTICE 18. A description of the relevant domestic law at the material time can be found in Demirel v. Turkey judgment (no. 39324/98, §§ 47-49, 28 April 2003). THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 19. The applicant complained that his detention on remand exceeded the “reasonable time” requirement as provided in Article 5 § 3 of the Convention, which reads insofar as relevant as follows: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” A. Admissibility 20. The Court considers that the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes therefore that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. B. Merits 21. The Government maintained that the applicant’s arrest was based on the existence of reasonable grounds of suspicion of his having committed an offence and that the custodial measure had been reviewed periodically by the competent authority, with special diligence, in accordance with the requirements laid down by the applicable law at the relevant time. They pointed out that the offence with which the applicant was charged was of a serious nature, and that his continued remand in custody was necessary to prevent crime and to preserve public order. Finally, the Government submitted that the State Security Court had deducted from the actual sentence imposed the period of his remand in custody and that the overall length of his remand in custody was reasonable in view of the number of co-accused and the complex nature of the proceedings. 22. The applicant contested these arguments. He submitted, in particular, that despite the fact that no new evidence had been admitted to the case-file in his respect, the decisions to prolong his remand in custody were based on stereotyped reasons. The applicant claimed that in accordance with the execution of sentences under Article 169 of the Criminal Code, he would have spent only three years and nine months in prison whereas he had been remanded in custody for five years. 23. The Court reiterates that it falls in the first place to the domestic judicial authorities to ensure that, in a given case, the detention of an accused person pending trial does not exceed a reasonable time. To this end they must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of presumption of innocence, a departure from the rule of respect for individual liberty, and set them out in their decisions on the applications for release. It is primarily on the basis of the reasons given in these decisions, and of the established facts mentioned by the applicants in their appeals, that the Court must determine whether or not there has been a violation of Article 5 § 3 of the Convention (see Sevgin and İnce v. Turkey, no. 46262/99, 20 September 2005, § 61). 24. The persistence of a reasonable suspicion that the person arrested has committed an offence is a sine qua non for the validity of the continued detention, but after a certain lapse of time, it no longer suffices; the Court must then establish whether the other grounds cited by the judicial authorities continued to justify the deprivation of liberty (see, among other authorities, Ilijkov v. Bulgaria, no. 33977/96, § 77, 26 July 2001, and Labita v. Italy [GC], no. 26772/95, §§ 152-153, ECHR 2000-IV). 25. In the instant case, the Court notes that the period to be taken into account began on 9 October 1994 when the applicant was taken into police custody and ended on 24 December 1999 when he was convicted by the first-instance court. It thus lasted approximately five years, two months and fifteen days. During this time, the first-instance court considered the applicant’s continued detention at the end of each hearing, either on its own motion or upon the request of the applicant. However, the Court notes from the material in the case file that the State Security Court ordered the applicant’s continued detention on remand using identical, stereotyped terms, such as “having regard to the nature of the offence and the state of the evidence”. 26. The Court takes note of the seriousness of the offence attributed to the applicant and the severity of the relevant punishment. However, it recalls that the danger of absconding cannot solely be assessed on the basis of the severity of the sentence risked, but must be analysed with reference to a number of other relevant additional elements, which may either confirm the existence of such a danger or make it appear so slight that it cannot justify detention pending trial (see Muller v. France, judgment of 17 March 1997, Reports 1997 II, § 43, and Letellier v. France, judgment of 26 June 1991, Series A no. 207, § 43). In this regard, the Court notes the lack of such sufficient reasoning in the domestic court’s decisions to prolong the applicant’s remand in custody. 27. Finally, although, in general, the expression “the state of the evidence” may be a relevant factor for the existence and persistence of serious indications of guilt, in the present case it nevertheless, alone, cannot justify the length of the detention of which the applicant complains (see Letellier, cited above; Tomasi v. France, judgment of 27 August 1992, Series A no. 241-A; Mansur v. Turkey, judgment of 8 June 1995, Series A no. 319-B, § 55; and Demirel, cited above, § 59). 28. The foregoing considerations are sufficient to enable the Court to conclude that the length of the applicant’s pre-trial detention, which lasted five years and two months, taken together with the stereotyped reasoning of the court, has exceeded the reasonable-time requirement. 29. There has accordingly been a violation of Article 5 § 3 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 30. 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 31. The applicant claimed 7,650 new Turkish liras (YTL) (approximately 4,800 euros (EUR)) in respect of pecuniary damage for loss of earnings and YTL 15,000 (approximately EUR 9,411) of non-pecuniary damage. 32. The Government disputed these claims. 33. As regards the alleged pecuniary damage sustained by the applicant, the Court notes that he has failed to produce any receipt or documents in support of his claim. The Court accordingly dismisses it. 34. On the other hand, the Court considers that the applicant must have suffered non‑pecuniary damage such as distress and anxiety resulting from the lengthy period in remand in custody, which cannot be sufficiently compensated by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 4,500 in respect of non‑pecuniary damage. B. Costs and expenses 35. The applicant also claimed, in total, YTL 5,800 (approximately EUR 3,639) for costs and expenses incurred before the Court. In support of his claim, the applicant submitted a schedule of costs prepared by his representative and the İstanbul Bar Association’s recommended minimum fees list for 2005. However, he did not submit any receipt or invoice. 36. The Government disputed the applicant’s claim. 37. According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. 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 1,000 less EUR 715 received by way of legal aid from the Council of Europe. C. Default interest 38. 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 1. Declares the application admissible; 2. Holds that there has been a violation of Article 5 § 3 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts to be converted into new Turkish liras at the rate applicable at the date of settlement: (i) EUR 4,500 (four thousand and five hundred euros) in respect of non-pecuniary damage; (ii) EUR 285 (two hundred and eighty five euros) in respect of costs and expenses; (iii) any tax that may be chargeable on the above amounts; (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; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 23 May 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Michael O’BoyleNicolas BratzaRegistrarPresident [1]1. Communist Party of Turkey/Marxist-Leninist, Turkish Workers and Peasants’ Liberation Army.

FOURTH SECTION CASE OF CIORAP v. MOLDOVA (Application no. 12066/02) JUDGMENT STRASBOURG 19 June 2007 FINAL 19/09/2007 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 Ciorap v. Moldova, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrJ. Casadevall,MrG. Bonello,MrK. Traja,MrS. Pavlovschi,MrL. Garlicki,MsL. Mijović, judges,and Mrs F. Aracı, Deputy Section Registrar, Having deliberated in private on 29 May 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 14437/05) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr Tudor Ciorap (“the applicant”) on 5 December 2001. 2. The applicant, who was granted legal aid, was represented by Mr V. Iordachi from “Lawyers for Human Rights”, a non-governmental organisation based in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Pârlog. 3. The applicant complained under Article 3 of the Convention (inhuman conditions of detention and force-feeding), under Article 6 § 1 (access to court in regard to his force-feeding), under Article 8 (censorship of correspondence, the right to meet his family in private) and under Article 10 (access to the internal regulations of the remand centre). 4. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). On 11 October 2005 a Chamber of that Section declared the application partly inadmissible and decided to communicate the remaining complaints to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1965 and lives in Chişinău. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. The applicant worked for “Social Amnesty”, an NGO specialising in offering legal help to persons deprived of their liberty. He claims that as a result of his activities he became the target of persecution. In two sets of proceedings he was charged with a number of serious fraud offences. The applicant is a second degree invalid and has been diagnosed with “mosaic schizophrenia”. 1. Conditions of detention 8. On 23 October 2000 the applicant was arrested. On 6 November 2000 he was transferred to the remand centre of the Ministry of Justice (also known as prison no. 3, subsequently re-named prison no. 13) in Chişinău. He spent certain periods of time in the Pruncul detainee hospital. He was convicted of a number of crimes but is still remanded on other charges. 9. According to the applicant, the conditions of detention were inhuman. In particular, he referred to the overcrowding in the cells (which occasionally meant 2-3 detainees for each 2m2 of space), accompanied by the fact that detainees with infectious diseases such as tuberculosis were kept together with other detainees, especially during hunger-strikes; the presence of parasitic insects; the lack of proper ventilation and access to daylight; the rudimentary sanitary conditions which left no room for privacy; the loud radio that was constantly on between 7 a.m. and 10 p.m. together with the very poor quantity and quality of food served. Before 27 May 2005 electricity and cold water were only available for several hours a day. The applicant described his food ration for one day as consisting of 100 grams of porridge with water twice a day and a soup consisting mostly of water for lunch, with an additional 400 grams of bread for the whole day. In support of his complaint regarding the overcrowding in the cell he gave the example of his transfer to cell no. 11 on 2 August 2001, which he shared with five other persons despite the fact that only two bunk beds were available. He claimed that he had to sleep on the floor due to the insufficiency of beds and had access only to electric light for six hours a day. Another example was his detention in cell no. 17a, which accommodated 10 persons in an area of 12m2. 10. The applicant referred to the report of the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) for 2004 (see paragraph 47 below) and the report of the Ministry of Justice regarding the conditions of detention in prison no. 13 (see paragraph 43 below). 11. According to the applicant, he complained to various authorities about his conditions of detention. This was disputed by the Government. The applicant submitted replies from the Penitentiaries' Department and the Public Order Department at the Ministry of Internal Affairs, which dealt, inter alia, with the applicant's conditions of detention. In addition, he submitted copies of his complaints to the Government and the administration of prison no. 3, in which he also complained about the conditions of detention. In its letter of 29 December 2003 the Penitentiaries' Department conceded that prison no. 3 was “periodically overcrowded”, which led to an increase in the spread of pediculosis and skin disease. The presence of parasitic insects was also confirmed, although no complaints had been received in this respect from detainees. In 2002-2003 a major disinfection had been carried out in the prison. 12. In a letter to the prison administration dated 17 February 2002 the applicant complained about the absence of beds in cell no. 72 where he was detained at that time, the detainees having to sleep on wooden shelves. He referred to the limited access to daylight and fresh air due to metal blinds covering the window and the presence of strong smells and damp, as well as the presence of parasitic insects, which prevented him from sleeping. In a letter dated 26 May 2002 the applicant complained about his transfer for ten days to solitary detention cell no. 7 which was very damp and caused him to fear that he would contract tuberculosis. In addition, he had not been given food for three days and there were rodents in the cell. There was no furniture, except for a bed which was retracted into the wall during daytime, the applicant having to sit on the bare concrete floor. There was no window and he had electric light for only 5-6 hours a day, leaving him in total darkness for the rest of the time. He requested the visit of a doctor and his transfer to another cell. It appears that the applicant did not receive a reply to these two complaints and the Government have not commented on them. In his “hunger-strike diary” the applicant noted his transfer to cell no. 11 on 2 August 2001 and the presence of five more persons there. 13. According to a letter from the Ministry of Justice dated 25 November 2005, the applicant had been detained in cells nos. 2, 17a, 53, 70a, 84, 89 and 116 all measuring 8-12m2. The number of detainees which those cells could accommodate was not specified and no details were given as to the number of detainees who had been actually detained in those cells together with the applicant. The only exception was cell no. 116, where the applicant was detained at the time of filing the observations (13 December 2005), which measured 10m2 and in which one other person was detained. In a letter to another person detained in the same cell, no. 116, dated 30 November 2005, the Prosecutor General's Office stated that “all the persons detained in that cell have a bed and bed linen”. The video recording submitted by the Government showed two bunk beds in the cell, one of which was placed across the toilet. According to the Government, electricity and cold water were permanently available and there was natural light in each cell. The applicant had the right to a bath every week. Food was given in accordance with the relevant Government regulations, including meat and fish “depending on availability”. Detainees could buy food from the local shop and were allowed to receive parcels from the outside. In addition, the applicant had been treated on many occasions by various doctors as a result of his hunger-strikes and self-mutilation and he benefited from the better conditions in the prison hospital. 2. Force-feeding (a) The applicant's force-feeding 14. The applicant began a hunger-strike on 1 August 2001 as a result of alleged violations of his rights and those of his family. Since no prosecutor came to discuss with him the alleged violations for two weeks, on the night of 14 August 2001 he cut his wrists and set fire to himself. He was treated and was subsequently force-fed a number of times. The applicant submitted his “hunger-strike diary”, in which he noted the dates and manner of his force-feeding, his state of health during the relevant period and his transfers to various cells. The applicant wrote that he had requested to be given food intra-venously rather than by means of a stomach tube. 15. Following the applicant's complaint, on 13 September 2001, the duty doctor made a preliminary diagnosis: “right-sided inter-muscular inguinal hernia?” (“hernie intermusculară inghinală din dreapta?”). On 14 September 2001 a surgeon established the diagnosis: “abscess of the connection of the fore wall?” (“abces de legătură a peretelui anterior?”). Treatment was ordered but the applicant refused it. He submitted that, having refused treatment on 14 September 2001, he was transferred for a few days to a dark, cold and damp solitary confinement cell with no furniture. 16. The prison psychiatrist who examined the applicant several days after the incident of 14 August 2001 declared in court that he had found that the applicant had been perfectly aware of the consequences of his actions and had explained them as a last measure of protest against abuses of his rights. The doctor added that he had been pressured into signing an act declaring the applicant mentally ill, which he refused to do. In August – September 2003 the applicant underwent in-patient treatment after he had been diagnosed, inter alia, with mosaic psychopathy. 17. In an answer to the applicant's lawyer, the prison administration confirmed that on 3 August 2001 the applicant had begun a hunger-strike and was given a medical examination the same day. On 15 August 2001 he cut his veins and set fire to himself and was treated immediately. On 23 August the doctor found his state of health relatively satisfactory. On 24 August a doctor found that the applicant's health was deteriorating and ordered force-feeding. He was force-fed a total of seven times, including on 28 August, 3, 5, 6, 7 and 10 September 2001. On 14 September 2001 the applicant was transferred to a detainee hospital and he ended his hunger-strike on 4 October 2001. The feeding took place on the basis of Article 33 of the Law on pre-trial detention (see paragraph 40 below) and a special instruction (see paragraph 41 below). That instruction had not been published but it appears that the applicant had known its contents since he mentioned it in his “hunger-strike diary”. The prison regulation was not published either but did not contain any provision regarding force-feeding. On 23 December 2003 a copy was exceptionally sent to the applicant. 18. According to documents submitted by the Government, the applicant was escorted to court hearings on 4 and 13 September 2001. The applicant noted in his “hunger-strike diary” that he had not been fed on 4 and 13 September 2001 since he had been brought to court on those dates. In response to the Court's request to submit all relevant medical documents concerning the applicant's force-feeding, including the results of any medical tests made, the Government submitted the following documents. Several types of medical investigations of the applicant's health took place after 11 September 2001, including blood and urine analyses, cardiac and other measurements. According to the register of visits by the duty doctor, the applicant's health was satisfactory during most of the period 1 – 21 August 2001. On 23 August 2001 the duty doctor found that the applicant's health was “relatively satisfactory” but considered that he was not sufficiently fit to participate in criminal investigation actions, having complained of general weakness and dizziness. On 24 August 2001 the duty doctor noted “Force-feeding was administered in accordance with the instruction (milk 800ml, sugar 50gr)”. Similar remarks were made on 28 August 2001, 3, 5, 6, 7 and 10 September 2001. On a number of these dates, the duty doctor noted that the applicant's health had been “relatively satisfactory”, while on 5 September 2001 it was “satisfactory”. No indication of the nature of the food administered was noted for the dates 5-7 September 2001. (b) Court proceedings regarding the applicant's force-feeding 19. In October 2001 the applicant lodged a complaint about the force-feeding and about the pain and humiliation caused by that process. He described the process as follows: he was always handcuffed, even though he never physically resisted force-feeding but simply refused to take food as a form of protest. The prison staff forced him to open his mouth by pulling his hair, gripping his neck and stepping on his feet until he could no longer bear the pain and opened his mouth. His mouth was then fixed in an open position by means of a metal mouth-widener. His tongue was pulled out of his mouth with a pair of metal tongs which he claims left it numb and bleeding each time. A hard tube was inserted as far as his stomach through which liquidised food passed into his stomach provoking, on some occasions, sharp pain. When the metal holder was removed from his mouth, he bled, he could not feel his tongue and was unable to speak. The instruments used for his force-feeding were not fitted with single-use, soft protection layers to prevent pain and infection. 20. According to the witness statement made in court by C.S., a nurse who personally witnessed the applicant's force-feeding, the applicant had not always resisted force-feeding and no handcuffing had been necessary on such occasions, but it was a mandatory procedure, which she considered to be painful, but necessary to save lives. B.A., a generalist who personally force-fed the applicant, declared in court that occasionally the food introduced “did not correspond to the instruction”. 21. V.B., a detainee in the same remand centre, gave evidence in court that he had seen blood on the applicant and on other detainees after they had been force-fed. The applicant requested to be fed milk or to be given vitamins through an intra-venous drip. He also submitted copies of decisions to place him in a solitary cell for periods of 10 days for hunger-strikes on 22 April and 15 October 1994, 19 and 28 July, 21 August, 31 October, 24 November and 4 December 1995. The latter sanction mentioned that the applicant “categorically continued to refuse to take food”. 22. On 4 November 2001 the Centru District Court refused to examine the complaint because it did not comply with procedural requirements. On 18 February 2002 that court again refused to examine his complaint on the same ground. On 25 April 2002 the Chişinău Regional Court quashed that decision and ordered a re-hearing, finding that the applicant, as a detainee, could not fully observe the formalities and that the specific nature of his complaint warranted an examination of his case on the merits. 23. On 7 November 2002 the Centru District Court rejected his claim as unfounded. It focused on the lawfulness of force-feeding and qualified his refusal to eat as a violation of detention rules. On 30 April 2003 the Chişinău Regional Court upheld that judgment. 24. On 19 April 2003 the Supreme Court of Justice quashed the previous judgments and ordered a full re-hearing. The court noted that the lower courts had not established clearly whether medical necessity had been the basis for the force-feeding of the applicant. 25. On 9 October 2003 Article 33 of the Law on Remand (which had provided for the force-feeding of detainees on hunger-strike) was amended to expressly prohibit the force-feeding of detainees. 26. On 15 February 2005 the Centru District Court rejected his claims as unfounded. It found that the law (applicable at the time), which provided for the force-feeding of detainees who refused to eat, was not contrary to national or international human rights standards, aiming as it did at protecting the lives of such detainees. The applicant's force-feeding was based on medical necessity as established by the medical personnel and his handcuffing and other restrictive measures were necessary to protect him from danger to his health and life. The court found that in view of his resistance to force-feeding it was necessary to apply to him “special means, including handcuffs” and that it did not amount to inhuman or degrading treatment. The court did not deal with the witness statements of C.S., B.A. or V.B. (see paragraphs 20 and 21 above). 27. On 26 April 2005 the Chişinău Court of Appeal upheld that judgment, essentially repeating the reasons of the Centru District Court. The court noted that the witnesses heard by the lower court had denied having tortured the applicant and that there was no evidence to support his claim. 28. The applicant appealed to the Supreme Court of Justice, relying, inter alia, on evidence of damage to his health as a result of force-feeding such as a broken tooth and an abdominal infection. He also relied on his inability to pay and mentioned his second-degree invalidity. The court refused to examine his appeal because the applicant had not paid court fees of 45 Moldovan lei (MDL) (the equivalent of 3 euros (EUR) at the time). He requested the court to waive those fees because he had no sources of income and could not afford to pay them. The court responded by a letter of 13 June 2005, explaining that his appeal: “does not correspond to the provisions of Articles 436, 437 of the Civil Procedure Code... According to Article 438 § 2 if the appeal does not correspond to the provisions of Article 437 or if the court fee has not been paid, the court returns it within 5 days under the signature of the president or the vice-president of the court. For these reasons we return your appeal for elimination of shortcomings. ...” 3. Access to court 29. The applicant's appeal in cassation lodged with the Supreme Court of Justice in respect of his force-feeding was not examined by that court for failure to pay the court fees (see paragraph 28 above). 30. The applicant had won court proceedings in 2003 and had received MDL 1,800. By a judgment of 1 July 2005 he was awarded MDL 5,000. However, this decision was appealed and the applicant did not receive any of that award in 2005. The applicant paid MDL 1,000 for the assistance of a lawyer during his detention. He was also compensated for lost mail by the postal authorities of France and the United Kingdom (EUR 55). 31. In several letters to the domestic authorities he claimed that the court fees and his other expenses had been paid by his relatives or friends. In a letter of 25 September 2003 he asked the prison administration to receive the compensation from the postal authorities and to transfer it to his lawyer. 32. The applicant initiated court proceedings requesting a court order to oblige the Government to provide him with the financial means for initiating various court proceedings. On 18 June 2004 the Supreme Court of Justice dismissed this complaint for failure to follow the extra-judicial dispute settlement procedure before initiating the proceedings. 4. Censorship of correspondence 33. The applicant further submitted copies of several letters, including from the Parliament (e.g., letter of 10 October 2002), the Ministry of Justice (11 October 2001), the Constitutional Court (18 September 2002), an Ombudsperson (23 August 2001), a psychiatric hospital (16 April 2002) as well as from law-enforcement agencies such as the prosecutor's office (11 July 2002) and non-governmental organisations such as “Amnesty International” (28 July 2003) and “Lawyers for Human Rights” (10 February 2003). Most of these letters bear prison stamps indicating the entry number and date. Occasionally, a handwritten instruction is given: “to be handed [to the applicant]” and/or by a note with his name and his cell number (including cell nos. 11, 13, 15, 20 and 72). Other letters bear the stamp only on the envelope. Some of the letters were addressed to the prison administration and the applicant, but all of the letters mentioned above were addressed to the applicant only. 5. Meetings with the applicant's relatives 34. The applicant submitted that except for a first visit by his family at the beginning of his detention, he communicated with them through a glass partition using an internal telephone. Such visits were limited to about two hours a month and no privacy was possible since five cabins for such visits were placed next to each other. All physical contact was excluded. Convicted persons were allowed much longer visiting times in separate meeting rooms without a glass partition. The applicant did not have such privileges because, although convicted of some offences, he was still on remand on other charges. He further stated that he had been denied visits by his family for long periods of time (up to a year). 35. The applicant requested better conditions for visits. On 21 August 2003 he asked for permission to have longer visits (see the preceding paragraph) from his girlfriend and his sister and noted that his conviction had become final on 28 May 2003. This request was refused on the basis of the “Statute of the remand centre”. 36. He initiated court proceedings against the administration of the remand centre requesting the right to have better visiting conditions, notably to be able to meet his visitors in a separate room for a longer time and without the glass partition. The administration submitted that such visits were prohibited by the prison rules, which aimed at protecting the safety and order of the remand centre. On 25 December 2003 the Court of Appeal rejected the applicant's claim. 37. On appeal he added a request for more regular visits and invoked the fact that he was both a convict and a detainee on remand. He stressed the long period of time during which he had not had any physical contact with relatives and described how he missed such contact, given also that he could not contact them by telephone. The applicant insisted that he had obtained on numerous occasions the agreement of the judge in charge of his case for meetings with relatives, but that the prison administration allowed meetings only in the glass cabin. He noted that occasionally the internal telephone in the glass cabin had not worked and that he had had to shout to be heard by his relatives, which was an embarrassment since four other families had had to do the same. The applicant invoked Article 8 of the Convention. 38. The Supreme Court of Justice, in its final judgment of 21 April 2004, refused to examine the request for more regular visits as it had not been lodged with the first-instance court. It also rejected the main request for better visiting conditions, invoking the security of the detainees as the justification for the glass partition. B. Relevant non-Convention material 1. Relevant domestic law and practice 39. The relevant provisions of the Code of Civil Procedure read as follows: Article 85 Waiver of court fees (1) The following are exempted from payment of court fees in civil proceedings: (a) Plaintiffs in actions: ... - regarding compensation for damage sustained as a result of bodily harm or other harm to health or as a result of death; - regarding compensation for damage arising out of a crime; ... (4) Depending on his or her financial situation, the person may be exempted by the judge (the court) from payment of court fees, either entirely or in part. Article 437 Content of the application to the court ... (2) Proof of payment of court fees is to be annexed to the application; the provisions of Articles 85 (4) and 86 do not apply.” 40. The relevant provisions of the Law on pre-trial detention of 27 June 1997, in force until 9 October 2003, read as follows: “Article 18 Correspondence - Lodging of complaints, requests and sending of letters ... “(2) Complaints, requests and letters from [persons detained awaiting trial] shall be subject to censorship by the prison authorities. Complaints, requests and letters addressed to the public prosecutor shall not be subjected to any control and shall be despatched to the addressee within twenty-four hours of their being filed. Article 19 Authorisation of meetings (1) The authorities of the remand centre shall authorise meetings of detainees with their relatives or other persons, with the written approval of the person or authority in charge of the case. Usually one meeting per month shall be authorised. The meeting may last from one to two hours. ... (3) Authorised meetings shall take place under the supervision of the remand centre authorities. In the event of a violation of the rules, the meeting shall end. Article 33 Manner of force-feeding (1) A detainee who has refused to take food shall be subjected to force-feeding on the basis of a written report by the doctor in charge of that detainee. (2) The following shall be force-fed: (a) persons whose life is in danger as a result of their persistent refusal to take food; ... (4) A person who refuses to take food shall be force-fed by medical personnel in the presence of at least two guards or other representatives of the authorities of the detention facility. Should it be necessary, such a person shall be restrained with handcuffs and held in the correct position by the guards. (5) The duration of the procedure of force-feeding of the detainee, the calorific value of the food and the name and function of the person who fed the detainee shall be indicated in the latter's medical record. (6) Should the health of a person refusing to take food improve, the force-feeding shall end. A detailed medical report shall be drawn up on the subject and the relevant entries made in the medical records. ...” 41. According to the Instruction regarding the detention in prisons of persons refusing to take food and the manner of their force-feeding, adopted in 1996 by the Ministry of Health and the Ministry of Justice on 15 August 1996 and coordinated with the Prosecutor General's Office, an “ill-founded” refusal to take food shall be considered a breach of the detention regime. A person found to be in breach shall be transferred, within 24 hours from the date of the actual refusal to take food, to a solitary confinement cell. A doctor shall determine the need to force-feed a detainee refusing to take food and the regime to be followed, in accordance with the detainee's somatic condition of the organism, and shall explain, before each feeding, the dangers associated with the refusal to eat. Should a detainee resist his force-feeding, he shall be handcuffed and held in the required position by two guards or other prison representatives who must always be present, and a mouth-widener shall be applied. Each instance of force-feeding shall be registered in the detainee's medical file, indicating the date, the composition of the food and its quantity. Should a detainee's condition improve, the force-feeding shall end and the reasons shall be given in the medical file. 42. On 24 October 2003 the Parliament adopted decision no. 415-XV, regarding the National Plan of Action in the Sphere of Human Rights for 2004-2008. The Plan includes a number of objectives for 2004-2008 aimed, inter alia, at improving the conditions of detention, including the reduction of overcrowding, improvement of medical treatment, involvement in work and reintegration of detainees, as well as the training of personnel. Regular reports are to be drawn up on the implementation of the Plan. On 31 December 2003 the Government adopted a decision on the Concept of reorganisation of the penitentiaries' system and the Plan of Action for 2004-2013 for the implementation of the Concept of reorganisation of the penitentiaries' system, both having the aim, inter alia, of improving the conditions of detention in penitentiaries. In addition, on 21 April 2004 the Government approved the creation of a Centre for technical and material assistance to the penitentiaries' system. 43. On an unspecified date the Ministry of Justice adopted its “Report on the implementing by the Ministry of Justice of Chapter 14 of the National Plan of Action in the sphere of human rights for 2004-2008, approved by the Parliament Decision no. 415-XV of 24 October 2003”. On 25 November 2005 the Parliamentary Commission for Human Rights adopted a report on the implementation of the National Plan of Action. Both those reports confirmed the insufficient funding of the prison system and the resulting failure to implement fully the action plan in respect of the remand centres in Moldova, including prison no. 3 in Chişinău, in particular concerning the provision of sufficient space, food and bedding. The first of these reports mentioned, inter alia, that “as long as the aims and actions in [the National Plan of Action] do not have the necessary financial support ... it will remain only a good attempt by the State to observe human rights, described in Parliament Decision no. 415-XV of 24 October 2003, the fate of which is non-implementation, or partial implementation.” On 28 December 2005 the Parliament adopted a decision no. 370-XVI “Concerning the results of the verification by the special parliamentary commission regarding the situation of persons detained pending trial in remand centre no. 13 of the Penitentiaries' Department whose cases are pending before the courts”. The decision found, inter alia, that “the activity of the Ministry of Justice in ensuring conditions of detention does not correspond to the requirements of the legislation in force.” 44. The relevant provisions of domestic law concerning the remedies available for complaints under Article 3 of the Convention have been set out in Ostrovar v. Moldova ((dec.), no. 35207/03, 22 March 2005) and Boicenco v. Moldova (no. 41088/05, §§ 68-71, 11 July 2006). 45. The relevant provisions of domestic law concerning detainees' correspondence, in addition to those mentioned in paragraph 40 above, have been set out in Meriakri v. Moldova ((striking out), no. 53487/99, §§ 17-24, 1 March 2005). In addition, Article 301 of the new Code of Criminal Procedure reads as follows: “(1) Operational-investigative measures involving limitations to the right of inviolability of person, home or correspondence, telephone and telegraph conversations and other forms of communication, as well as other measures provided for by law shall be carried out with the authorisation of the investigating judge. ...” 2. Reports of the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) 46. In its Report on its visit to Moldova on 10-21 June 2001, the CPT found (unofficial translation): “61. The delegation drew attention to the issue of contacts with the outside world for persons deprived of their liberty. A considerable number of persons complained of the ban on corresponding with their relatives and receiving visits. It appeared that contact by detainees with the outside world was left to the total discretion of the police officers and/or persons in charge of the institutions, with a very restrictive attitude being taken in this respect. Concerning the suspects of crimes the CPT accepts that, in the interest of the investigation, some restrictions on visits may indeed be imposed for certain persons. However, these restrictions should be strictly limited to the specific needs of the case and should be applied for as short a time as possible. In no circumstances may visits to a detainee by his family and friends be prohibited for long periods of time. If there is considered to be an ongoing risk of collusion, it is preferable to authorise visits under strict supervision; this approach should also cover correspondence with family and close friends. ... The CPT recommends that the Moldovan authorities review the legal regulations and existing practice in this field, in the light of the observations formulated above.” 47. In its report on the visit to Moldova on 20-30 September 2004, the CPT found (unofficial translation): “50. The CPT delegation again heard repeated complaints from persons charged with and convicted of administrative offences concerning the refusal of permission for them to receive visits or have contact with the outside world in EDPs. The CPT reiterates (see paragraph 61 of the report on the 2001 visit) that, where persons awaiting trial are concerned, if it is necessary in the interests of the investigation to place restrictions on visits for some of them, the restrictions should be strictly limited in time and applied for the shortest period possible. In no circumstances should visits to a detained person by family and friends be prohibited for a prolonged period. If there is thought to be an ongoing risk of collusion, it is better to allow visits under strict supervision. ... 55. The situation in the majority of penitentiaries visited, in view of the economic situation in the country, remained difficult and the delegation encountered a number of problems already identified during its visits in 1998 and 2001 in terms of physical conditions and detention regimes. Added to this is the problem of overcrowding, which remains serious. In fact, even though the penitentiaries visited were not operating at their full capacity – as is the case of prison no. 3 in which the number of detainees was appreciably smaller than during the last visit of the Committee – they continued to be extremely congested. In fact, the receiving capacity was still based on a very unsatisfactory 2 m2 per detainee; in practice, this was often even less. 73. Facilities for contact with the outside world left much to be desired. Although there was no restriction on parcels and letters, inmates were entitled only to brief visits totalling three hours every three months, which were in practice often reduced to one hour. What is more, visits took place under oppressive conditions in a room where prisoners were separated from visitors by a thick wire grille, with a guard stationed nearby at all times. 79. The follow-up visit to prison no.3 in Chişinău revealed an unsatisfactory situation. The progress noted was in fact minimal, limited to some running repairs. The ventilation system had been repaired primarily thanks to the financial support of civil society (especially NGOs), and the creation of places for daily recreation had been made possible only as a result of contributions by the detainees and their families. The repair, renovation and maintenance of cells are entirely the responsibility of detainees themselves and of their families, who also pay for the necessary materials. They must also obtain their own sheets and blankets, the institution being able to give them only used mattresses. In sum, the conditions in the great majority of cells in Blocks I-II and the transit cells continue to be very poor indeed. ... Finally, despite the drastic reduction in overcrowding, the rate of occupancy of cells is still very high, not to say intolerable. 83. Except in the Lipcani Re-education Colony for Minors, where the efforts made in this respect are to be highlighted, the quantity and quality of detainees' food everywhere is a source of grave concern. The delegation was inundated with complaints regarding the absence of meat and dairy products. The findings of the delegation, regarding both the stocks of food and the menus, confirm the credibility of these complaints. Its findings also confirmed that in certain places (in Prison no. 3, ...), the food served was repulsive and virtually inedible (for instance, insects and vermin were present). This is not surprising given the general state of the kitchens and their modest equipment. The Moldovan authorities have always claimed financial difficulties in ensuring the adequate feeding of detainees. However, the Committee insists that this is a fundamental requirement of life which must be ensured by the State to persons in its charge and that nothing can exonerate it from such responsibility. ...” 3. European Prison Rules 48. Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules (adopted by the Committee of Ministers on 11 January 2006 at the 952nd meeting of the Ministers' Deputies), insofar as relevant, reads as follows: “Contact with the outside world 24.1 Prisoners shall be allowed to communicate as often as possible by letter, telephone or other forms of communication with their families, other persons and representatives of outside organisations and to receive visits from these persons. 24.2 Communication and visits may be subject to restrictions and monitoring necessary for the requirements of continuing criminal investigations, maintenance of good order, safety and security, prevention of criminal offences and protection of victims of crime, but such restrictions, including specific restrictions ordered by a judicial authority, shall nevertheless allow an acceptable minimum level of contact. 24.3 National law shall specify national and international bodies and officials with whom communication by prisoners shall not be restricted. 24.4 The arrangements for visits shall be such as to allow prisoners to maintain and develop family relationships in as normal a manner as possible. 24.5 Prison authorities shall assist prisoners in maintaining adequate contact with the outside world and provide them with the appropriate welfare support to do so. ...” THE LAW 1. Complaints 49. The applicant complained of violations of his right guaranteed by Article 3 of the Convention. Article 3 reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 50. He also complained about a violation of his rights guaranteed by Article 6 of the Convention as a result of the courts' refusal to examine his complaint about force-feeding due to his failure to pay court fees. The relevant part of Article 6 reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” 51. The applicant complained of violations of his rights guaranteed by Article 8 of the Convention as a result of the censorship of his correspondence and the refusal to provide him with acceptable conditions for meeting with his visitors. Article 8 reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 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.” 52. The applicant finally complained under Article 10 of the Convention about the lack of access to the internal prison regulation. Article 10 reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 2. Scope of the case 53. The Court notes that in the operative part of its partial inadmissibility decision of 11 October 2005 regarding the present application it adjourned the examination of the applicant's complaints referred to above and of two additional complaints, namely regarding the fairness of the 2001 revision proceedings and the right to appear in person before civil courts. In fact, the Court found, in paragraph 5 of the decision, that those two complaints were inadmissible. They were not, accordingly, communicated to the Government. The Court observes that, notwithstanding the operative part of its decision of 11 October 2005, these two complaints were dealt with in that decision and that there is no further need to examine them here. I. ADMISSIBILITY OF THE COMPLAINTS 54. The applicant complained that the conditions of his detention in prison no. 3 amounted to inhuman and degrading treatment contrary to Article 3 of the Convention (see paragraphs 9-12 above). 55. The Government disagreed and relied on evidence to the contrary (see paragraph 13 above). They argued that the applicant had not exhausted available domestic remedies in respect of the complaints under Article 3 of the Convention. They relied, in particular, on the case of Drugalev v. The Ministry of Internal Affairs and the Ministry of Finance case (referred to in Boicenco, cited above, § 68). 56. The Court recalls that an individual is not required to try more than one avenue of redress when there are several available (see, for example, Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, p. 12, § 23). 57. In so far as the remedy of a civil action to request an immediate end to the alleged violation is concerned, the Court has already found that the Drugalev case relied on by the Government did not constitute sufficient evidence that such a remedy was effective (Holomiov v. Moldova, no. 30649/05, § 106, 7 November 2006). The applicant's own complaint made to the courts regarding his force-feeding, relying expressly on Article 3 of the Convention, was examined over a period of almost 4 years (see paragraphs 19-28 above), which confirms once more the lack of any timely impact of civil actions in trying to obtain an immediate cessation of an alleged violation of Article 3 of the Convention. 58. Moreover, the applicant had expressly complained about his conditions of detention to the Penitentiaries' Department and the administration of the remand centre (see paragraph 11 above). The Government have not submitted that these were not effective remedies which the applicant was not required to exhaust. In such circumstances, this complaint cannot be rejected for failure to exhaust available domestic remedies. 59. The Court considers that the applicants' complaints under Articles 3, 6, 8 and 10 of the Convention raise questions of fact and law which are sufficiently serious that their determination should depend on an examination of their merits. No grounds for declaring them inadmissible have been established. The Court therefore declares these complaints admissible. In accordance with its decision to apply Article 29 § 3 of the Convention (see paragraph 4 above), the Court will immediately consider the merits of the complaints. II. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION A. Conditions of detention 60. The applicant complained that the conditions of his detention in prison no. 3 amounted to inhuman and degrading treatment contrary to Article 3 of the Convention (see paragraphs 9-12 above). 61. The Government considered that the applicant had been detained in acceptable conditions (see paragraph 13 above). Any suffering which he may have sustained did not exceed the level normally associated with detention. 62. The Court recalls 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, for example, Labita v. Italy [GC], no 26772/95, § 119, ECHR 2000-IV). It has also found that the distinction between “torture” and “inhuman or degrading treatment” was intended to “attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering” (Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, § 167). The Court refers to further principles established in its case-law in respect of conditions of detention (see Sarban, cited above, §§ 75-77, 4 October 2005) and of force-feeding (see Nevmerzhitsky v. Ukraine, no. 54825/00, §§ 79-81, ECHR 2005‑II (extracts)). 63. To fall within the scope of Article 3, ill-treatment must attain a minimum level of severity. 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 (see, for example, Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, § 162). 64. The State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured by, among other things, providing him with the requisite medical assistance (see, Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000‑XI). When assessing conditions of detention, account has to be taken of the cumulative effects of those conditions and the duration of the detention (see Ostrovar v. Moldova, no. 35207/03, § 80, 13 September 2005). 65. In the present case the parties disagreed as to the number of persons detained in the cell together with the applicant, the amount of personal space left to the applicant and even the cell numbers in which he had been detained. The Court notes that the parties agreed that the applicant had been detained in cell no. 17a (see paragraphs 9 and 13 above). According to the applicant, he had been detained there with ten other persons. This was not disputed by the Government, which merely noted that that cell measured 12m2 but gave no details as to the number of detainees kept in it. The Court concludes that each detainee in that cell had just over 1m2 of space, which is manifestly below an acceptable minimum. 66. While the Government disputed that the applicant had been detained in cell no. 11, the Court notes that some of the letters addressed to him were directed by the prison authorities to the applicant in cell no. 11 (see paragraph 33 above). The applicant also noted his transfer to cell no. 11 in his “hunger-strike diary” (see paragraph 12 above). The Court finds that the materials in the file provide sufficient indication that the applicant was detained in cell no. 11. The Government have not given any details regarding the size of that cell or the number of detainees which it could accommodate. The Court will, accordingly, assume that the applicant's account is correct and that there were more detainees than beds in cell no. 11 on 2 August 2001 when he was transferred there following the start of his hunger-strike. 67. The Court notes that the above findings correspond to those made by the CPT in its report on its visit to Moldova in 2004: despite a drastic reduction of the number of detainees in prison no. 3, each detainee still had less than 2m2 of space (see paragraph 47 above). It further notes that the domestic authorities also conceded that that prison had occasionally been overpopulated (see paragraph 11 above). The Court doubts that the applicant could have had 5m2 of space as suggested by the Government throughout his five-year period of detention while other detainees had less than half that space. It notes that even the video submitted by the Government shows a capacity of four places in the cell in which the applicant was being detained at the moment of filming (see paragraph 13 above). The Court has already found that overpopulation in itself raises an issue under Article 3 of the Convention (see Kalashnikov v. Russia, no. 47095/99, § 97, ECHR 2002-VI and Ostrovar v. Moldova, no. 35207/03, § 84, 13 September 2005), especially when it lasts for long periods as in the case of the applicant, who was detained on remand for over five years in prison no. 3. 68. The Court also notes that the Penitentiaries' Department confirmed, in its letter of 29 December 2003, the presence of parasitic insects in prison no. 3 (see paragraph 11 above). The Government have not commented on this, nor on the applicant's complaint made in his letters of 17 February and 26 May 2002 regarding the presence of damp, the lack of beds, the presence of rodents and the lack of access to either daylight or electricity for up to 18 hours a day during the applicant's solitary detention for 10 days (see paragraph 12 above). The general statement that all cells had windows and ventilation does not suffice to rebut the specific allegations mentioned above. 69. The applicant's complaint regarding the quantity and quality of food served is consonant with the findings of the domestic authorities and the CPT (see paragraphs 43 and 47 above). In Ostrovar v. Moldova (cited above, § 88), the Court made a similar finding in respect of an applicant detained in the same prison partly during the same period as the present applicant. While noting the video film and other evidence of improvements in the present-day detention conditions, which are encouraging, the Court observes that the complaint refers to the period 2001 onwards. 70. In light of the above, the Court does not consider it necessary to deal with the other allegations made by the applicant since it finds that the conditions of his detention had been inhuman, in particular as a result of extreme overcrowding, unsanitary conditions and the low quantity and quality of food, as well as the prolonged period during which the applicant had been detained in such conditions. 71. There has, accordingly, been a violation of Article 3 of the Convention on account of the applicant's conditions of detention. B. Force-feeding 1. Arguments of the parties 72. The applicant complained that he was force-fed in the absence of any medical necessity for this, and about the manner in which the force-feeding had been carried out. He submitted that the force-feeding had had a punitive character and had been primarily aimed at obliging him to stop his hunger-strike protest by subjecting him to severe pain and degrading treatment (see paragraphs 14-18 above). Moreover, the manner in which it had been carried out caused him unnecessary pain and humiliation and did not offer sufficient protection to his health. As a result, he had suffered a broken tooth and had contracted an abdominal infection. 73. The Government disagreed. According to them, the applicant's force-feeding was based on a clearly established medical need, was ordered and carried out by qualified medical personnel and was authorised by law. The applicant's refusal to eat for 24 days had exposed his life to a real risk and it was the duty of the doctors to protect him. According to the Government, a healthy person's life was in danger after 30 days of starvation, while more vulnerable persons such as the applicant would be exposed to risk in a much shorter period. 74. In respect of the manner of feeding the applicant by force, in particular the use of handcuffs and other equipment, the Government noted that it had been made strictly necessary by the applicant's resistance and had been in accordance with the law in force at the relevant time and with various recommendations of international organisations. Moreover, the applicant's suicidal behaviour and his being diagnosed with “mosaic schizophrenia” (see paragraph 7 above) were additional factors making the restraints necessary. Finally, the applicant's abdominal infection had nothing to do with the force-feeding. 75. The applicant relied on the statement made in court by the prison psychiatrist who had examined him shortly after the incident of 14 August 2001 (see paragraph 16 above) and who had found him to be of sound mind. 2. The Court's assessment 76. The Court notes that in its previous case-law the Commission held that the “forced-feeding of a person does involve degrading elements which in certain circumstances may be regarded as prohibited by Article 3 of the Convention. When, however, ..., a detained person maintains a hunger-strike this may inevitably lead to a conflict between an individual's right to physical integrity and the High Contracting Party's positive obligation under Article 2 of the Convention – a conflict which is not solved by the Convention itself” (see X v. Germany (1984) 7 EHRR 152). 77. The Court reiterates 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 (see Jalloh v. Germany [GC], no. 54810/00, § 69, ECHR 2006‑...). The same can be said about force-feeding that is aimed at saving the life of a particular detainee who consciously refuses to take food. The Convention organs must nevertheless satisfy themselves that the medical necessity has been convincingly shown to exist (see Herczegfalvy v. Austria, judgment of 24 September 1992, Series A no. 244, p. 26, § 83). Furthermore, the Court must ascertain that the procedural guarantees for the decision to force-feed are complied with. Moreover, the manner in which the applicant is subjected to force-feeding during the hunger-strike must not trespass the threshold of the minimum level of severity envisaged by the Court's case law under Article 3 of the Convention (Nevmerzhitsky, cited above, § 94). (a) As to the existence of a medical necessity to force-feed the applicant 78. The Court notes that the applicant went on hunger-strike on many occasions, including during the second part of 1995, when he had been on hunger-strike at least once a month (see paragraph 21 above). It was not submitted that on any of the previous hunger-strikes he had been force-fed, nor that his life and health had been in danger. Moreover, the two 10-day isolation ward periods applied to him on 24 November and 4 December 1995 (when he was also detained in prison no. 3) reflect the administration's position that not only was the applicant's life not in danger as a result of his hunger-strike but that he had to be held in harsher than normal conditions for a total of 20 days as a sanction (see paragraph 21 above). 79. The sanctions applied to the applicant in 1994-1995 confirm that the hunger-strikes were considered by the prison authorities to be violations of the rules and acts of disobedience towards the prison administration which required a serious response, including the solitary confinement of the applicant. The domestic courts also appear to have taken a similar view of the applicant's case (see paragraph 23 above) and the instruction on the basis of which the applicant had been force-fed had express provisions to that effect (see paragraph 41 above). Such an attitude is consonant with the applicant's claim that his force-feeding was not aimed at protecting his life but rather at discouraging him from continuing his protest. 80. The Court finds it strange that the applicant's condition was considered so serious as to require force-feeding on 3, 5, 6, 7 and 10 September 2001 while at the same time he was considered sufficiently fit to attend court hearings on 4 and 13 September 2001 (see paragraph 18 above). It also observes that, despite his alleged weakness as a result of his prolonged refusal to take food for 24 days, interrupted by seven force-feedings, and despite his abdominal infection, the applicant's condition was considered to be good enough for him to be allowed to continue his hunger-strike for another 24 days without any apparent need for force-feeding (see paragraph 17 above). 81. The Court notes the domestic courts' finding that there was sufficient evidence of a medical necessity to force-feed the applicant in order to save his life (see paragraphs 26 and 27 above). However, having examined the materials submitted by the Government at the Court's request, the Court does not see any evidence of a medical test or other investigation on the basis of which the duty doctor had decided to initiate the force-feeding (see paragraph 18 above). On the other hand, extensive tests were carried out after the end of the force-feeding. Indeed, the only reference attesting to the start of the force-feeding was a simple note of 24 August 2001 indicating that force feeding had taken place and the type and quantity of food that had been administered. No reasons were given for the decision to start the force-feeding procedure. Moreover, the applicant's health was each time assessed as “relatively satisfactory” or even “satisfactory” by the duty doctor (see paragraph 18 above), which is hardly compatible with a life-threatening condition requiring force-feeding. 82. The Court further observes that in accordance with Article 33(1) of the Law on pre-trial detention (see paragraph 40 above), as well as the instruction in accordance with which the applicant had been force-fed (see paragraph 41 above), a doctor should give reasons for force-feeding. No such reasons were given in the applicant's case. It follows that this basic procedural safeguard was not respected in the applicant's case. 83. In view of the lack of medical evidence that the applicant's life or health were in serious danger, it cannot be said that the authorities acted in the applicant's best interests in subjecting him to force-feeding, which of itself raises an issue under Article 3 of the Convention (see Nevmerzhitsky, cited above, § 96). Moreover, in the light of the prison authorities' view that hunger-strikes were violations of prison order (see paragraphs 78 and 79 above), the Court finds that there are sufficient grounds to accept the applicant's claim that his force-feeding was in fact aimed at discouraging him from continuing his protest. (b) As to the manner of force-feeding the applicant 84. The applicant complained, moreover, about the excessively painful manner of his force-feeding, aimed at discouraging him from continuing his protest and at serving as a warning to others about the harsh treatment they could expect should they follow his example. 85. The Court is struck by the manner of the force-feeding in the present case (see paragraphs 19-21 above), including the unchallenged facts of his mandatory handcuffing regardless of any resistance, the causing of severe pain in order to force him to open his mouth and the pulling of his tongue outside of his mouth with metal tongs. The Court will assume that statement to be true, given also the unchallenged statement in court made by V.B. (see paragraph 21 above) about seeing blood on the applicant's clothes after his force-feeding. 86. In addition, a number of procedural guarantees prescribed by domestic law (see paragraphs 40 and 41 above) such as clarifying the reasons for starting and ending the force-feeding or noting the composition and quantity of food administered were not observed or only partly observed (see paragraph 18 above). 87. The Court finally notes that the applicant had requested to be given intra-venous drips instead of being force-fed and that he offered his family's assistance in bringing him the necessary drips (see paragraph 21 above). He appears not to have received a reply to this request and neither the domestic courts nor the Government commented on this. It follows that there was a less intrusive alternative to force-feeding which was not even considered, despite the applicant's express request. 88. Even assuming that neither his broken tooth nor his abdominal infection had anything to do with the applicant's force-feeding, the Court concludes that the manner in which it was carried out had been unnecessarily painful and humiliating. (c) Conclusion 89. In light of the above, the Court concludes that the applicant's repeated force-feeding, not prompted by valid medical reasons but rather with the aim of forcing the applicant to stop his protest, and performed in a manner which unnecessarily exposed him to great physical pain and humiliation, can only be considered as torture (see Nevmerzhitsky, cited above, § 98). There has, accordingly, been a violation of Article 3 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 90. The applicant complained that the refusal of the Supreme Court of Justice to examine his complaint regarding the force-feeding amounted to a violation of his right of access to court, guaranteed by Article 6 § 1 of the Convention. 91. The Government disagreed. They noted that the applicant had to pay MDL 45 (approximately EUR 3) in court fees. The applicant had sufficient resources to pay his lawyer MDL 1,000 and he had won a number of court actions, receiving over MDL 6,000 in damages (see paragraph 30 above). In addition, the applicant was allowed to work and to obtain revenue. Any money belonging to a prisoner was deposited on his personal account in the prison. 92. The applicant argued that he had spent all the money received on medication of a type that was not available in prison and on the litigation costs of his numerous court actions. He had not received the award made in 2005 (MDL 5,000) since the decision had been appealed and the case was still pending when his complaint regarding the force-feeding was before the Supreme Court of Justice. He was a second-degree invalid who spent a lot of time on treatment and could thus not hope to find work in prison. His invalidity pension was suspended during his detention and he had no revenue during his five-year period of detention. 93. The Court refers to the general principles established in its case-law concerning access to a tribunal within the meaning of Article 6 § 1 of the Convention and, more specifically, the requirement to pay court fees (see, among many authorities, Kreuz v. Poland, no. 28249/95, §§ 52-57, ECHR 2001‑VI and the further references therein). 94. The Court notes that the relevant proceedings concerned the applicant's claim for damages. Accordingly, Article 6 § 1 applies under its civil head (see Kreuz, cited above, § 35). 95. In the present case, the Court notes that the applicant's complaint concerned the alleged damage to his health caused by the actions of the authorities. In accordance with Article 85 (1) of the Code of Civil Procedure (“the CCP”, see paragraph 39 above), he should have been exempted from paying court fees due to the nature of his claim, regardless of his ability to pay. The Court notes that the applicant did not expressly rely on this ground for exempting him from the payment of court fees. However, it also notes that the text of Article 85 (1) of the CCP does not subject its application to a requirement of a formal request by the interested party. The Court considers that the domestic court should have examined his request for a court fee waiver also in the light of the nature of his complaint (as did the Chişinău Regional Court, see paragraph 22 above), given its express reference to Article 437 of the Code of Civil Procedure (which, in turn, refers to Article 85) in refusing to examine his case and given the seriousness of complaints made, referring as they did to alleged torture. 96. In view of the above, the Court considers that the applicant was denied access to a tribunal. There has, accordingly, been a violation of Article 6 § 1 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION A. Alleged censorship of correspondence 97. The applicant complained under Article 8 of the Convention about the alleged censorship of his correspondence. 98. The Government submitted that no censorship of the applicant's correspondence had taken place since this was against the law. When the law exceptionally allowed censorship, it required the prior authorisation of a court (see paragraph 45 above). Only letters addressed to the applicant and the prison administration were opened and read by the administration. None of the 580 letters addressed personally to the applicant was read. In support of this submission the Government submitted a copy of several pages of the incoming mail register according to which a number of letters addressed to the applicant had been marked “sealed”. In addition, the applicant twice signed forms confirming that on those two occasions he had received the letters in sealed envelopes. In addition, the Government suggested that some of the letters submitted by the applicant bearing a stamp and inscriptions could be fakes. 99. Under its case-law, the Court is required to verify whether there has been an interference with the applicant's rights under Article 8, whether such interference was “prescribed by law”, pursued a legitimate aim under the second paragraph of that Article and was “necessary in a democratic society” (see, among many authorities, Messina v. Italy (no. 2), no. 25498/94, § 63, ECHR 2000‑X; Ostrovar v. Moldova, cited above, § 97). It will deal with each of these criteria in turn. 1. Whether there was an interference with the applicant's right to respect for his correspondence 100. The Court notes that a number of letters sent to the applicant in 2001-2003 from law-enforcement agencies, human rights organisations and even a psychiatric hospital bear either a prison stamp or other inscription (see paragraph 33 above). It also notes that all the letters mentioned above were addressed to the applicant alone. As for the alleged falsification of the letters, the Court notes that the Government did not identify which letters they suspected had been falsified and did not submit any evidence in this respect. There is therefore no reason for the Court to doubt the authenticity of the letters. 101. The Court concludes that, contrary to the Government's submissions, there is clear evidence in the file that at least some of the applicant's correspondence had been opened by the prison administration. There has, accordingly, been an interference with the applicant's right to respect for his correspondence. 2. Whether the interference was “prescribed by law” 102. The Court recalls that the expression “in accordance with the law” not only necessitates compliance with domestic law, but also relates to the quality of that law (Halford v. the United Kingdom judgment of 25 June 1997, Reports of Judgments and Decisions 1997-III, p. 1017, § 49). Domestic law must indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities so as to ensure to individuals the minimum degree of protection to which they are entitled under the rule of law in a democratic society (Domenichini v. Italy judgment of 15 November 1996, Reports 1996-V, p. 1800, § 33). 103. The Court notes that the applicant was not given access to the prison rules governing, inter alia, the manner of processing the applicant's correspondence until December 2003 (see paragraph 17 above). While both the old and the new legislation provided for the possibility to open detainees' correspondence under certain conditions, the Court observes that the procedure established by law had not been followed in the applicant's case. In particular, the Government have not submitted any evidence that a court had authorised the opening of any of the letters referred to above, which was an essential condition for the opening of correspondence (see paragraphs 45 and 98 above). 104. It follows that the opening of the applicant's correspondence without the authorisation of a court was in breach of domestic law and was therefore not “prescribed by law” within the meaning of Article 8 of the Convention. In view of this finding, the Court does not consider it necessary to verify whether the interference was “necessary in a democratic society”. There has, accordingly, been a violation of Article 8 of the Convention in respect of the censorship of the applicant's correspondence. B. The alleged failure to ensure acceptable conditions for meeting with the applicant's family 105. The applicant also complained that his right to meet his relatives and girlfriend had been severely restricted. In particular, he was not allowed to have any physical contact with them except on a few occasions and had to communicate with them through a glass partition. The fact that he had to sit in one of five glass cabins situated next to each other meant that privacy was impossible. 106. The Government submitted that the applicant did not have any family relationship with his wife and child since in 2002 he had applied for a divorce and custody of his son. All his requests to meet with his girlfriend and her child had been allowed, including meetings with them in a separate room and for long periods of time, as proved by the approvals of such meetings for various dates in 2004. In addition, the glass partition in the glass cabins designed for “short visits” was necessary for security reasons and did not prevent free communication between them. 107. The Court reiterates that any detention which is lawful for the purposes of Article 5 of the Convention entails by its nature a limitation on private and family life and that some measure of control over prisoners' contacts with the outside world is called for and is not in itself incompatible with the Convention (see Van der Ven v. the Netherlands, no. 50901/99, § 68, ECHR 2003‑II). However, prisoners “continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty” (Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, § 69, ECHR 2005‑...). It is, moreover, an essential part of a prisoner's right to respect for family life that the prison authorities assist him in maintaining contact with his close family (see Messina v. Italy (no. 2), cited above, § 61). Subject to necessary security measures, detainees should be allowed to meet not only their relatives but also other persons wishing to visit them (see paragraph 48 above). The Court finally reiterates that it is “an essential part of both private life and the rehabilitation of prisoners that their contact with the outside world be maintained as far as practicable, in order to facilitate their reintegration in society on release, and this is effected, for example, by providing visiting facilities for the prisoners' friends and by allowing correspondence with them and others” (X. v. the United Kingdom, no. 9054/80, D.R. 30 p. 113). It follows that the visits by the applicant's girlfriend and her daughter, as well as his sister, fell within the protection of Article 8 of the Convention. 108. The Court will verify compliance of the measures taken in respect of the applicant on the basis of its usual test (see paragraph 99 above). 1. Whether there was an interference with the applicant's rights under Article 8 of the Convention 109. While the Government have not submitted any evidence of their claim that meetings in a separate room had been allowed in 2003, the applicant for his part submitted one example as proof that a meeting with his girlfriend and his sister had been denied without reasons (see paragraph 35 above). 110. Moreover, during the proceedings which the applicant initiated before the domestic courts, none of the authorities involved submitted that the applicant had been allowed to meet with his visitors in a separate room. Rather, they contended that such meetings were not allowed under the prison rules and that the glass partition was necessary for security reasons, an argument accepted by the courts (see paragraph 36 above). 111. The Court concludes that, at least during 2003, the applicant was denied meetings with his sister and girlfriend in a separate room and they had to meet in one of the glass cabins and he was separated from his visitors by a glass partition. There was, accordingly, an interference with the applicant's right to meet his visitors in conditions of privacy. 2. Whether the interference was “prescribed by law” 112. The Court notes that the Government have not referred to any legal act as the basis for installing a glass partition in the cabin for meetings between detainees and their visitors. The wording which could be considered as authorising such a measure, found in Article 19 (3) of the Law on detention on remand (see paragraph 40 above), reads: “[a]uthorised meetings shall take place under the control of the remand centre administration”. The Court considers that that wording is very general and no further precision is provided by the prison rules, which simply repeat that wording. 113. No other official act appears to contain details of the meaning of the phrase, which would suggest that the administration of each remand centre was given a very wide discretion as to the specific manner of implementing the control over meetings. In rejecting the applicant's complaints, the prison administration relied on paragraph 53 (4) of the Statute of prison no. 13, a document which has not been submitted to the Court and was never mentioned by the domestic courts. In view of the above and given that the prison rules had not been published (see paragraph 17 above), there is cause to consider that the Statute of prison no. 13 (on the understanding that it is not the same document as the prison rules) was also not a publicly available document. 114. While the facts above strongly suggest that the interference with the applicant's rights had not been “provided by law” within the meaning of Article 8 § 2 of the Convention, the Court considers that it does not have to take a definitive view on this issue in view of its findings below. 3. Whether the interference pursued a legitimate aim 115. The Court considers that the limitations on the manner of maintaining contacts with the outside world, including the installation of physical barriers such as a glass partition, may pursue the legitimate aim of protecting public safety and preventing disorder and crime, within the meaning of the second paragraph of Article 8 of the Convention. 4. Whether the interference was “necessary in a democratic society” 116. The Court notes that the Government relied on security reasons as justification for the need to separate the applicant from his visitors by means of a glass partition. This was also the reason for the domestic courts' rejection of the applicant's complaint. 117. The Court observes that the domestic courts did not make any attempt to ascertain the nature of the security issues specifically in the applicant's case. The courts confined themselves to a perceived general need to preserve the safety of detainees and visitors. The Court notes that the applicant was accused of fraud (see paragraph 7 above). In the absence of any risk of collusion, re-offending or escaping, it can reasonably be considered that allowing the applicant to meet with his visitors would not have created a security risk. This conclusion is reinforced by the fact that the applicant was allowed such visits on a number of occasions in 2004 (see paragraph 106 above) and it has not been claimed that the applicant's personality or other relevant circumstances obtaining in 2003 had drastically changed in 2004. 118. While there may well be cases where restrictions on a detainee's contacts with the outside world could be necessary, this was not so in the present case. The authorities did not adduce evidence of any threat posed by the applicant and subsequently confirmed that there was no such threat by allowing him to meet with his visitors in private in 2004. The fact that the courts permitted such meetings (see paragraph 37 above) also confirms this conclusion. On the other hand, the effect of the long period of time (at least one year in 2003) during which the applicant had not been able to have any physical contact with his visitors, the fact that he could only maintain a relationship with them by correspondence and by meeting with them in prison (see paragraph 37 above) and the physical barriers to free discussion created by the glass cabin cannot be ignored (see the findings of the CPT, paragraph 47 above, and the applicant's unchallenged claims regarding the lack of privacy in the five cabins situated next to each other, referred to in paragraph 105 above). In the absence of any demonstrated need for such far-reaching restrictions on the applicant's rights, the domestic authorities failed to strike a fair balance between the aims relied on and the applicant's rights under Article 8. 119. There has, accordingly, been a violation of Article 8 of the Convention in this respect also. V. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 120. The applicant complained about the failure of the prison administration to give him access to the prison rules, a document which had not been published even though it concerned a number of his rights. 121. The Government disagreed and argued that Article 10 was not applicable. In any event, the applicant was sent a copy of the prison rules in December 2003 and was thus not a victim of a violation of his rights. 122. The Court considers that in the present case it does not have to decide on whether Article 10 could be interpreted as requiring the authorities to ensure the applicant's access to information such as the prison rules. To the extent that such information was vital for protecting the applicant's rights such as those guaranteed by Articles 3 and 8 of the Convention, the authorities' failure to give the applicant a copy of the prison rules has been taken into account when dealing with his complaints under those Articles. Accordingly, the Court does not consider it necessary to examine this complaint separately. VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 123. 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 124. The applicant claimed EUR 81,800 for non-pecuniary damage as a result of the alleged violations of his rights, including EUR 50,000 for the violation of Article 3, EUR 24,800 for the violation of Article 6 and EUR 7,000 for the violation of Article 8 of the Convention. He relied on the Court's case-law on the above-mentioned Articles. 125. The Government disagreed and argued that the applicant had failed to prove a violation of any Article of the Convention and to submit any evidence of non-pecuniary damage. They considered irrelevant the case-law relied on by the applicant since those cases had dealt with different situations and the awards made by the Court in those cases reflected the finding of a violation of a number of Articles of the Convention. 126. The Court recalls that it has found serious violations of Articles 3, 6 and 8 of the Convention in the present case, most importantly torture. Deciding on an equitable basis, the Court awards the applicant EUR 20,000 in compensation for non-pecuniary damage (see Nevmerzhitsky, cited above, § 145; Holomiov, cited above, § 155). B. Costs and expenses 127. The applicant claimed EUR 3,136 for costs and expenses, which sum comprised EUR 3,000 for legal representation. In support of his claims he submitted a contract with his representative and an itemised list of hours worked on the case, confirming that the representative had worked 50 hours at a rate of EUR 60 per hour. 128. The Government contested the need to spend 50 hours on the case and noted that the applicant had been represented only after communication of the application to the Government. In addition, the amounts requested were unreasonably high and there was no evidence that the applicant had in fact paid them to his representative. Moreover, the representative was a member of a not-for-profit non-governmental organisation and should have worked for free. 129. The Court recalls that in order for costs and expenses to be included in an award under Article 41, it must be established that they were actually and necessarily incurred and were reasonable as to quantum (see, for example, Ostrovar v. Moldova, cited above, § 121). 130. In the present case, regard being had to the itemised list submitted by the applicant, the above criteria, the complexity of the case and the work done by the applicant's lawyer, who represented the applicant only after the present case had been communicated, the Court awards EUR 2,000 for costs and expenses, less EUR 850 received by way of legal aid from the Council of Europe, together with any value-added tax that may be chargeable (see Nevmerzhitsky, cited above, § 149). C. Default interest 131. 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 1. Declares the application admissible; 2. Holds that there has been a violation of Article 3 of the Convention in respect of the applicant's conditions of detention; 3. Holds that there has been a violation of Article 3 of the Convention in respect of the applicant's force-feeding and the manner thereof; 4. Holds that there has been a violation of Article 6 of the Convention in respect of the refusal to examine the applicant's appeal in cassation due to his failure to pay court fees; 5. Holds that there has been a violation of Article 8 of the Convention as a result of the censorship of his correspondence; 6. Holds that there has been a violation of Article 8 of the Convention in respect of the conditions in which the applicant had to meet with his visitors in prison; 7. Holds that there is no need to examine separately the complaint under Article 10 of the Convention; 8. 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, the following amounts, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 20,000 (twenty thousand euros) in respect of non-pecuniary damage; (ii) EUR 1,150 (one thousand one hundred and fifty euros) in respect of costs and expenses; (iii) any tax that may be chargeable on the above amounts; (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; 9. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 19 June 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıNicolas BratzaDeputy RegistrarPresident

FOURTH SECTION CASE OF BENYÓ AND OTHERS v. HUNGARY (Application no. 76237/13 and 2 others applications - see appended list) JUDGMENT STRASBOURG 7 March 2019 This judgment is final but it may be subject to editorial revision. In the case of Benyó and Others v. Hungary, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: Georges Ravarani, President,Marko Bošnjak,Péter Paczolay, judges,and Liv Tigerstedt Acting Deputy Section Registrar, Having deliberated in private on 14 February 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2. Notice of the applications was given to the Hungarian Government (“the Government”). THE FACTS 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of civil proceedings. In application no. 14935/15, the applicants also raised a complaint under Article 13 of the Convention. THE LAW I. JOINDER OF THE APPLICATIONS 5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 6. The applicants complained principally that the length of the civil proceedings in question had been incompatible with the “reasonable time” requirement. They relied on Article 6 § 1 of the Convention, which reads as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” 7. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 8. In the leading case of Gazsó v. Hungary, no. 48322/12, 16 July 2015, the Court already found a violation in respect of issues similar to those in the present case. 9. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. 10. These complaints are therefore admissible and disclose a breach of Article 6 § 1 of the Convention. III. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 11. In application no. 14935/15, the applicants submitted another complaint which raised issues under Article 13 of the Convention, given the relevant well-established case-law of the Court (see appended table). This complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other ground. Accordingly, it must be declared admissible. Having examined all the material before it, the Court concludes that it also discloses a violation of the Convention in the light of its findings in Gazsó v. Hungary (cited above, § 21). IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 12. 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.” 13. Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the sums indicated in the appended table. 14. 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 these applications disclose a breach of Article 6 § 1 of the Convention concerning the excessive length of civil proceedings; 4. Holds that, in application no. 14935/15, there has been a violation of Article 13 of the Convention as regards the other complaint raised under well‑established case-law of the Court (see appended table); 5 Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State 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. Done in English, and notified in writing on 7 March 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv TigerstedtGeorges Ravarani Acting Deputy RegistrarPresident APPENDIX List of applications raising complaints under Article 6 § 1 of the Convention (excessive length of civil proceedings) No. Application no. Date of introduction Applicant’s name Date of birth Representative’s name and location Start of proceedings End of proceedings Total length Levels of jurisdiction Other complaints under well-established case-law Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros)[1] 76237/13 18/11/2013 (4 applicants) Gusztáv Benyó 04/12/1959 István SÁNDOR 02/08/1947 László SZÉP 03/04/1975 Andrea SZÉP 19/02/1974 Mészáros István Sándor Budapest 05/09/2001 21/05/2013 11 year(s) and 8 month(s) and 17 day(s) 3 level(s) of jurisdiction 7,800 each to Gusztáv Benyó and István Sándor 3,900 each to László Szép and Andrea Szép 14935/15 19/03/2015 (7 applicants) Jánosné Bathó 11/12/1969 Erzsébet GYURKOVICS 17/03/1953 Szabolcs HEGEDŰS 28/07/1979 József István MELOVICS 21/06/1980 Károly Imre PINTÁCSI 02/03/1960 Tibor László STEIGER 19/11/1961 Attila SZKLADÁNYI 10/06/1981 Karsai Dániel András Budapest 18/07/2007 30/01/2015 7 year(s) and 6 month(s) and 13 day(s) 3 level(s) of jurisdiction Art. 13 - lack of any effective remedy in domestic law in respect of excessive length of civil proceedings - 2,600 27900/15 12/05/2015 (6 applicants) Zoltán Demeter 15/12/1958 László LENDVAY 28/09/1972 László VARGA 31/01/1981 György VASKOR 07/11/1971 Sándor Attila KISS 20/11/1967 István KIRÁLY 06/10/1961 Kulisityné Juhász Mária Eger 13/08/2008 27/11/2014 6 year(s) and 3 month(s) and 15 day(s) 2 level(s) of jurisdiction 3,000 [1]. Plus any tax that may be chargeable to the applicants.

FIFTH SECTION CASE OF SCHOLER v. GERMANY (Application no. 14212/10) JUDGMENT STRASBOURG 18 December 2014 FINAL 18/03/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Scholer v. Germany, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Mark Villiger, President,Angelika Nußberger,Boštjan M. Zupančič,Ganna Yudkivska,Vincent A. De Gaetano,Helena Jäderblom,Aleš Pejchal, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 18 November 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 14212/10) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Mr Christoph Scholer (“the applicant”), on 4 March 2010. 2. The applicant was represented by Mr M. Rehberger, a lawyer practising in Saarbrücken. The German Government (“the Government”) were represented by two of their Agents, Mr H.-J. Behrens and Mrs K. Behr, of the Federal Ministry of Justice. 3. The applicant alleged that the criminal proceedings against him had been unfair because he had been convicted of drug offences incited by the police and because he had been unable to cross-examine the main witnesses for the prosecution at any stage of the proceedings, in violation of Article 6 of the Convention. 4. On 12 November 2013 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1964. When lodging his application, he was detained in Saarbrücken Prison. A. The investigation proceedings 6. In July 2007 the Zweibrücken Public Prosecutor’s Office was informed by a person, to whom they had guaranteed confidentiality and whose identity had remained unknown throughout the proceedings, that the applicant was selling large amounts of amphetamine. 7. The Trier police therefore mandated another police informer, S., who was equally guaranteed confidentiality by the Zweibrücken Public Prosecutor’s Office and was supervised by police officer K., to test the veracity of these allegations. S. visited the applicant in his motorbike shop on 18 July 2007 and pretended being interested in buying a motorbike. He visited the applicant in the shop for the second time on 14 August 2007. On that occasion, the applicant told S. that a former member of his motorbike club “Bandidos” had cheated the club and offered S. 1,000 euros (EUR) if he would beat up that person. When the applicant showed S., who had disclosed his acquaintance with arms, his firearms and asked S. whether he could supply him with weapons, S. asked the applicant whether he could sell him amphetamine. The applicant asked in reply how much S. would need and what price he would be ready to pay. S. offered to pay EUR 4,000 per kilogram of amphetamine of a good quality. The applicant agreed to the offer and handed over to S. a sample of amphetamine which he had stored in a drawer of his garage. On 24 August 2007 S. again visited the applicant and offered purchasing 500 grams of amphetamine from the applicant, in accordance with the instructions from his supervising police officer. The applicant agreed to sell that amount of drugs at a price of EUR 2,000. He had carried a loaded revolver during all of his meetings with S. and had threatened S. with the revolver once, accusing him of being a traitor. 8. On 27 August 2007 the Trier District Court authorised the participation of an undercover police officer, C., supervised by police officer L., in the operation. 9. On 28 August 2007 S. bought 500 grams of amphetamine for EUR 2,000 from the applicant, who carried a loaded revolver during the transactions, handed it over to C. who was awaiting him at a different place and brought the money supplied by C. to the applicant. 10. On 20 September 2007 S. again visited the applicant in his garage and told him that he would like to buy further drugs from him. The applicant thereupon asked S. whether he would need one kilogram or more. S. ordered 500 grams of amphetamine, in accordance with his instructions from police officer K., and announced that he would need higher amounts of drugs in the future. The applicant agreed to the proposals. 11. On 4 October 2007 S. again bought 500 grams of amphetamine for EUR 2,000 in the presence of C. from the applicant, who carried a loaded revolver during the transaction. As advised by police officer K., S. then asked the applicant to supply a larger amount of drugs. The applicant explained that he could supply as much as S. wanted, five or ten kilograms. S. thereupon ordered 6.5 kilograms of amphetamine for which he was to pay EUR 26,000. 12. On 16 October 2007 S. and C. bought the amount of amphetamine ordered from the applicant; the drugs were supplied by B. The applicant was arrested after having handed over the drugs to S. and while collecting the money from C. The police further seized 10 grams of amphetamine in the applicant’s flat and numerous guns in his garage. 13. B., having been informed of his right to remain silent, confirmed to the police after his arrest and subsequently before the investigating judge that he had participated in the drug transaction on 16 October 2007 and supplied the amphetamine seized on that day. B. The proceedings before the Trier Regional Court 14. On 31 July 2008 the Trier Regional Court convicted the applicant of two counts of drug trafficking in not insignificant amounts while carrying a weapon and another count of drug trafficking in not insignificant amounts and sentenced him to five years and six months’ imprisonment. 15. The Regional Court established the facts as summarized above (see paragraphs 6-13 above). It further took note of the fact that the applicant, a full member of the motorbike club “MC Bandidos Chapter Kaiserslautern”, had previously been convicted, in particular, by the Trier Regional Court of trafficking in drugs (amphetamine) on 9 February 1989 and sentenced to three years and ten months’ imprisonment. 16. The Regional Court observed that the applicant and his co-accused B. had not made any submissions on the drug charges during the trial hearing. Its findings of fact were based on the credible statements made by S. to his supervising police officer K. and, in respect of the last offence, on the confession made by co-accused B. during the investigation proceedings. 17. In the hearing, the Regional Court, having rejected the applicant’s objection to hearing police officer K. as a witness, had questioned K. as a witness giving hearsay evidence on the observations made by police informer S. It had not been possible to summon and question S. in person as the Rhineland-Palatinate Ministry for the Interior had issued a declaration dated 10 April 2008, supplemented on 21 July 2008 following the trial court’s proposal of alternative methods of questioning, blocking the disclosure of his identity (Sperrerklärung). These declarations, running to twelve and four pages respectively, had been read out in the hearing. 18. The Ministry had argued in these declarations that it was necessary to keep the identities of police informer S., and also of undercover police officer C., secret in order to protect their life and limb and that of their relatives. In the Ministry’s submission, there was a high risk that the applicant would organise a violent revenge against them. He was a member of the motorbike club “MC Bandidos, Chapter Kaiserslautern”, which was well-organised worldwide and known for violent, ruthless acts against persons considered as traitors. Members of the motorbike club were currently suspected of involvement in homicides. The applicant, on whose premises a considerable number of firearms had been found, had himself offered S. EUR 1,000 for assaulting a former member of the motorbike club who was suspected of having deceived the club in the course of business transactions. Further perpetrators who had been involved in the drug deal might equally possess firearms and had not been arrested yet. The disclosure of the identity of the police informer and of the well-trained undercover agent would further compromise the police’s ability to investigate serious crimes with their help or that of other informers in the future. 19. The Ministry further stated that there were no means other than the non-disclosure of their identity for the Land to protect the physical integrity of the police informer and of the undercover agent. In particular, keeping their names or places of residence secret or excluding the public and the applicant during their interrogation in court would be insufficient to protect them, owing to the presence of the applicant’s lawyers and possibly of contact persons of the applicant observing the court building at the day of the trial. The Ministry also rejected the Regional Court’s proposal to have S. questioned by a commissioned judge outside the main hearing as the applicant’s lawyers would be present during such a hearing and might pass on information to the applicant allowing the latter to detect S.’s identity. Likewise, a video conference including acoustic and optical shielding, as equally proposed by the Regional Court, could not exclude S.’s and C.’s identification by their figure, by their gestures and language used or by the disclosure of details permitting the detection of their identity in the course of questioning by the defence. 20. In the Regional Court’s view, the reasons given in the Ministry’s declarations for the non-disclosure of S.’s, and also C.’s, identities were neither arbitrary nor obviously unlawful. 21. The Regional Court noted that police officer K. had questioned S. on 26 October 2007 and had reported S.’s statements in the hearing. It had then given the defence the opportunity to put questions to S. in writing. On 25 June 2008 K. again questioned S., submitting to him the court’s questions and those of B.’s defence counsel, and again reported S.’s statements in court. Both police officer K.’s and S.’s detailed statements without contradictions were credible, having regard also to the fact that it had only hearsay evidence before it. The Regional Court noted, in particular, that the applicant had contested having carried a loaded revolver during the first two transactions, claiming that the object in his pocket had been a multi-tool. It found that S. had already mentioned on 26 October 2007 that the applicant had carried a weapon. When again being questioned by police officer K. on the court’s request on 25 June 2008, S. had given more details in respect of the revolver and had convincingly explained when and how he had seen that it had been loaded, which demonstrated the veracity of his statements. 22. The Regional Court found that the statements made by the police informer could be used as evidence. Under the well-established case-law of the Federal Court of Justice (the Regional Court referred to Federal Court of Justice, file no. 1 StR 221/99, judgment of 18 November 1999, BGHSt 45, pp. 321 ss., see paragraph 34 below), the use of police informers was permitted to combat serious crimes which were difficult to investigate, such as drug trafficking. It was not relevant in that context whether the applicant had been incited by a police informer to commit an offence as, in any event, this would not lead to an exclusion of evidence. In that event, the court would only have to state in the reasons of its judgment that there had been a breach of the right to a fair trial under Article 6 § 1 of the Convention and would have to mitigate the penalty as a result thereof. 23. The Regional Court considered that S.’s submissions had been supported by considerable further circumstantial evidence. In particular, the nature and amount of drugs trafficked was proven as S. had handed the drugs in question over to the police immediately after the respective transactions. Moreover, in respect of the last offence, the applicant and B. had been caught in the act and arrested at the scene of the crime. Furthermore, B. had initially confessed to the (third) offence in the investigation proceedings and his statements had been reported in the hearing by the police officer and the investigating judge who had questioned him at the time. 24. Finally, both B.’s confession and S.’s statements concerning the second offence had been confirmed by the submissions made by undercover police officer C. to police officer L. who supervised him. L. had testified as a witness giving hearsay evidence in the hearing, the court having dismissed the applicant’s objection to hearing him. The identity of C. had remained unknown as he had equally been covered by the Ministry’s declaration blocking a disclosure of his identity. The investigations by an undercover police officer had been lawful under Articles 110a and 110b § 2 of the Code of Criminal Procedure (see paragraphs 31-32 below), as they had been authorised by the Public Prosecutor’s Office and the District Court and had been indispensable in order to further investigate suspicions of drug trafficking by the applicant. 25. When fixing the sentence, the Regional Court considered as aggravating factors the frequency of the offences as well as the applicant’s prior conviction for drug trafficking. It took into account as mitigating elements that the drug transactions had been under police surveillance from the outset and that the drugs could not, therefore, freely circulate on the market. Moreover, the applicant had trafficked in so-called soft drugs of average quality only. Furthermore, the applicant was disabled at a rate of 70 per cent and therefore particularly susceptible to suffer from detention. 26. In the Regional Court’s view the applicant had not, however, been unduly incited by police informer S. to commit the offences in question, within the meaning of the case-law of the Federal Court of Justice (the Regional Court again referred to the Federal Court of Justice’s judgment of 18 November 1999, cited above, BGHSt 45, pp. 321 ss.). The applicant had already been involved in drug trafficking and been predisposed to sell drugs prior to his meeting with the police informer. This was proven, in particular, by the fact that he had supplied S. with an amphetamine sample already when they discussed drug transactions for the first time. Moreover, he had indicated on that occasion that he could supply S. with larger amounts of drugs. The Regional Court found in that context that the price offered by S. to the applicant (EUR 4,000) was the average price for a kilogram of amphetamine of average quality in the region. Furthermore, the applicant had previously been convicted of drug trafficking. As his offences had not therefore been the result of unlawful police incitement, there was no ground for mitigating the sentence on that account. C. The proceedings before the Federal Court of Justice 27. On 1 August 2008 the applicant lodged an appeal on points of law with the Federal Court of Justice. He claimed, in particular, that his right to a fair trial under Article 6 §§ 1 and 3 (d) of the Convention had been breached as he had been unable to cross-examine police informer S. and undercover agent C., on whose submissions his conviction had essentially been based. Moreover, S. had unduly incited him to sell drugs. The evidence obtained by the incitement should therefore have been excluded at his trial. 28. On 12 December 2008 the Federal Court of Justice dismissed the applicant’s appeal on points of law against the Regional Court’s judgment as ill-founded. D. The proceedings before the Federal Constitutional Court 29. On 19 January 2009 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He complained, in particular, that the judgment of the Regional Court, confirmed by the Federal Court of Justice, had breached his right to a fair trial under the Basic Law. He had been unduly incited by the prosecution authorities to commit the offences he had later been found guilty of. Therefore, the evidence obtained by police incitement should have been excluded at his trial (he referred to the European Court of Human Right’s judgment in the case of Pyrgiotakis v. Greece, no. 15100/06, 21 February 2008 to support his view). Moreover, throughout the proceedings, he had not had an opportunity to question the police informer and the undercover police officer. 30. On 3 September 2009 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 2 BvR 164/09). The decision was served on the applicant’s counsel on 10 September 2009. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Provisions on undercover agents and police informers 31. Under Article 110a § 1 no. 1 of the Code of Criminal Procedure, undercover investigators may be used to investigate criminal offences if there are sufficient factual indications showing that a criminal offence of considerable significance has been committed in the field of illegal trade in drugs. Their intervention is only admissible if the investigation would offer no prospects of success or be considerably more difficult otherwise. Article 110a § 2 of the Code of Criminal Procedure provides that undercover investigators are police officers who investigate using a longer‑lasting changed identity conferred on them (so-called legend). 32. Article 110b § 2 of the Code of Criminal Procedure provides that interventions of an undercover investigator which are directed against a specific suspect or in the course of which the undercover investigator enters a flat which is not generally accessible, have to be authorised by the court. Under Article 110b § 3 of the Code of Criminal Procedure the identity of the undercover investigator may be kept secret even after the termination of the intervention. In criminal proceedings, the identity may be kept secret under the terms of Article 96, in particular if there is cause for concern that disclosure of the identity would jeopardize the life, limb or liberty of the undercover investigator or of another person or compromise the possibility of further using the undercover investigator. Article 96 of the Code of Criminal Procedure provides that the submission of files or other documents officially impounded by authorities may not be requested if their highest superior authority declares that disclosure of the content of these files or documents would be detrimental to the welfare of the Federation or of a German Land. 33. The use of police informers is not specifically addressed in the Code of Criminal Procedure, but falls under the general provisions of Articles 161 and 163 of the Code of Criminal Procedure authorising the police and the Public Prosecutor’s Office to investigate criminal offences. B. Relevant case-law of the Federal Court of Justice 34. Under the Federal Court of Justice’s well-established case-law, the use of police informers and undercover police officers is, in principle, permitted in order to combat crimes which are particularly dangerous and difficult to investigate, such as drug trafficking (see, in particular, Federal Court of Justice, file no. 1 StR 221/99, judgment of 18 November 1999, BGHSt 45, pp. 321 ss., § 10 (of the internet version) with further references). The right to a fair trial under Article 6 § 1 of the Convention is breached, however, if the accused had been induced to commit the offences he was indicted of by an incitement contrary to the rule of law and imputable to the State (see, in particular, Federal Court of Justice, file no. 1 StR 221/99, cited above, § 8). As to the consequences to be drawn from a finding of police incitement, under the Federal Court of Justice’s case-law, an incitement to commit an offence, even if it was contrary to the rule of law, does not constitute a bar to criminal proceedings. It only has to be taken into consideration – as a considerable mitigating factor – in the fixing of the penalty (so-called fixing of penalty approach (Strafzumessungslösung); see, inter alia, Federal Court of Justice, file no. 1 StR 221/99, cited above, §§ 13 and 18 with further references). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON ACCOUNT OF THE IMPOSSIBILITY TO QUESTION TWO WITNESSES FOR THE PROSECUTION 35. The applicant complained that he had been unable to cross-examine the police informer and the undercover police officer at any stage of the proceedings, despite the fact that his conviction had been based on their statements alone. He relied on Article 6 of the Convention, which, in so far as relevant, provides: “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: ... (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; ...” 36. The Government contested that argument. A. Admissibility 37. 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’ submissions (a) The applicant 38. The applicant claimed that the criminal proceedings against him had breached Article 6 §§ 1 and 3 (d) of the Convention. He argued that his right to cross-examine the prosecution witnesses, namely police informer S. and undercover agent C., had been breached, in particular because there had not been any other evidence against him. A cross-examination of the police informer would have been essential because the latter had not told the truth in his first hearing (via police officer K.) by the Regional Court. In that hearing, the informer had not mentioned central incriminating aspects, such as the allegation that the applicant had threatened the informer with a loaded gun, an element which he had mentioned for the first time in a second hearing on 25 June 2008. It would have been crucial in such circumstances to enable the applicant to question the informer directly in order to safeguard his defence rights. (b) The Government 39. In the Government’s view, the criminal proceedings against the applicant had been fair despite the fact that the applicant had been unable to cross-examine the police informer and the undercover agent directly and had thus complied with Article 6 §§ 1 and 3 (d) of the Convention. 40. Referring to the criteria established in the Court’s case-law in respect of the lack of an opportunity to cross-examine witnesses for the prosecution (in particular, Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, §§ 118 ss., ECHR 2011), the Government argued that there had both been valid reasons not to allow the applicant to question the police informer and the undercover agent in court and there had been sufficient factors compensating for the lack of opportunity for the applicant to put questions to them. 41. As to the reasons for not granting the applicant an opportunity to question the police informer and the undercover agent directly, the Government submitted that the latter two’s life and limb would have been at risk otherwise. The extent of the risk to which the witnesses would have been exposed had been convincingly explained and corroborated with facts in the declaration of the Rhineland-Palatinate Ministry for the Interior blocking the disclosure of their identities, which had been examined and considered as not being arbitrary by the Trier Regional Court. There were no shortcomings in that declaration and the applicant accordingly had not availed himself of the opportunity to have the lawfulness of the Ministry’s declaration reviewed by the administrative courts. The State authorities were obliged in these circumstances to protect the life and limb of the witnesses. Their interest in protection outweighed that of the applicant in directly cross-examining them also because the risk they were exposed to emanated from the applicant’s sphere. 42. The Government stressed that there had been further available evidence, in addition to the statements made by the police informer and the undercover agent, introduced into the proceedings indirectly through their supervising officers, to prove the applicant guilty of three counts of drug trafficking. In respect of the third offence, the Regional Court had been able to base its findings on the confession which the applicant’s co-accused B. had made before the investigating judge and which the latter had reported in the hearing and on the result of the search of B.’s flat. Furthermore, the Regional Court had disposed of evidence enabling it to verify the statements of the informer and the undercover agent in respect of all three offences. The drugs sold by the applicant had been seized immediately after the offences. Moreover, the court had regard to the results of the searches of the applicant’s garage and flat. 43. Finally, even assuming that the statements made by the two witnesses for the prosecution had been the decisive evidence against the applicant at least for the first and second offence, the restrictions in his defence rights resulting from the fact that he had not been provided an opportunity to question these witnesses had been compensated. The Regional Court had done everything in its power to question the witnesses directly in the hearing. Moreover, the applicant had been given the opportunity to put written questions to the witnesses. He had therefore been in a position to challenge the credibility of the witnesses. The Regional Court had further assessed the credibility of the hearsay evidence before it with particular caution. In particular, it had taken note of the fact that police informer S. had made additional statements in his second interrogation concerning the weapons carried by the applicant during the transactions. Contrary to the applicant, it had, however, considered the fact that S. had been able to provide details in response to further questioning as demonstrating that he told the truth. 2. The Court’s assessment (a) Relevant principles 44. The Court reiterates that the guarantees in paragraph 3 (d) of Article 6 are specific aspects of the right to a fair hearing set forth in paragraph 1 of this provision which must be taken into account in any assessment of the fairness of proceedings. The admissibility of evidence is a matter for regulation by national law and the national courts and the Court’s concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings (see, inter alia, Gäfgen v. Germany, no. 22978/05, §§ 162-163, 30 June 2008). In making this assessment the Court will look at the proceedings as a whole having regard to the rights of the defence but also to the interests of the public and the victims that crime is properly prosecuted (see Gäfgen, cited above, § 175) and, where necessary, to the rights of witnesses (see, amongst many authorities, Doorson v. the Netherlands, 26 March 1996, § 70, Reports 1996‑II; Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118, ECHR 2011; and Sievert v. Germany, no. 29881/07, § 58, 19 July 2012). 45. Article 6 § 3 (d) enshrines the principle that, before an accused can be convicted, all evidence against him must normally be produced in his presence at a public hearing with a view to adversarial argument. Exceptions to this principle are possible but must not infringe the rights of the defence, which, as a rule, require that the accused should be given an adequate and proper opportunity to challenge and question a witness against him, either when that witness makes his statement or at a later stage of proceedings (see Lucà v. Italy, no. 33354/96, § 39, ECHR 2001‑II; Solakov v. the former Yugoslav Republic of Macedonia, no. 47023/99, § 57, ECHR 2001‑X; Vronchenko v. Estonia, no. 59632/09, § 55, 18 July 2013; and Rosin v. Estonia, no. 26540/08, § 52, 19 December 2013). 46. The Court has recently clarified in its judgment in the cases of Al‑Khawaja and Tahery (cited above) that the following three elements must be examined where a witness against the accused is absent at the hearing by the trial court. First, there must be a good reason for the non‑attendance of a witness (ibid., § 119). In case of a witness’s absence owing to fear, the Court considered that when the witness’s fear is attributable to threats or other actions of the defendant or those acting on his behalf, it is appropriate to allow the evidence of that witness to be introduced at trial without the need for the witness to give live evidence or be examined by the defendant or his representatives. A defendant who has acted in this manner must be taken to have waived his rights to question such witnesses under Article 6 § 3 (d) (ibid., §§ 122-123). When the witness’s fear of testifying is not directly attributable to threats made by the defendant or his agents, but to their notoriety, the trial court must conduct appropriate enquiries to determine first, whether or not there are objective grounds for that fear, and, second, whether those objective grounds are supported by evidence (ibid., §§ 122 and 124 with further references). Finally, when a witness has not been examined at any prior stage of the proceedings, allowing the admission of a witness statement in lieu of live evidence at trial must be a measure of last resort. Before a witness can be excused from testifying on grounds of fear, the trial court must be satisfied that all available alternatives, such as witness anonymity and other special measures, would be inappropriate or impracticable (ibid., § 125). 47. In the event that the impossibility of examining a witness or having him or her examined is due to the fact that he or she is missing, the authorities must take reasonable efforts to secure his or her presence. However, provided that the authorities cannot be accused of a lack of diligence in their efforts to award the defendant an opportunity to examine the witness in question, the witness’s unavailability as such does not make it necessary to discontinue the prosecution (see Scheper v. the Netherlands (dec.), no. 39209/02, 5 April 2005; Mayali v. France, no. 69116/01, § 32, 14 June 2005; Haas v. Germany (dec.), no. 73047/01, 17 November 2005; and Mirilashvili v. Russia, no. 6293/04, § 163, 11 December 2008). 48. The Court shall examine, secondly, whether the statement of the absent witness, whom the defendant has had no opportunity to examine or to have examined, whether during the investigation or at the trial, is the sole or decisive (that is, of such significance or importance as is likely to be determinative of the outcome of the case) evidence against the defendant (see Al-Khawaja and Tahery, cited above, §§ 131 and 147). 49. Even in that event, the admission of the statement of an absent witness as evidence will not automatically result in a breach of Article 6 § 1. However, the Court must then subject the proceedings to the most searching scrutiny. Because of the dangers of the admission of such evidence, it would constitute a very important factor to balance in the scales and one which would require sufficient counterbalancing factors, including the existence of strong procedural safeguards. The Court must therefore examine, thirdly, whether there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place (Al-Khawaja and Tahery, cited above, § 147). 50. The problems posed by absent witnesses and anonymous witnesses are not different in principle (see Al-Khawaja and Tahery, cited above, § 127; Ellis, Simms and Martin against the United Kingdom (dec.), nos. 46099/06 and 46699/06, § 74, 10 April 2012; and Pesukic v. Switzerland, no. 25088/07, § 45, 6 December 2012). If the defence is unaware of the identity of the person it seeks to question, it may be deprived of the very particulars enabling it to demonstrate that he or she is prejudiced, hostile or unreliable (see Pesukic, cited above, § 45) and, just as in the case of an absent witness, is faced with difficulties in challenging the reliability of the evidence given by the witness (compare Al-Khawaja and Tahery, cited above, § 127). 51. Accordingly, in line with the criteria clarified by the Court in the cases of Al-Khawaja and Tahery (cited above) in respect of absent witnesses, in assessing the fairness of a trial involving anonymous witnesses, the Court must examine, first, whether there are good reasons to keep secret the identity of the witness. Second, the Court must consider whether the evidence of the anonymous witness was the sole or decisive basis of the conviction. Third, where a conviction is based solely or decisively on the evidence of an anonymous witness, the Court must be satisfied that there are sufficient counterbalancing factors, including the existence of strong procedural safeguards, to permit a fair and proper assessment of the reliability of that evidence to take place (see Ellis, Simms and Martin, cited above, §§ 76-78; Pesukic, cited above, § 45; compare also Gani v. Spain, no. 61800/08, §§ 40-41, 19 February 2013; see previously, for instance, Haas, cited above, with further references). (b) Application of these principles to the present case 52. The Court notes that, in the present case, neither the applicant nor his counsel were able to cross-examine police informer S. and undercover police officer C. in person at the trial or at least during the investigation stage. The trial court was unable to summon these witnesses because the Rhineland-Palatinate Ministry for the Interior had blocked the disclosure of their identities, arguing that there was a high risk that the applicant would organise a violent revenge against them. The witnesses were thus both absent from the applicant’s trial and anonymous in the sense that their true identity was unknown to the defence, the applicant having met the witnesses in person under their false identities. 53. In determining whether, in these circumstances, the trial against the applicant had complied with his rights under Article 6 §§ 1 and 3 (d) of the Convention, the Court must determine, in the light of the above principles, first, whether there was a good reason both for keeping secret the identity of the witnesses and for their non-attendance at the trial. It notes that the primary reason for the witnesses’ absence at the applicant’s trial was that the trial court was unable to summon them for lack of disclosure of their true identities and contact details by the Rhineland-Palatinate Ministry for the Interior. The trial court made reasonable, but fruitless efforts to secure the witnesses’ presence or at least their questioning by alternative methods in that it notably proposed to the Ministry to examine the witnesses in person via a video conference or a commissioned judge. As it was thus a domestic authority of the defendant State, the said Ministry, which was responsible for the witnesses’ anonymity and their absence from trial, the Court considers it necessary to test also the reasoning given by that authority, and accepted by the trial court, directly for its compliance with the criteria developed in the Court’s case-law. 54. The Court observes in this respect that the reason given by the Ministry for the witnesses’ anonymity and non-attendance at the trial was the need for the protection of their life and limb and that of their relatives. In determining whether the witnesses’ absence owing to fear was attributable to threats or other actions of the defendant or those acting on his behalf, the Court notes that the applicant or his agents do not appear having threatened S. directly in respect of a forthcoming witness statement of the latter before the trial court. However, the applicant had already threatened S. with a loaded revolver during one of the drug transactions, accusing him of being a traitor. Moreover, he had shown himself ready to organise a violent revenge against persons considered as traitors in that he had himself offered the applicant money for beating up a person who was considered to have cheated his motorbike club. 55. Even assuming that these threats uttered by the applicant against S. are not to be understood as sufficiently direct threats against S. in case he testified against the applicant at a trial and that the applicant must therefore not be considered as having waived his right to question S., the Court observes the following. If the need for protection of police informer S., and also of undercover agent C., is considered not directly attributable to threats made by the defendant or his agents in this respect, but to their notoriety, the trial court must have conducted appropriate enquiries to determine whether or not there were objective grounds for that fear, supported by evidence. 56. The Court notes in this respect that the trial court endorsed the reasoning of the Rhineland-Palatinate Ministry for the Interior which had explained that keeping the witnesses’ identity secret and not permitting their attendance at the trial was necessary in order to protect their life and limb and that of their relatives. There was a high risk that the applicant would organise a violent revenge against them. He was a full member of the motorbike club “Bandidos”, a well-organised club known for its violent and ruthless acts against persons considered as traitors and members of whom were then suspected of involvement in homicides. The Court further notes that the applicant had offered S. money for beating up a person who was considered having deceived the club and had himself already threatened S. with a loaded gun. The Court is satisfied that, having regard to these elements and to the evidence taken by the trial court in these respects in the hearing, that the court could reasonably consider S.’s and C.’s need for protection objectively justified. It further observes in this context that the applicant did not contest the Government’s observation that he had not availed himself of the opportunity to have the lawfulness of the Ministry’s declaration reviewed by the administrative courts. 57. The Court must further examine whether excusing the witnesses from testifying at the trial on grounds of protecting them and maintaining their anonymity was a measure of last resort, as required by the Court’s case-law (see paragraph 46 above). It notes in this context that the trial court examined alternative measures allowing the examination of the witnesses in person, notably having the witnesses questioned by a commissioned judge outside the main hearing in the presence of the applicant’s lawyers or via a video conference including acoustic and optical shielding. It considered that there was not only a risk of the witnesses’ identification by their figure, gestures or language – which were known to the applicant, but not to other persons present on his behalf – but also a risk of disclosure of details in the course of questioning by the defence permitting the detection of their identity. The Court accepts that the trial court could consider these alternatives as insufficient to protect the witnesses in the circumstances. It recalls, in this context, that allowing notably police informers to provide information anonymously is a vital tool in prosecuting, in particular, organised crime (see Donohoe v. Ireland, no. 19165/08, § 80, 12 December 2013, with further references). There was, therefore, a good reason both for keeping secret the identity of the witnesses and for their non-attendance at the trial. 58. The Court must examine, second, whether the statements of the absent and anonymous witnesses at issue were the sole or decisive evidence against the applicant. It notes that according to the Regional Court, its findings were based, in particular, on the statements made by S. and reported in the hearing by his supervising police officer K. and, in respect of the last offence, on the confession made by co-accused B. during the investigation proceedings, reported by the investigating judge at the trial. These submissions were supported by other corroborating evidence, including the drugs handed over to the police immediately after each transaction, the fact that the applicant and his co-accused B. were caught in the act during the third offence and the fact that an albeit small quantity of amphetamine was found in the applicant’s flat. S.’s statements further matched the statements made by undercover agent C. and reported in the hearing by his supervising police officer L. 59. In view of these elements, the Court considers that – even taking into account that the drugs seized in the first and second transaction constituted material evidence – the conviction concerning the first and second offence was to a decisive degree based on police informer S.’s testimony. In contrast, in respect of the third offence, S.’s statements appear to have been considerable, but not decisive evidence against the applicant, given that the trial court could and did base its findings on the confession to the offence made by co-accused B. – albeit introduced into the trial by the investigating judge and thus being hearsay evidence – and the evidence obtained by the fact that the applicant was caught in the act by the police. 60. The Court must therefore determine, third, whether there were sufficient counterbalancing factors in place, including the existence of strong procedural safeguards, permitting a fair and proper assessment of the reliability of the impugned witness evidence. It considers that the main counterbalancing factor for the restriction of the applicant’s defence rights was that the latter was given the opportunity, as were the court, the prosecution and the co-accused, to put questions to informer S. in writing, to which the latter replied, the replies being again reported by his supervising police officer K. in the hearing. 61. Moreover, the Regional Court assessed the hearsay evidence before it with particular care. It tested the reliability of that evidence in the light of the corroborating evidence before it. In particular, the additional evidence obtained in respect of the third and most serious offence served to corroborate the hearsay evidence in respect of the first and second drug transactions between the same persons, that is, the applicant, S. and C. The cautious evaluation of the evidence by the trial court is further demonstrated in its examination of the applicant’s allegation that police informer S. had made contradictory and wrong statements on the weapon the applicant had carried during his meetings with S. and that the applicant had only had a multi-tool with him. The Regional Court found in this respect that informer S. had not made contradictory statements during his first and second interrogation reported by K., but, on the court’s request, had only given more details on the weapon carried by the applicant and on how he had seen that it had been loaded in the second meeting. 62. Having regard to these elements, the Court finds that there were sufficient counterbalancing factors in place which permitted the trial court to assess the reliability of the impugned witness evidence fairly and properly. 63. In view of the foregoing, the Court concludes that the trial against the applicant as a whole has not been unfair because of the fact that he was unable to examine or have examined the witnesses for the prosecution S. and C. in person. There has accordingly been no violation of Article 6 §§ 1 and 3 (d) of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON ACCOUNT OF POLICE INCITEMENT 64. The applicant further complained that the criminal proceedings against him had been unfair in that he had been unduly incited by the investigation authorities, acting as agents provocateurs, to commit the drug offences he had subsequently been convicted of. He again relied on Article 6 of the Convention, which, in so far as relevant, reads as follows: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 65. The Government contested that argument. A. Admissibility 66. 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’ submissions (a) The applicant 67. The applicant argued that he had been unlawfully incited by the police informer and the undercover agent to commit the drug offences in question, in breach of Article 6 § 1 of the Convention. 68. The applicant submitted that he had not been predisposed to commit drug offences. The fact that residuals of amphetamine had been found at his place or that he had possessed small quantities of drugs had not proven this. He had carried out a drug deal only after he had been asked by S. whether he could sell him drugs. He had neither been involved in organized drug crime nor had he trafficked in drugs prior to having been contacted by the police informer. It had not been proven in court that he had had any further drug providers or buyers. Without S.’s and C.’s intervention, he would not have committed an offence. 69. In the applicant’s submission, the informer and the undercover agent had not remained essentially passive in the drug transactions. The police informer had been sent to him in order to incite him to sell drugs and had accordingly asked him whether he would do so. Moreover, the police informer had also incited him to traffic in drugs by offering him an exceptionally high price, which had been at the upper end of what was usual (EUR 4,000 for one kilogram of amphetamine). Moreover, the investigators had enhanced the quantity of drugs to be delivered by him in subsequent transactions. In addition, S. had incited him to conclude drug deals also by mentioning the possibility of further transactions, namely the purchase of a motorbike from him. 70. Relying on the Court’s case-law (he referred to Pyrgiotakis, cited above), the applicant argued that the evidence obtained by his unlawful entrapment should have been excluded at his trial. (b) The Government 71. In the Government’s submission, the proceedings against the applicant had complied with Article 6 § 1 of the Convention. The use of a police informer and an undercover agent to investigate suspicions of drug trafficking against the applicant and the use of the evidence obtained by that measure in the criminal proceedings against him had not breached his right to a fair trial. 72. The Government argued that, as had been found by the Trier Regional Court, the applicant had not been incited, within the meaning of the Court’s case-law on undue interventions of agents provocateurs, by the police informer and the undercover agent to commit the drug offences he had subsequently been convicted of. He would have committed these offences also without the authorities’ intervention. 73. Referring to the criteria for examining whether there had been undue police incitement for the purposes of the Court’s case-law (so-called substantive test of incitement; see, in particular, Bannikova v. Russia, no. 18757/06, §§ 37 ss., 4 November 2010), the Government submitted that the applicant had been predisposed to commit the drug offences in question. He had not only been convicted of drug trafficking (amphetamine) already in 1989. Several further factual elements indicated that the applicant had already been involved in drug trafficking before being contacted by the police informer. In particular, the applicant had stocked amphetamine in his garage and flat independently of his meeting with S. and had handed over a sample thereof to S. already at their second meeting, when they discussed the sale of drugs for the first time. When asked by S. about business opportunities in this respect, he immediately started organizing several drug transactions. The speedy conclusion of the transactions, the applicant’s familiarity with the prices for amphetamine and his ability to procure larger amounts of drugs within a short time indicated that the applicant had already been involved in organized drug crime. 74. The Government further argued that the informer and the undercover agent had remained essentially passive in the transactions. When asking the applicant on his second visit on 14 August 2007 whether an amphetamine deal was possible, S. had not done more than necessary to conduct covert investigations. The applicant had immediately consented to drug trafficking, had handed over an amphetamine sample without having been asked to do so and had fixed the modalities of the drug deals. It had been the applicant who had increased the quantity of drugs sold at every meeting. Moreover, as had been confirmed by the Trier Regional Court, S. had not offered more than the market price for the drugs in question. S. further had not incited the applicant to continue trafficking in drugs by linking the purchase of drugs with that of a motorbike from him. 75. Furthermore, the Government submitted that the involvement of the police informer and the undercover agent had been in accordance with domestic law. The involvement of undercover police officer C. in the operation had been in accordance with Articles 110a ss. of the Code of Criminal Procedure (see paragraphs 31-32 above). In particular, it had been authorized by the Trier District Court on 27 August 2007. Likewise, the intervention of police informer S. had complied with Articles 161 and 163 of the Code of Criminal Procedure (see paragraph 33 above), as interpreted by the domestic courts. Both C. and S. had been supervised. 76. Finally, the Government argued that the Trier Regional Court had thoroughly examined the applicant’s incitement plea and had convincingly considered it unfounded. 2. The Court’s assessment (a) Relevant principles 77. The Court reiterates that the Convention does not preclude reliance, at the investigation stage of criminal proceedings and where the nature of the offence so warrants, on sources such as anonymous informants. However, the subsequent use of their statements by the court of trial to found a conviction is a different matter. The use of undercover agents must be restricted and safeguards put in place even in cases concerning the fight against drug trafficking. The requirements of a fair criminal trial under Article 6 entail that the public interest in the fight against drug trafficking cannot justify the use of evidence obtained as a result of police incitement (see Teixeira de Castro v. Portugal, 9 June 1998, §§ 35-36, Reports of Judgments and Decisions 1998‑IV; and Vanyan v. Russia, no. 53203/99, § 46, 15 December 2005). 78. When faced with a plea of police incitement, or entrapment, the Court will, in a first step, attempt to establish whether there has been such incitement or entrapment (substantive test of incitement; see Bannikova v. Russia, no. 18757/06, § 37, 4 November 2010). Police incitement occurs where the officers involved or persons acting on their instructions do not confine themselves to investigating criminal activity in an essentially passive manner, but exert such an influence on the subject as to incite the commission of an offence that would otherwise not have been committed, in order to make it possible to establish the offence, that is, to provide evidence and institute a prosecution (see Ramanauskas v. Lithuania [GC], no. 74420/01, § 55, ECHR 2008 with further references; and Bannikova, cited above, § 37; compare also Pyrgiotakis v. Greece, no. 15100/06, § 20, 21 February 2008). The rationale behind the prohibition on police incitement is that it is the police’s task to prevent and investigate crime and not to incite it. 79. In order to distinguish police incitement, or entrapment, in breach of Article 6 § 1 from the use of legitimate undercover techniques in criminal investigations, the Court has developed the following criteria. 80. In deciding whether the investigation was “essentially passive” the Court will examine the reasons underlying the covert operation and the conduct of the authorities carrying it out. The Court will rely on whether there were objective suspicions that the applicant had been involved in criminal activity or was predisposed to commit a criminal offence (see Bannikova, cited above, § 38). 81. The Court found, in that context, in particular, that the national authorities had had no good reason to suspect a person of prior involvement in drug trafficking where he had no criminal record, no preliminary investigations had been opened against him and there was nothing to suggest that he had a predisposition to become involved in drug dealing until he was approached by the police (see Teixeira de Castro, cited above, § 38; confirmed in Edwards and Lewis v. the United Kingdom [GC], nos. 39647/98 and 40461/98, §§ 46 and 48, ECHR 2004‑X; Khudobin v. Russia, no. 59696/00, § 129, ECHR 2006‑XII (extracts); Ramanauskas, cited above, § 56; and Bannikova, cited above, § 39; see also Pyrgiotakis, cited above, § 21). In addition to the aforementioned, the following may, depending on the circumstances of a particular case, also be considered indicative of pre-existing criminal activity or intent: the applicant’s demonstrated familiarity with the current prices for drugs and ability to obtain drugs at short notice (compare Shannon v. the United Kingdom (dec.), no. 67537/01, ECHR 2004‑IV) and the applicant’s pecuniary gain from the transaction (see Khudobin, cited above, § 134; and Bannikova, cited above, § 42). 82. When drawing the line between legitimate infiltration by an undercover agent and incitement of a crime the Court will further examine the question whether the applicant was subjected to pressure to commit the offence. In drug cases it has found the abandonment of a passive attitude by the investigating authorities to be associated with such conduct as taking the initiative in contacting the applicant, renewing the offer despite his initial refusal, insistent prompting, raising the price beyond average or appealing to the applicant’s compassion by mentioning withdrawal symptoms (see, among other cases, Bannikova, cited above, § 47; and Veselov and Others v. Russia, nos. 23200/10, 24009/07 and 556/10, § 92, 2 October 2012). 83. When applying the above criteria, the Court places the burden of proof on the authorities. It falls to the prosecution to prove that there was no incitement, provided that the defendant’s allegations are not wholly improbable. In practice, the authorities may be prevented from discharging this burden by the absence of formal authorisation and supervision of the undercover operation (see Bannikova, cited above, § 48). The Court has emphasised in that context the need for a clear and foreseeable procedure for authorising investigative measures, as well as for their proper supervision. It considered judicial supervision as the most appropriate means in case of covert operations (see Bannikova, cited above, §§ 49-50; compare also Edwards and Lewis, cited above, §§ 46 and 48). (b) Application of these principles to the present case 84. The Court is called upon to determine whether the applicant committed the drug offences he was convicted of as a result of police incitement in breach of Article 6 § 1 (substantive test of incitement). This was the case if the police must be considered not to have investigated the applicant’s activities in an essentially passive manner, but to have exerted such an influence on him as to incite the commission of drug offences he would not have committed otherwise. 85. Having regard to the criteria established in the Court’s case-law in order to distinguish police incitement from legitimate undercover techniques, the Court notes that the following factors led the authorities to suspect that the applicant was predisposed to trafficking in drugs. The police mounted three test purchases with the help of police informer S. only after the Public Prosecutor’s Office had been made aware by a different anonymous informer that the applicant was allegedly selling large amounts of amphetamine. Moreover, the applicant had previously been convicted of trafficking in amphetamine. Although that conviction dated back to 1989, and was thus pronounced some eighteen years prior to the police investigations in 2007, it proved that the applicant had already been involved in offences such as the one he was then suspected of. 86. Moreover, there were further elements indicating that the applicant was involved in drug trafficking. When asked for the first time by the police informer whether he could supply him with amphetamine, the applicant, immediately accepting the price proposed by the police informer, showed to be familiar with the current market prices for that drug. Furthermore, he had notably stored a drug sample in his garage which he handed over to the informer on his own initiative when they discussed the sale of drugs for the first time and which, therefore, had obviously been stocked independently of the informer enquiring about the possibility to buy drugs from the applicant. The applicant further demonstrated, in particular, in the course of the third drug transaction that he was able to supply larger quantities of drugs at short notice. 87. In view of these elements, the Court is satisfied that the authorities had sufficiently good reasons to suspect that the applicant was involved in drug trafficking or at least predisposed to commit such an offence. 88. As regards the manner in which the police investigated the applicant’s activities, the Court observes that it had been the police, via its informer S., who approached the applicant to inquire about the possibility to conclude a drug transaction. However, it has not been shown that police informer S., supervised by police officer K. and subsequently working in cooperation with C., a trained undercover police officer who participated in the operation following a court order, went beyond the conduct of an “ordinary” customer of a drug dealer throughout the investigations. The police informer did not subject the applicant to undue pressure to conclude the drug transactions. 89. The Court notes in this respect that the police informer, who had only asked the applicant about his readiness to sell drugs, has not been shown to have prompted the applicant to sell him drugs. The applicant, for his part, immediately consented to concluding drug transactions following the informer’s inquiry. Furthermore, as regards the applicant’s argument that he had been incited to sell drugs by having been offered an exceptionally high purchase price at the upper end of what was usual, the Court notes that according to the Trier Regional Court’s findings (see paragraph 26 above), which have not been substantially challenged by the applicant, the price offered by the police informer was the average price for that amount and quality of amphetamine in the region. Moreover, the Court is not convinced by the applicant’s argument that he had been incited to conclude a drug transaction in order to facilitate the sale of a motorbike. It has not been shown that the police informer had linked the drug transactions in any way to the possible purchase of a motorbike from the applicant. As to the applicant’s argument that the police investigators had enhanced the quantity of drugs ordered, thus inciting him to traffic in larger amounts of drugs, the Court notes that the police informer indeed asked the applicant prior to the third drug transaction whether he could supply him with larger amounts of drugs. However, the exact quantity of drugs ordered was only fixed at 6.5 kilograms by the informer after the applicant had explained that he could supply the informer with as much drugs as the informer wanted, five or ten kilograms (see paragraph 11 above). The Court therefore concludes that the applicant was not subjected to undue pressure by the informer, acting on the police’s instructions, to commit the drug offences he was subsequently found guilty of. 90. In view of the foregoing, the Court is satisfied that the police investigated the applicant’s activities in an essentially passive manner and did not incite the applicant to commit drug offences he would not have committed had an “ordinary” customer approached him instead of the police. The undercover measure thus did not amount to police incitement, as defined in the Court’s case-law under Article 6 § 1 of the Convention. The subsequent use, in the criminal proceedings against the applicant, of the evidence obtained by the undercover measure therefore does not raise an issue under Article 6 § 1. 91. There has accordingly been no violation of Article 6 § 1 of the Convention on account of police incitement. FOR THESE REASONS, THE COURT 1. Declares, by a majority, the application admissible in respect of the complaint about the impossibility to question two witnesses for the prosecution; 2. Declares, unanimously, the application admissible in respect of the complaint about police incitement; 3. Holds, by four votes to three, that there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention on account of the impossibility to question two witnesses for the prosecution; 4. Holds, unanimously, that there has been no violation of Article 6 § 1 of the Convention on account of alleged police incitement. Done in English, and notified in writing on 18 December 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekMark VilligerRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Zupančič, Yudkivska and De Gaetano is annexed to this judgment. M.V.C.W. JOINT PARTLY DISSENTING OPINION OF JUDGES ZUPANČIČ, YUDKIVSKA AND DE GAETANO 1. We regret that we are unable to subscribe to the majority view in this case that there has been no violation of Article 6 § 1 read in conjunction with Article 6 § 3 (d) of the Convention. 2. First of all, it is pertinent to recall that the Grand Chamber judgment in Al-Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, ECHR 2011) heavily relied upon by the majority in the instant case, was crafted in the context of specific provisions of English law and also in the context of the criticism levelled by English courts at the Court’s “sole or decisive rule” with regard to evidence which an accused is not able to test in open court through cross-examination, as provided for in Article 6 § 3 (d). While the Al-Khawaja and Tahery judgment may, indeed, be considered a successful example of “dialogue between courts”, it remains a very “country-specific” judgment, and this Court should be extremely careful in extrapolating even “general principles” from that case to other cases. 3. Secondly, the rights set out in paragraph 3 of Article 6 are, by definition, “minimum rights”. This expression would therefore suggest that if any exceptions are to be made to these rights, such exceptions must be very narrowly construed. 4. Turning to the instant case, the majority accept that, notwithstanding any other evidence, the statements made by police informer S. were decisive for the outcome of the proceedings concerning the first and second offences with which the applicant was charged (see paragraph 59). The statements made by police informer S., as well as those made by undercover police officer C., were never confirmed on oath before anyone – in that sense it may be a bit misleading to refer to them as “testimony”. The identity of S. and C. was never disclosed to the trial court. The decision not to disclose their identity – in effect, to have anonymous evidence introduced at the trial – was not taken by a judicial authority but by the Rhineland-Palatinate Ministry for the Interior (paragraph 17), the Trier Regional Court’s competence being limited to deciding whether the reasons given for the Ministry’s decision were arbitrary or manifestly unlawful (paragraph 20). At paragraph 56 it is suggested that the applicant could have contested the “lawfulness” of the Ministry’s declaration before the administrative courts. Apart from the fact that “lawfulness” is a very narrow ground of judicial review, it is significant that the respondent Government did not raise the issue of non-exhaustion of domestic remedies, which itself suggests that such judicial review would not have been an adequate remedy for the applicant in respect of his complaints. 5. Even if one were to apply ad unguem the criteria set forth in Al‑Khawaja and Tahery, the instant case fails the test on two scores. 6. At paragraph 125 of Al-Khawaja and Tahery it is stated as follows: “Finally, given the extent to which the absence of a witness adversely affects the rights of the defence, the Court would emphasise that, when a witness has not been examined at any prior stage of the proceedings, allowing the admission of a witness statement in lieu of live evidence at trial must be a measure of last resort. Before a witness can be excused from testifying on grounds of fear, the trial court must be satisfied that all available alternatives, such as witness anonymity and other special measures, would be inappropriate or impracticable.” 7. The Trier Regional Court had, to its credit, attempted to arrange for S. and C. to give evidence and be cross-examined through a video‑conferencing procedure, which would have included acoustic and optical shielding (see paragraph 19). Even this procedure was effectively blocked by the Ministry, the purported reason being that such a procedure “could not exclude S. and C.’s identification by their figure, by their gestures and language used or by the disclosure of details permitting the detection of their identity in the course of questioning by the defence”. Remarkably, the Trier Regional Court seems to have accepted this reasoning. Apart from the fact that it could have ensured that no questions were put by the defence to the “acoustically and optically shielded” witnesses with a view to eliciting information as to their true identity, one fails to understand why this method of cross-examination was also discarded. S. and C. were not unknown to the applicant – it was only their true identity which was unknown. It cannot, therefore, be said that all available alternatives (paragraph 46) were exhausted. Moreover it is not at all clear why a commissioned judge (mentioned in paragraph 19) or other judicial authority could not have access to S. in the absence of the applicant’s lawyers (whereas supervising police officer K. could, see paragraph 8, below). 8. Secondly, and more crucially, the “main counterbalancing factor for the restriction of the applicant’s defence rights” (paragraph 60) is made out to be the applicant’s possibility of putting questions in writing to S. These questions would then have been relayed through S.’s supervising police officer, K. (himself a prosecution witness), who would report back to the court. K. is a police officer, part of the “prosecution side”, and moreover the person who orchestrated the whole sting operation; he was the person with the utmost interest in securing a conviction in this case. S. is a prosecution witness. We find it remarkable that the Trier Regional Court – which actually availed itself of K.’s “services” – should consider such an “all‑in‑the‑family” procedure to be safe. Not surprisingly the applicant refused to avail himself of this procedure. 9. For these reasons we are of the view that there has been, in the present case, a violation of Article 6 § 1 read in conjunction with Article 6 § 3 (d).

FOURTH SECTION CASE OF PRZYBYLSKA-CONROY v. POLAND (Application no. 49490/08) JUDGMENT This version was rectified on 6 July 2010 under Rule 81 of the Rules of the Court STRASBOURG 18 May 2010 FINAL 18/08/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Przybylska-Conroy v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,Giovanni Bonello,Ljiljana Mijović,Ján Šikuta,Mihai Poalelungi,Nebojša Vučinić, judges,and Lawrence Early, Section Registrar, Having deliberated in private on 27 April 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 49490/08) 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, Ms Grace Przybylska-Conroy (“the applicant”), on 1 October 2008. 2. The applicant was represented by Mr J. Pruchniewski, a lawyer practising in Poznań. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. 3. On 8 June 2009 the President of the Fourth Section of the Court decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3). 4. On 23 December 2009 the Government submitted a unilateral declaration and invited the Court to strike out the application, in accordance with Article 37 of the Convention. The applicant filed an objection. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1957 and lives in New York, USA. A. Main proceedings [civil proceedings for division of matrimonial property] 6. On 19 January 1987 the applicant lodged a request for the division of matrimonial property with the Poznań District Court (Sąd Rejonowy). 7. A hearing, held on 14 December 1987, was adjourned to give the parties an opportunity to settle the case. However, they apparently failed to do so and on 13 April 1988 the first hearing on the merits was held. 8. Between 18 May 1988 and 26 April 1993, the District Court scheduled 21 hearings, 13 of which were adjourned mostly due to the failure of witnesses to appear or for lack of documents which the parties were expected to supply. During that period the court asked experts to prepare six opinions and supplementary opinions on the value of the matrimonial property. 9. In the meantime, on 2 February 1993, the case was assigned to another judge. 10. Between 1 July 1993 and 28 May 2004 the District Court scheduled 49 hearings, 28 of which were adjourned. One hearing was adjourned due to the failure of the applicant to appear. During that period the court asked experts to prepare 10 reports and supplementary opinions on the value of the matrimonial property. 11. On 4 June 2004 the Poznań District Court gave a decision. The applicant appealed. 12. On 21 March 2006 the Poznań Regional Court (Sąd Okręgowy) partly quashed the first-instance decision and remitted the case. 13. Between 13 November 2006 and 18 February 2008 the District Court scheduled 6 hearings, during which the witnesses and the applicant were heard. 14. On 17 March 2008 the Poznań District Court gave a decision. The applicant appealed. 15. On 22 December 2008 the Poznań Regional Court dismissed the appeal.[1] B. Proceedings under the 2004 Act 16. On 29 February 2008 the applicant lodged with the Poznań Regional Court a complaint under section 5 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) which entered into force on 17 September 2004. She sought a ruling declaring that the length of the proceedings before the Poznań District Court had been excessive and an award of just satisfaction in the amount of 10,000 Polish zlotys (PLN) (approx. 2,500 euros (EUR)). 17. On 29 April 2008 the Poznań Regional Court dismissed her complaint. It limited its examination of the length of the proceedings to the period after 15 November 2005. On that date the Poznań Regional Court had analysed the conduct of the District Court following the complaint lodged by the applicant's former husband ‑ the other party to the proceedings. The excessive length of the proceedings in question had been acknowledged and just satisfaction in the amount of 4,000 Polish zlotys (PLN) (approx. 1,000 euros (EUR)) was granted to him. Having analysed the conduct of the District Court during the period after 15 November 2005, the Regional Court found that the proceedings had been conducted with due diligence and within a reasonable time. The court stressed that the conduct of the District Court could not be analysed twice, especially since there had been no undue delay after this date. II. RELEVANT DOMESTIC LAW AND PRACTICE 18. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court's decisions in cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII, and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V. THE LAW I. THE GOVERNMENT'S REQUEST TO STRIKE OUT THE APPLICATION UNDER ARTICLE 37 OF THE CONVENTION 19. On 23 December 2009 the Government submitted a unilateral declaration similar to that in the case of Tahsin Acar v. Turkey ((preliminary objection) [GC], no. 26307/95, ECHR 2003-VI) and informed the Court that they were ready to accept that there had been a violation of the applicant's rights under Article 6 § 1 of the Convention as a result of the unreasonable length of the proceedings, in which the applicant had been involved. In respect of non-pecuniary damage the Government proposed to award PLN 25,000 to the applicant (the equivalent of approx. 6,250 euros (EUR)). The Government invited the Court to strike out the application in accordance with Article 37 of the Convention. 20. The applicant did not agree with the Government's proposal. She considered that the amount proposed did not constitute sufficient just satisfaction for the damage she had sustained and requested the Court to continue the examination of the application. 21. The Court observes that, as it has already held on many occasions, it may be appropriate under certain circumstances to strike out an application or part of an application under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration by the respondent Government even if the applicant wishes the examination of the case to be continued. It will depend on the particular circumstances whether the unilateral declaration offers a sufficient basis for finding that respect for human rights as defined in the Convention and its Protocols does not require the Court to continue its examination of the case (see Tahsin Acar, cited above, § 75; and Melnic v. Moldova, no. 6923/03, § 22, 14 November 2006). 22. According to the Court's case-law, the amount proposed in a unilateral declaration may be considered a sufficient basis for striking out an application or part thereof. The Court will have regard in this connection to the compatibility of the amount with its own awards in similar length of proceedings cases, bearing in mind the principles which it has developed for determining victim status and for assessing the amount of non-pecuniary compensation to be awarded where it has found a breach of the reasonable time requirement (see Cocchiarella v. Italy [GC], no. 64886/01, §§ 85-107, ECHR 2006-...; Scordino v. Italy (no.1) [GC], no. 36813/97, §§ 193-215, ECHR 2006-...; and Dubjakova v. Slovakia (dec.), no. 67299/01, 10 October 2004). 23. On the facts and for the reasons set out above, in particular the amount of compensation proposed, which is substantially less than the Court would have awarded in similar cases, the Court finds that the Government failed to submit a statement offering a sufficient basis for finding that respect for human rights as defined in the Convention and its Protocols does not require the Court to continue its examination of the case (see, by contrast, Spółka z o.o. WAZA v. Poland (striking out), no. 11602/02, 26 June 2007). 24. This being so, the Court rejects the Government's request to strike the application out of its list of cases under Article 37 of the Convention and will accordingly pursue the examination of the admissibility and merits of the case. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE UNREASONABLE LENGTH OF THE PROCEEDINGS 25. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 26. The Government contested that argument. 27. The Court notes that the proceedings commenced on 19 January 1987. However, the period to be taken into consideration began only on 1 May 1993, when the recognition by Poland of the right of individual petition took effect. Nevertheless, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings at the time. The period in question ended on 22 December 2008. It thus lasted almost fifteen years and eight months for two levels of jurisdiction.[2] A. Admissibility 28. 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 29. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 30. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above). Furthermore, the Court considers that, in dismissing the applicant's complaint that the proceedings in her case exceeded a reasonable time, the Poznań Regional Court failed to apply standards which were in conformity with the principles embodied in the Court's case-law (see Majewski v. Poland, no. 52690/99, § 36, 11 October 2005). In particular, the Court observes that the court failed to consider the length of the proceedings preceding the date of the decision given as to the merits of the complaint filed under the 2004 Act by the applicant's former husband, the other party to the dispute (see paragraph 17 above). 31. Having examined all the material submitted to it, the Court finds that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 32. 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 33. The applicant claimed PLN 35,000 Polish zlotys (the equivalent of approx. 8,750 euros (EUR)) in respect of non-pecuniary damage. 34. The Government contested the claim. 35. The Court, ruling on an equitable basis and having regard to the amount of compensation awarded to the applicant at the domestic level, considers that it should award the full sum claimed. B. Costs and expenses 36. The applicant also claimed PLN 4,880 Polish zlotys (the equivalent of approx. EUR 1,220) for the costs and expenses incurred before the Court, namely the legal representative's fee. Further, she claimed PLN 2,610.80 Polish zlotys (the equivalent of approx. EUR 652) in translation fees, enclosing relevant invoices (concerning documents submitted with the Court). 37. The Government contested these claims, alleging in particular that a professional lawyer representing the applicant in the proceedings before the Court, who took upon himself a duty of pleading before the international court for which he is remunerated, should not claim reimbursement of translation fees. 38. 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 were reasonable as to quantum. 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 1,500 covering costs of legal representation and translation of documents submitted to the Court. C. Default interest 39. 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 1. Dismisses the Government's request to strike the case out of the list; 2. Declares the application admissible; 3. Holds that there has been a violation of Article 6 § 1 of the Convention; 4. 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 8,750 (eight thousand seven hundred and fifty euros) in respect of non-pecuniary damage and EUR 1,500 (one thousand five hundred euros) in respect of costs and expenses, plus any tax that may be chargeable to be converted into the currency of the respondent State 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. Done in English, and notified in writing on 18 May 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyNicolas BratzaRegistrarPresident [1]. Rectified on 6 July 2010. The original text read as follows: “The proceedings are currently still pending before the appellate court.” [2]. Rectified on 6 July 2010. The original text read as follows: “The period in question has not yet ended. It had thus already lasted on the last-mentioned date almost seventeen years for two levels of jurisdiction.”

SECOND SECTION CASE OF LÁSZLÓ MOLNÁR v. HUNGARY (Application no. 41063/07) JUDGMENT STRASBOURG 15 March 2011 This judgment is final but it may be subject to editorial revision. In the case of László Molnár v. Hungary, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Ireneu Cabral Barreto, President,Dragoljub Popović,András Sajó, judges,and Françoise Elens-Passos, Deputy Section Registrar, Having deliberated in private on 22 February 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 41063/07) against the Republic of Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Mr László Molnár (“the applicant”), on 20 September 2007. 2. The applicant was represented by Ms M. Czeglédy, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Agent, Ministry of Public Administration and Justice. 3. On 5 May 2010 the President of the Second Section decided to give notice of the application to the Government. In accordance with Protocol No. 14, the application was allocated to a Committee of three Judges. THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1942 and lives in Budapest. 5. On 15 September 1989 the applicant brought an action against a private individual before the Pest Central District Court, seeking to recover the possession of some specific movable property. 6. After several hearings, a judgment was delivered on 19 November 1992, which was quashed by the Budapest Regional Court on 14 September 1993. 7. In the resumed proceedings several forensic expert opinions were obtained. Two hearings had to be rescheduled as the applicant and his representative failed to appear, despite having been duly summoned. On 3 June 2004 the District Court delivered a judgment. On 11 October 2004 the Budapest Regional Court remitted the case. 8. The District Court delivered a partial judgment on 12 April 2006, which was decided on appeal by the Regional Court on 22 March 2007. 9. In respect of the respondent's counterclaim, the first-instance court delivered a judgment on 7 July 2006 which was upheld by the Regional Court on 22 March 2007. THE LAW 10. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement of Article 6 § 1 of the Convention. The Government contested this view. 11. The Court observes that the period to be taken into consideration began only on 5 November 1992, when the recognition by Hungary of the right of individual petition took effect. However, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings at the time. The Court notes that the case had been pending for three years and one month on that date. The period in question ended on 22 March 2007. It thus lasted altogether seventeen years and six months before two levels of jurisdiction, out of which fourteen years and four months following ratification of the Convention by Hungary. 12. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present application (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or convincing argument capable of persuading it to reach a different conclusion in the present circumstances. Having regard to its case-law on the subject, the Court considers that the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. 13. Relying on Article 41 of the Convention, the applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage. The Government contested the claim. The Court considers that the applicant must have sustained some non-pecuniary damage and awards him EUR 14,400 under this head. 14. The applicant also claimed EUR 5,500 for the costs and expenses incurred before the domestic courts and the Court. The Government did not express an opinion on the matter. Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the applicant the sum of EUR 1,000 in respect of all costs incurred. 15. 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 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Hungarian forints at the rate applicable at the date of settlement: (i) EUR 14,400 (fourteen thousand four hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, 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; 4. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 15 March 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Françoise Elens-PassosIreneu Cabral Barreto Deputy RegistrarPresident

SECOND SECTION CASE OF OTGON v. THE REPUBLIC OF MOLDOVA (Application no. 22743/07) JUDGMENT STRASBOURG 25 October 2016 FINAL 25/01/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Otgon v. the Republic of Moldova, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Işıl Karakaş, President,Nebojša Vučinić,Paul Lemmens,Valeriu Griţco,Jon Fridrik Kjølbro,Stéphanie Mourou-Vikström,Georges Ravarani, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 13 September 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 22743/07) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Moldovan national, Ms Svetlana Otgon (“the applicant”), on 20 April 2007. 2. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu. 3. The applicant alleged, in particular, that she had received insufficient compensation for an established violation of her rights under Article 8 of the Convention. 4. On 30 November 2009 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1963 and lives in Călărași. 6. On 26 October 2005 the applicant and her daughter drank water from taps in their apartment and shortly thereafter they felt unwell. On 29 October 2005 the applicant’s daughter, who was twelve at the time, was admitted to hospital with a diagnosis of “serious acute dysentery”. The applicant was admitted to hospital with the same diagnosis on 31 October 2005. She was released from hospital on 13 November 2005, a day later than her daughter. 7. The applicant lodged a court action against the local utilities provider (“the provider”), a State-owned company, claiming 100,000 Moldovan lei (“MDL”, approximately 6,700 euros (EUR) at the time) in compensation for the harm caused to her health and for the related inconveniences, including subsequent investigations and disinfection. 8. On 1 March 2006 the Călăraşi District Court found in her favour. It found that various sanitary, medical and technical reports had established that in the vicinity of the applicant’s apartment block the sewage pipe was situated above the drinking water pipe and was leaking. The water pipe had cracked on 26 October 2005 and sewage water had infiltrated the drinking water pipe. The court also established that the pipes had been used since 1977 and that their expected lifespan was fifteen years. A total of five people, all of whom had drunk water from taps connected to the same water pipe, had been admitted to hospital with the same diagnosis at approximately the same time as the applicant. Taking into consideration such elements as the amount of physical and mental suffering caused to the applicant and her daughter, the court awarded her MDL 10,000 (approximately EUR 648 at the time). 9. The parties appealed. On 26 April 2006 the Chişinău Court of Appeal rejected the applicant’s appeal and partly accepted the provider’s appeal. It reduced the award to MDL 5,000 (EUR 310) because it found exaggerated “both the sum claimed by [the applicant] and that awarded to [her]”. 10. The parties appealed. On 25 October 2006 the Supreme Court of Justice upheld the judgment of 26 April 2006. It found that the lower court had taken into consideration the nature and seriousness of the mental suffering caused to the applicant, as well as the degree of guilt of the defendant. That judgment was final. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 11. The applicant complained that her health had been endangered as a result of having drunk contaminated water. She considered that there had been a violation of Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 12. The Court notes that the application 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’ submissions 13. The applicant submitted that although the domestic courts had found a violation of her rights, the award made in her favour had been too small to compensate for the physical and mental suffering caused to her and her family. Moreover, she submitted documents confirming that she had continued to have health problems after the events of 2005, such as an acute ulcer, chronic cholecystitis, uncompensated hypothyroidism and a metabolic disorder. She had been regularly treated since then for these conditions. 14. The Government submitted that the domestic courts had in essence established a violation of the applicant’s rights under Article 8 of the Convention. Moreover, they had decided the amount of compensation based on their direct knowledge of the case and on the basis of the parties’ arguments and evidence. The applicant had been awarded compensation in respect of this breach of Article 8 and consequently no longer had victim status. The award made by the domestic courts had been reasonable in the light of the relatively short period of the applicant’s in-patient treatment and the lack of evidence of any long-lasting effects on the applicant. 2. The Court’s assessment 15. As the Court has had previous occasion to remark, the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers, inter alia, the physical and psychological integrity of a person (see, for instance, X and Y v. the Netherlands, 26 March 1985, § 22, Series A no. 91, Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002‑III and G.B. and R.B. v. the Republic of Moldova, no. 16761/09, § 29, 18 December 2012). It has also found that “there is no explicit right in the Convention to a clean and quiet environment, but where an individual is directly and seriously affected by noise or other pollution, an issue may arise under Article 8” (see, for instance, Powell and Rayner v. the United Kingdom, 21 February 1990, § 40, Series A no. 172, López Ostra v. Spain, 9 December 1994, § 51, Series A no. 303‑C, Guerra and Others v. Italy, 19 February 1998, § 57, Reports of Judgments and Decisions 1998‑I and Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 96, ECHR 2003‑VIII). Moreover, “Article 8 may apply in environmental cases whether the pollution is directly caused by the State or whether State responsibility arises from the failure to regulate private industry properly. Whether the case is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants’ rights under paragraph 1 of Article 8 or in terms of an interference by a public authority to be justified in accordance with paragraph 2, the applicable principles are broadly similar” (Hatton and Others, cited above, § 98). 16. The Court recalls that it falls first to the national authorities to redress any alleged violation of the Convention. The question whether a person may still claim to be the victim of an alleged violation of the Convention essentially entails on the part of the Court an ex post facto examination of his or her situation. A decision or measure of the domestic authorities favourable to the applicant is not in principle sufficient to deprive her of her status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, for instance, Ciorap v. Moldova (no. 2), no. 7481/06, § 18, 20 July 2010). The question whether the victim of a violation of the Convention has received reparation for the damage caused – comparable to just satisfaction as provided for under Article 41 of the Convention – is an important issue. It is the Court’s settled case-law that where the national authorities have found a violation and their decision constitutes appropriate and sufficient redress, the party concerned can no longer claim to be a victim within the meaning of Article 34 of the Convention (see Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 179-181, ECHR 2006‑V). 17. In the present case, the Court notes that the parties did not dispute the domestic courts’ findings concerning the violation of the applicant’s rights by the State-owned company. Considering the materials in the file, the Court finds that an interference with the applicant’s rights protected under Article 8 of the Convention has taken place since her physical integrity has been affected by an unhealthy environment (see paragraph 15 above). In assessing whether the Moldovan authorities discharged their positive obligation under that provision, the Court notes that the domestic courts provided a remedy in the form of establishing the company’s responsibility and awarding compensation. Without expressly relying on the Convention but referring to the in-hospital treatment and the physical and mental suffering caused to the applicant (see paragraph 8 above), those courts’ judgments could be interpreted as finding in fact a breach of the applicant’s Article 8 rights, as also argued by the Government (see paragraph 14 above). The Court sees no reason to depart from those findings in this respect. 18. The only issue which remains to be determined is the amount of compensation. The first-instance court awarded the applicant the equivalent of EUR 648 in respect of non-pecuniary damage, referring to such criteria as the amount of physical and mental suffering caused (see paragraph 8 above). While confirming the findings of the first-instance court, the higher court halved the award made and the Supreme Court of Justice upheld that reduced award. The higher courts relied on the same elements (degree of harm), but arrived at a different conclusion concerning the amount to be awarded. No specific reasons were given for this reduction, except a reference to the degree of responsibility of the defendant. 19. The Court takes into account the Government’s argument concerning the relatively short period of in-patient treatment and the absence of evidence of long-term effects on the applicant. Nevertheless, she was kept in hospital for two weeks, which implies that she sustained a certain degree of mental and physical suffering. Moreover, it considers that the sum awarded by the domestic courts is considerably below the minimum generally awarded by the Court in cases in which it has found a violation of Article 8 in respect of the Republic of Moldova, even taking into account the differences between these decisions. 20. In the light of the foregoing, the Court considers that the applicant can still claim to be a victim of a violation of Article 8 of the Convention. Furthermore, in the light of the conclusions of the domestic courts, it finds that there has been a violation of Article 8. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 21. 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 22. The applicant claimed EUR 50,000 in respect of non-pecuniary damage. 23. The Government disagreed, arguing that this amount was unfounded and that the claim should thus be dismissed. 24. Having regard to the violation found above and the award made in the applicant’s favour by the domestic courts, the Court considers that an award of compensation for non-pecuniary damage is justified in this case. Making its assessment on an equitable basis, the Court awards the applicant EUR 4,000. B. Costs and expenses 25. The applicant made no claim in this respect. C. Default interest 26. 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 1. Declares, by a majority, the application admissible; 2. Holds, by six votes to one, that there has been a violation of Article 8 of the Convention; 3. Holds, by six votes to one (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, the sum of EUR 4,000 (four thousand euros), to be converted into Moldovan lei 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 25 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithIşıl KarakaşRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Lemmens is annexed to this judgment. A.I.K.S.H.N. DISSENTING OPINION OF JUDGE LEMMENS 1. To my regret, I am unable to agree with the majority’s finding that there has been a violation of Article 8 of the Convention in the present case. In my opinion, Article 8 is not applicable and the complaint should have been declared incompatible ratione materiae with the Convention. 2. The case concerns the effects caused on the applicant’s health by drinking contaminated water from the tap. The domestic courts found that the water distributing company had committed a wrongful act and ordered it to pay damages. The applicant is not satisfied with the amount awarded. In her appeal to the Supreme Court of Justice, she invoked the constitutional right to a healthy environment in order to challenge the amount of the compensation awarded. It does not seem that at the domestic level she ever complained about an infringement of the right to respect for her private life. This is therefore essentially a case about the right to compensation for a civil tort. 3. The majority considers that Article 8 of the Convention comes into play because the applicant’s “physical integrity has been affected by an unhealthy environment” (see paragraph 17 of the judgment). It is true that the concept of private life covers the physical –and psychological- integrity of a person (see paragraph 15 of the judgment; see further, by way of example, X and Y v. the Netherlands, 26 March 1985, § 22, Series A no. 91; Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002‑III; A, B and C v. Ireland [GC], no. 25579/05, § 212, ECHR 2010; and Nada v. Switzerland [GC], no. 10593/08, § 151, ECHR 2012). However, I do not think that this means that any damage to a person’s health attracts the applicability of Article 8. For that provision to be applicable, I tend to believe that there should be repercussions on the affected person’s private life. It seems to me that in the present case no such repercussions have been put forward (compare, for example, Fadeyeva v. Russia, no. 55723/00, § 88, ECHR 2005‑IV, where the applicant’s health had deteriorated as a result of her prolonged exposure to an unhealthy situation, thus making her vulnerable to certain health problems). It is also true that “where an individual is directly and seriously affected by noise or other pollution, an issue may arise under Article 8” (paragraph 15 of the judgment; see further, by way of example, Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 96, ECHR 2003‑VIII; Zammit Maempel v. Malta, no. 24202/10, § 36, 22 November 2011; Bor v. Hungary, no. 50474/08, § 24, 18 June 2013; and Udovičić v. Croatia, no. 27310/09, § 137, 24 April 2014). Again, in my opinion, not every damage that relates to the environment attracts the applicability of Article 8. For that provision to be applicable, there should be a situation of nuisance which affects the person in his or her private life (see Powell and Rayner v. the United Kingdom, 21 February 1990, § 40, Series A no. 172; López Ostra v. Spain, 9 December 1994, § 51, Series A no. 303‑C; and Taşkın and Others v. Turkey, no. 46117/99, § 113, ECHR 2004‑X; see also Kyrtatos v. Greece, no. 41666/98, § 52, ECHR 2003‑VI (extracts); and Ivan Atanasov v. Bulgaria, no. 12853/03, § 66, 2 December 2010). Moreover, the nuisance must attain a certain minimum level (Mileva and Others v. Bulgaria, nos. 43449/02 and 21475/04, § 90, 25 November 2010; Zammit Maempel, cited above, § 37; Hardy and Maile v. the United Kingdom, no. 31965/07, § 188, 14 February 2012; and Dzemyuk v. Ukraine, no. 42488/02, § 77, 4 September 2014). In the present case there has been only one incident, and it has not been demonstrated that the illness has affected the applicant in the quality of her private life, except for the period spent in the hospital (see paragraph 19 of the judgment). While I do not question that the applicant has been seriously ill, I do not see the effects on her private life. 4. To conclude, thanks to a very generous interpretation of the notion of private life, this case has been “upgraded” from an ordinary torts case to a case raising an issue under Article 8. While I have sympathy for the applicant, from a purely legal point of view I would have preferred a more restrained approach to the scope of application of Article 8.

FOURTH SECTION CASE OF OLIARI AND OTHERS v. ITALY (Applications nos. 18766/11 and 36030/11) JUDGMENT STRASBOURG 21 July 2015 FINAL 21/10/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Oliari and Others v. Italy, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Päivi Hirvelä, President,Guido Raimondi,Ledi Bianku,Nona Tsotsoria,Paul Mahoney,Faris Vehabović,Yonko Grozev, judges,and Françoise Elens-Passos, Section Registrar, Having deliberated in private on 30 June 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in two applications (nos. 18766/11 and 36030/11) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by six Italian nationals, Mr Enrico Oliari, Mr A., Mr Gian Mario Felicetti, Mr Riccardo Perelli Cippo, Mr Roberto Zaccheo and Mr Riccardo Zappa (“the applicants”), on 21 March and 10 June 2011 respectively. 2. The first two applicants were represented by Mr A. Schuster, a lawyer practising in Trent. The remaining applicants were represented by Ms M. D’Amico, Mr M. Clara and Mr C. Pitea, lawyers practising in Milan. The Italian Government (“the Government”) were represented by their Agent, Ms Ersiliagrazia Spatafora. 3. The applicants complained that the Italian legislation did not allow them to get married or enter into any other type of civil union and thus they were being discriminated against as a result of their sexual orientation. They cited Articles 8, 12 and 14 of the Convention. 4. On 3 December 2013 the Chamber to which the case was allocated decided that the complaints concerning Article 8 alone and in conjunction with Article 14 were to be communicated to the Government. It further decided that the applications should be joined. 5. On 7 January 2013 the Vice-President of the Section to which the case had been allocated decided to grant anonymity to one of the applicants under Rule 47 § 3 of the Rules of Court. 6. Written observations were also received from FIDH, AIRE Centre, ILGA-Europe, ECSOL, UFTDU and UDU jointly, Associazione Radicale Certi Diritti, and ECLJ (European Centre for Law and Justice), which had been given leave to intervene by the Vice-President of the Chamber (Article 36 § 2 of the Convention). Mr Pavel Parfentev on behalf of seven Russian NGOS (Family and Demography Foundation, For Family Rights, Moscow City Parents Committee, Saint-Petersburg City Parents Committee, Parents Committee of Volgodonsk City, the regional charity “Svetlitsa” Parents’ Culture Centre, and the “Peterburgskie mnogodetki” social organisation), and three Ukrainian NGOS (the Parental Committee of Ukraine, the Orthodox Parental Committee, and the Health Nation social organisation), had also been given leave to intervene by the Vice-President of the Chamber. However, no submissions have been received by the Court. 7. The Government objected to the observations submitted by FIDH, AIRE Centre, ILGA-Europe, ECSOL, UFTDU and UDU jointly, as they had reached the Court after the set deadline, namely on 27 March 2014 instead of 26 March 2014. The Court notes that at the relevant time the Vice-President of the Chamber did not take a decision to reject the submissions presented, which were in fact sent to the parties for comment. The Court, having considered that the observations were anticipated by e‑mail and received by the Court at 2.00 a.m. on 27 March 2014, and that the hard copy received by fax later that day contained an apology as well as an explanation for the delay, rejects the Government’s objection. 8. The applicants in application no. 18766/11 requested that an oral hearing be held in the case. On 30 June 2015 the Court considered this request. It decided that having regard to the materials before it an oral hearing was not necessary. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 9. The details concerning the applicants may be found in the Annex. The background to the case 1. Mr Oliari and Mr A. 10. In July 2008 these two applicants, who were in a committed stable relationship with each other, declared their intention to marry, and requested the Civil Status Office of the Trent Commune to issue the relevant marriage banns. 11. On 25 July 2008 their request was rejected. 12. The two applicants challenged the decision before the Trent Tribunal (in accordance with Article 98 of the Civil Code). They argued that Italian law did not explicitly prohibit marriage between persons of the same sex, and that, even if that were the case, such a position would be unconstitutional. 13. By a decision of 24 February 2009 the Trent Tribunal rejected their claim. It noted that the Constitution did not establish the requirements to contract marriage, but the Civil Code did and it precisely provided that one such requirement was that spouses be of the opposite sex. Thus, a marriage between persons of the same sex lacked one of the most essential requirements to render it a valid legal act, namely a difference in sex between the parties. In any event there was no fundamental right to marry, neither could the limited law provisions constitute discrimination, since the limitations suffered by the applicants were the same as those applied to everyone. Furthermore, it noted that European Union (“EU”) law left such rights to be regulated within the national order. 14. The applicants appealed to the Trent Court of Appeal. While the court reiterated the unanimous interpretation given to Italian law in the field, namely to the effect that ordinary law, particularly the Civil Code, did not allow marriage between people of the same sex, it considered it relevant to make a referral to the Constitutional Court in connection with the claims of unconstitutionality of the law in force. 15. The Italian Constitutional Court in judgment no. 138 of 15 April 2010 declared inadmissible the applicants’ constitutional challenge to Articles 93, 96, 98, 107, 108, 143, 143 bis and 231 of the Italian Civil Code, as it was directed to the obtainment of additional norms not provided for by the Constitution (diretta ad ottenere una pronunzia additiva non costituzionalmente obbligata). 16. The Constitutional Court considered Article 2 of the Italian Constitution, which provided that the Republic recognises and guarantees the inviolable rights of the person, as an individual and in social groups where personality is expressed, as well as the duties of political, economic and social solidarity against which there was no derogation. It noted that by social group one had to understand any form of community, simple or complex, intended to enable and encourage the free development of any individual by means of relationships. Such a notion included homosexual unions, understood as a stable cohabitation of two people of the same sex, who have a fundamental right to freely express their personality in a couple, obtaining – in time and by the means and limits to be set by law – juridical recognition of the relevant rights and duties. However, this recognition, which necessarily requires general legal regulation aimed at setting out the rights and duties of the partners in a couple, could be achieved in other ways apart from the institution of marriage between homosexuals. As shown by the different systems in Europe, the question of the type of recognition was left to regulation by Parliament, in the exercise of its full discretion. Nevertheless, the Constitutional Court clarified that without prejudice to Parliament’s discretion, it could however intervene according to the principle of equality in specific situations related to a homosexual couple’s fundamental rights, where the same treatment of married couples and homosexual couples was called for. The court would in such cases assess the reasonableness of the measures. 17. It went on to consider that it was true that the concepts of family and marriage could not be considered “crystallised” in reference to the moment when the Constitution came into effect, given that constitutional principles must be interpreted bearing in mind changes in the legal order and the evolution of society and its customs. Nevertheless, such an interpretation could not be extended to the point where it affected the very essence of legal norms, modifying them in such a way as to include phenomena and problems which had not been considered in any way when it was enacted. In fact it appeared from the preparatory work to the Constitution that the question of homosexual unions had not been debated by the assembly, despite the fact that homosexuality was not unknown. In drafting Article 29 of the Constitution, the assembly had discussed an institution with a precise form and an articulate discipline provided for by the Civil Code. Thus, in the absence of any such reference, it was inevitable to conclude that what had been considered was the notion of marriage as defined in the Civil Code, which came into effect in 1942 and which at the time, and still today, established that spouses had to be of the opposite sex. Therefore, the meaning of this constitutional precept could not be altered by a creative interpretation. In consequence, the constitutional norm did not extend to homosexual unions, and was intended to refer to marriage in its traditional sense. 18. Lastly, the court considered that, in respect of Article 3 of the Constitution regarding the principle of equality, the relevant legislation did not create unreasonable discrimination, given that homosexual unions could not be considered equivalent to marriage. Even Article 12 of the European Convention on Human Rights and Article 9 of the Charter of Fundamental Rights did not require full equality between homosexual unions and marriages between a man and a woman, as this was a matter of Parliamentary discretion to be regulated by national law, as evidenced by the different approaches existing in Europe. 19. In consequence of the above judgment, by a decision (ordinanza) lodged in the relevant registry on 21 September 2010 the Court of Appeal rejected the applicants’ claims in full. 2. Mr Felicetti and Mr Zappa 20. In 2003 these two applicants met and entered into a relationship with each other. In 2004 Mr Felicetti decided to undertake further studies (and thus stopped earning any income), a possibility open to him thanks to the financial support of Mr Zappa. 21. On 1 July 2005 the couple moved in together. In 2005 and 2007 the applicants wrote to the President of the Republic highlighting difficulties encountered by same-sex couples and soliciting the enactment of legislation in favour of civil unions. 22. In 2008 the applicants’ physical cohabitation was registered in the authorities’ records. In 2009 they designated each other as guardians in the event of incapacitation (amministratori di sostegno). 23. On 19 February 2011 they requested their marriage banns to be issued. On 9 April 2011 their request was rejected on the basis of the law and jurisprudence pertaining to the subject matter (see Relevant domestic law below). 24. The two applicants did not pursue the remedy provided for under Article 98 of the Civil Code, in so far as it could not be considered effective following the Constitutional Court pronouncement mentioned above. 3. Mr Perelli Cippo and Mr Zacheo 25. In 2002 these two applicants met and entered into a relationship with each other. In the same year they started cohabiting and since then they have been in a committed relationship. 26. In 2006 they opened a joint bank account. 27. In 2007 the applicants’ physical cohabitation was registered in the authorities’ records. 28. On 3 November 2009 they requested that their marriage banns be issued. The person in charge at the office did not request them to fill in the relevant application, simply attaching their request to a number of analogous requests made by other couples. 29. On 5 November 2009 their request was rejected on the basis of the law and jurisprudence pertaining to the subject matter (see Relevant domestic law below). 30. Mr Perelli Cippo and Mr Zacheo challenged the decision before the Milan Tribunal. 31. By a decision (decreto) of 9 June 2010 lodged in the relevant registry on 1 July 2010 the Milan Tribunal rejected their claim, considering that it was legitimate for the Civil Status Office to refuse a request to have marriage banns issued for the purposes of a marriage between persons of the same sex, in line with the finding of the Constitutional Court judgment no. 138 of 15 April 2010. 32. The applicants did not lodge a further challenge (reclamo) under Article 739 of the Code of Civil Procedure, in so far as it could not be considered effective following the Constitutional Court pronouncement. II. RELEVANT DOMESTIC LAW AND INTERNATIONAL LAW AND PRACTICE A. Relevant domestic law and practice 1. The Italian Constitution 33. Articles 2, 3 and 29 of the Italian Constitution read as follows: Article 2 “The Republic recognises and guarantees inviolable human rights, both as an individual and in social groups where personality is developed, and requires the fulfilment of obligations of political, economic, social solidarity, against which there is no derogation.” Article 3 “All citizens have equal social dignity and are equal before the law, without distinction of sex, race, language, religion, political opinion, personal and social conditions. It is the duty of the Republic to remove those obstacles of an economic or social nature which constrain the freedom and equality of citizens, thereby impeding the full development of the human person and the effective participation of all workers in the political, economic and social organization of the country.” Article 29 “The Republic recognises the rights of the family as a natural society founded on marriage. Marriage is based on the moral and legal equality of the spouses within the limits laid down by law to guarantee the unity of the family.” 2. Marriage 34. Under Italian domestic law, same-sex couples are not allowed to contract marriage, as affirmed in the Constitutional Court judgment no. 138 (mentioned above). 35. The same has been affirmed by the Italian Court of Cassation in its judgment no. 4184 of 15 March 2012 concerning two Italian citizens of the same sex who got married in the Netherlands and who had challenged the refusal of Italian authorities to register their marriage in the civil status record on the ground of the “non-configurability as a marriage”. The Court of Cassation concluded that the claimants had no right to register their marriage, not because it did not exist or was invalid, but because of its inability to produce any legal effect in the Italian order. It further held that persons of the same sex living together in a stable relationship had the right to respect for their private and family life under Article 8 of the European Convention; therefore, in the exercise of the right to freely live their inviolable status as a couple they may bring an action before a court to claim, in specific situations related to their fundamental rights, the same treatment as that afforded by law to married couples. 36. Furthermore, the Constitutional Court in its judgment no. 170/2014 concerning “forced divorce” following gender reassignment of one of the spouses, found that it was for the legislator to ensure that an alternative to marriage was provided, allowing such a couple to avoid the transformation in their situation, from one of maximum legal protection to an absolutely uncertain one. The Constitutional Court went on to state that the legislator had to act promptly to resolve the legal vacuum causing a lack of protection for the couple. 3. Other relevant case-law in the context of same-sex couples 37. In a case before the Tribunal of Reggio Emilia, the claimants (a same-sex couple) had not requested the tribunal to recognise their marriage entered into in Spain, but to recognise their right to family life in Italy, on the basis that they were related. The Tribunal of Reggio Emilia, by means of an ordinance of 13 February 2012, in the light of the EU directives and their transposition into Italian law, as well as the EU Charter of Fundamental Rights, considered that such a marriage was valid for the purposes of obtaining a residence permit in Italy. 38. In the judgment of the Tribunal of Grosseto of 3 April 2014, delivered by a court of first instance, it was held that the refusal to register a foreign marriage was unlawful. The court thus ordered the competent public authority to proceed with registration of the marriage. While the order was being executed, the case was appealed against by the State. By a judgment of 19 September 2014 the Court of Appeal of Florence, having detected a procedural error, quashed the first-instance decision and remitted the case to the tribunal of Grosseto. 4. Cohabitation agreements 39. Cohabitation agreements are not specifically provided for in Italian law. 40. Protection of cohabiting couples more uxorio has always been derived from Article 2 of the Italian Constitution, as interpreted in various court judgments over the years (post 1988). In more recent years (2012 onwards) domestic judgments have also considered cohabiting same‑sex couples as deserving such protection. 41. In order to fill the lacuna in the written law, with effect from 2 December 2013 it has been possible to enter into “cohabitation agreements”, namely a private deed, which does not have a specified form provided by law, and which may be entered into by cohabiting persons, be they in a parental relationship, partners, friends, simple flatmates or carers, but not by married couples. Such contracts mainly regulate the financial aspects of living together, cessation of the cohabitation, and assistance in the event of illness or incapacity[1]. 5. Civil unions 42. Italian domestic law does not provide for any alternative union to marriage, either for homosexual couples or for heterosexual ones. The former have thus no means of recognition. 43. In a report of 2013 prepared by Professor F. Gallo (then President of the Constitutional Court) addressed to the highest Italian constitutional authorities, the latter stated: “Dialogue is sometimes more difficult with the [Constitutional] Court’s natural interlocutor. This is particularly so in cases where it solicits the legislature to modify a legal norm which it considered to be in contrast with the Constitution. Such requests are not to be underestimated. They constitute, in fact, the only means available to the [Constitutional] Court to oblige the legislative organs to eliminate any situation which is not compatible with the Constitution, and which, albeit identified by the [Constitutional] Court, does not lead to a pronouncement of anti-constitutionality. ... A request of this type which remained unheeded was that made in judgment no. 138/10, which, while finding the fact that a marriage could only be contracted by persons of a different sex to be constitutional compliant, also affirmed that same-sex couples had a fundamental right to obtain legal recognition, with the relevant rights and duties, of their union. It left it to Parliament to provide for such regulation, by the means and within the limits deemed appropriate.” 44. Nevertheless, some cities have established registers of “civil unions” between unmarried persons of the same sex or of different sexes: among others are the cities of Empoli, Pisa, Milan, Florence and Naples. However, the registration of “civil unions” of unmarried couples in such registers has a merely symbolic value. 6. Subsequent domestic case-law 45. Similarly, the Italian Constitutional Court, in its judgments nos. 276/2010 of 7 July 2010 lodged in the registry on 22 July 2010, and 4/2011 of 16 December 2010 lodged in the registry on 5 January 2011, declared manifestly ill-founded claims that the above-mentioned articles of the Civil Code (in so far as they did not allow marriage between persons of the same sex) were not in conformity with Article 2 of the Constitution. The Constitutional Court reiterated that juridical recognition of homosexual unions did not require a union equal to marriage, as shown by the different approaches undertaken in different countries, and that under Article 2 of the Constitution it was for the Parliament, in the exercise of its discretion, to regulate and supply guarantees and recognition to such unions. More recently, in a case concerning the refusal to issue marriage banns to a same-sex couple who had so requested, the Court of Cassation, in its judgment no. 2400/15 of 9 February 2015, rejected the claimants’ request. Having considered recent domestic and international case-law, it concluded that – while same-sex couples had to be protected under Article 2 of the Italian Constitution and that it was for the legislature to take action to ensure recognition of the union between such couples – the absence of same-sex marriage was not incompatible with the applicable domestic and international system of human rights. Accordingly, the lack of same-sex marriage could not amount to discriminatory treatment: the problem in the current legal system revolved around the fact that there was no other available union, apart from marriage, be it for heterosexual or homosexual couples. However, it noted that the court could not establish through jurisprudence matters which went beyond its competence. 7. Recent and current legislation 46. The House of Deputies has recently examined Bill no. 242 named “Amendments to the Civil Code and other provisions on equality in access to marriage and filiation by same-sex couples” and Bill no. 15 “Norms against discrimination in matrimony”. The Senate in 2014 examined Bill no. 14 on civil unions and Bill no. 197 concerning amendments to the Civil Code in relation to cohabitation, as well as Bill no. 239 on the introduction into the Civil Code of an agreement on cohabitation and solidarity. 47. A unified bill concerning all the relevant legal proposals was presented to the Senate in 2015 and was adopted by the Senate on 26 March 2015 as a basic text to enable further discussions by the Justice Commission. Amendments were to be submitted by May 2015, and a text presented to the two Chambers constituting Parliament by summer 2015. On 10 June 2015 the Lower House adopted a motion to favour the approval of a law on civil unions, taking particular account of the situation of persons of the same sex. 8. Remedies in the domestic system 48. A decision of the Civil Status Office may be challenged (within thirty days) before the ordinary tribunal, in accordance with Article 98 of the Civil Code. 49. A decree of the ordinary tribunal may in turn be challenged before the Court of Appeal (within ten days) by virtue of Article 739 of the Code of Civil Procedure. 50. According to its paragraph (3) no further appeal lay against the decision of the Court of Appeal. However, according to Article 111 (7) of the Constitution as interpreted by consolidated case-law, as well as Article 360 (4) of the Code of Civil Procedure (as modified by legislative decree no. 40/06) if the appeal decree affects subjective rights, is of a decisive nature, and constitutes a determination of a potentially irreversible matter (thus having the value of a judgment), the appeal decision may be challenged before the Court of Cassation within sixty days, in the circumstances and form established by Article 360 of the Code of Civil Procedure. According to Article 742 of the Code of Civil Procedure a decree which does not fall under the above-mentioned definition remains revocable and modifiable, at any future date subject to a change in the factual circumstances or underlying law (presupposti di diritto). 51. According to Articles 325 to 327 of the Code of Civil Procedure, an appeal to the Court of Cassation must be lodged within sixty days of the date on which the appeal decision is served on the party. In any event, in the absence of notification such an appeal may not be lodged later than six months from the date it was lodged in the registry (pubblicazione). 52. According to Article 324 of the Code of Civil Procedure, a decision becomes final, inter alia, when it is no longer subject to an appeal, to the Court of Appeal or Cassation, unless otherwise provided for by law. B. Comparative and European law and practice 1. Comparative-law material 53. The comparative-law material available to the Court on the introduction of official forms of non-marital partnership within the legal systems of Council of Europe (CoE) member States shows that eleven countries (Belgium, Denmark, France, Iceland, Luxembourg, the Netherlands, Norway, Portugal, Spain, Sweden and the United Kingdom) recognise same-sex marriage[2]. 54. Eighteen member States (Andorra, Austria, Belgium, Croatia, the Czech Republic, Finland, France, Germany, Hungary, Ireland, Liechtenstein, Luxembourg, Malta, the Netherlands, Slovenia, Spain, Switzerland and the United Kingdom) authorise some form of civil partnership for same-sex couples. In certain cases such union may confer the full set of rights and duties applicable to the institute of marriage, and thus, is equal to marriage in everything but name, as for example in Malta. In addition, on 9 October 2014 Estonia also legally recognised same-sex unions by enacting the Registered Partnership Act, which will enter into force on 1 January 2016. Portugal does not have an official form of civil union. Nevertheless, the law recognises de facto civil unions[3], which have automatic effect and do not require the couple to take any formal steps for recognition. Denmark, Norway, Sweden and Iceland used to provide for registered partnership in the case of same-sex unions, but was abolished in favour of same-sex marriage. 55. It follows that to date twenty-four countries out of the forty-seven CoE member States have already enacted legislation permitting same-sex couples to have their relationship recognised as a legal marriage or as a form of civil union or registered partnership. 2. Relevant Council of Europe materials 56. In its Recommendation 924 (1981) on discrimination against homosexuals, the Parliamentary Assembly of the Council of Europe (PACE) criticised the various forms of discrimination against homosexuals in certain member States of the Council of Europe. 57. In Recommendation 1474 (2000) on the situation of lesbians and gays in Council of Europe member States, the PACE recommended that the Committee of Ministers call upon member States, among other things, “to adopt legislation making provision for registered partnerships”. Furthermore, in Recommendation 1470 (2000) on the more specific subject of the situation of gays and lesbians and their partners in respect of asylum and immigration in the member States of the Council of Europe, it recommended to the Committee of Ministers that it urge member States, inter alia, “to review their policies in the field of social rights and protection of migrants in order to ensure that homosexual partnerships and families are treated on the same basis as heterosexual partnerships and families ...”. 58. PACE Resolution 1547 (2007) of 18 April 2007 entitled “State of human rights and democracy in Europe” called upon all member States of the CoE, and in particular their respective parliamentary bodies, to address all the issues raised in the reports and opinions underlying this resolution and in particular, to, inter alia, combat effectively all forms of discrimination based on gender or sexual orientation, introduce anti‑discrimination legislation, partnership rights and awareness-raising programmes where these are not already in place;” (point 34.14.). 59. Resolution 1728 (2010) of the Parliamentary Assembly of the Council of Europe, adopted on 29 April 2010 and entitled “Discrimination on the basis of sexual orientation and gender identity”, calls on member States to “ensure legal recognition of same-sex partnerships when national legislation envisages such recognition, as already recommended by the Assembly in 2000”, by providing, inter alia, for: “16.9.1. the same pecuniary rights and obligations as those pertaining to different‑sex couples; 16.9.2. ‘next of kin’ status; 16.9.3. measures to ensure that, where one partner in a same-sex relationship is foreign, this partner is accorded the same residence rights as would apply if she or he were in a heterosexual relationship; 16.9.4. recognition of provisions with similar effects adopted by other member states;” 60. In Recommendation CM/Rec(2010)5 on measures to combat discrimination on grounds of sexual orientation or gender identity, the Committee of Ministers recommended that member States: “1. Examine existing legislative and other measures, keep them under review, and collect and analyse relevant data, in order to monitor and redress any direct or indirect discrimination on grounds of sexual orientation or gender identity; 2. Ensure that legislative and other measures are adopted and effectively implemented to combat discrimination on grounds of sexual orientation or gender identity, to ensure respect for the human rights of lesbian, gay, bisexual and transgender persons and to promote tolerance towards them ...” 61. The Recommendation also observed as follows: “23. Where national legislation confers rights and obligations on unmarried couples, member states should ensure that it applies in a non-discriminatory way to both same‑sex and different-sex couples, including with respect to survivor’s pension benefits and tenancy rights. 24. Where national legislation recognises registered same-sex partnerships, member states should seek to ensure that their legal status and their rights and obligations are equivalent to those of heterosexual couples in a comparable situation. 25. Where national legislation does not recognise nor confer rights or obligations on registered same-sex partnerships and unmarried couples, member states are invited to consider the possibility of providing, without discrimination of any kind, including against different-sex couples, same-sex couples with legal or other means to address the practical problems related to the social reality in which they live.” 3. European Union law 62. Articles 7, 9 and 21 of the Charter of Fundamental Rights of the European Union, which was signed on 7 December 2000 and entered into force on 1 December 2009, read as follows: Article 7 “Everyone has the right to respect for his or her private and family life, home and communications.” Article 9 “The right to marry and to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights.” Article 21 “1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited. 2. Within the scope of application of the Treaty establishing the European Community and of the Treaty on European Union, and without prejudice to the special provisions of those Treaties, any discrimination on grounds of nationality shall be prohibited.” 63. The Commentary of the Charter of Fundamental Rights of the European Union, prepared in 2006 by the EU Network of Independent Experts on Fundamental Rights, states as follows with regard to Article 9 of the Charter: “Modern trends and developments in the domestic laws in a number of countries toward greater openness and acceptance of same-sex couples notwithstanding, a few states still have public policies and/or regulations that explicitly forbid the notion that same-sex couples have the right to marry. At present there is very limited legal recognition of same-sex relationships in the sense that marriage is not available to same-sex couples. The domestic laws of the majority of states presuppose, in other words, that the intending spouses are of different sexes. Nevertheless, in a few countries, e.g., in the Netherlands and in Belgium, marriage between people of the same sex is legally recognized. Others, like the Nordic countries, have endorsed a registered partnership legislation, which implies, among other things, that most provisions concerning marriage, i.e. its legal consequences such as property distribution, rights of inheritance, etc., are also applicable to these unions. At the same time it is important to point out that the name ‘registered partnership’ has intentionally been chosen not to confuse it with marriage and it has been established as an alternative method of recognizing personal relationships. This new institution is, consequently, as a rule only accessible to couples who cannot marry, and the same‑sex partnership does not have the same status and the same benefits as marriage ... In order to take into account the diversity of domestic regulations on marriage, Article 9 of the Charter refers to domestic legislation. As it appears from its formulation, the provision is broader in its scope than the corresponding articles in other international instruments. Since there is no explicit reference to ‘men and women’ as the case is in other human rights instruments, it may be argued that there is no obstacle to recognize same-sex relationships in the context of marriage. There is, however, no explicit requirement that domestic laws should facilitate such marriages. International courts and committees have so far hesitated to extend the application of the right to marry to same-sex couples ...” 64. A number of other Directives may also be of interest in the present case: they can be found in Vallianatos and Others v. Greece ([GC], nos. 29381/09 and 32684/09, §§ 33-34, ECHR 2013 (extracts)). 4. The United States 65. On 26 June 2015, in the case of Obergefell et al. v. Hodges, Director, Ohio Department of Health et al, the Supreme Court of the United States held that same-sex couples may exercise the fundamental right to marry in all States, and that there was no lawful basis for a State to refuse to recognise a lawful same-sex marriage performed in another State on the ground of its same-sex character. The petitioners had claimed that the respondent state officials violated the Fourteenth Amendment by denying them the right to marry or to have marriages lawfully performed in another State given full recognition. The Supreme Court held that that the challenged laws burdened the liberty of same-sex couples, and abridged central precepts of equality. It considered that the marriage laws enforced by the respondents were unequal as same-sex couples were denied all the benefits afforded to opposite-sex couples and were barred from exercising a fundamental right. This denial to same-sex couples of the right to marry worked a grave and continuing harm and the imposition of this disability on gays and lesbians served to disrespect and subordinate them. Indeed, the Equal Protection Clause, like the Due Process Clause, prohibited this unjustified infringement of the fundamental right to marry. These considerations led to the conclusion that the right to marry was a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Supreme Court thus held that same-sex couples may exercise the fundamental right to marry. Having noted that substantial attention had been devoted to the question by various actors in society, and that according to their constitutional system individuals need not await legislative action before asserting a fundamental right, it considered that were the Supreme Court to stay its hand and allow slower, case-by-case determination of the required availability of specific public benefits to same sex couples, it still would deny gays and lesbians many rights and responsibilities intertwined with marriage. Lastly, noting that many States already allowed same-sex marriage – and hundreds of thousands of these marriages had already occurred – it opined that the disruption caused by the recognition bans was significant and ever‑growing. Thus, the Supreme Court also found that there was no lawful basis for a State to refuse to recognise a lawful same-sex marriage performed in another State. THE LAW I. PRELIMINARY OBJECTIONS A. Rule 47 66. The Government cited Article 47 of the Rules of Court. They highlighted that according to the recent revision of Article 47 of the Rules issued by the Plenary Court, the rules on what an application must contain must be applied in a stricter way. Thus, failure to comply with the requirements set out in paragraphs 1 and 2 of this rule may result in the application not being examined by the Court. 67. The applicants in application no. 18766/11 submitted that on the basis of the principle of tempus regit actum, the new Rule 47 adopted in 2013 could not apply to an application lodged in 2011. 68. The Court notes that, quite apart from the failure of the Government to indicate in what way the applicants failed to fulfil the requirements of Rule 47, it is only from 1 January 2014 that the amended Rule 47 applied stricter conditions for the introduction of an application with the Court. In the present case, the Court notes that all the applicants lodged their applications in 2011, and there is no reason to consider that they have not fulfilled the requirements of Rule 47 as applicable at the time. 69. It follows that any Government objection in this respect must be dismissed. B. Victim status 70. Although not explicitly raised as an objection to the applications’ admissibility, the Government submitted that the applicants had not indicated in what way they had suffered any actual damage, and the reference to the injury of the applicants was only abstract (inheritance rights, assistance to the partner, sub-entry into economic relationships acts). They pointed out that the Court could only judge upon specific circumstances of a case and not make evaluations going beyond the scope of the applications. 71. The Court considers it appropriate to deal with the argument at this stage. It notes that the applicants are individuals past the age of majority, who, according to the information submitted, are in same-sex relationships and in some cases are cohabiting. To the extent that the Italian Constitution as interpreted by the domestic courts excludes same-sex couples from the scope of marriage law, and that because of the absence of any legal framework to that effect the applicants cannot enter into a civil union and organise their relationship accordingly, the Court considers that they are directly concerned by the situation and have a legitimate personal interest in seeing it brought to an end (see, mutatis mutandis, Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 49, ECHR 2013 (extracts), and by implication, Schalk and Kopf v. Austria, no. 30141/04, ECHR 2010). 72. Accordingly, the Court concludes that the individuals in the present applications should be considered “victims” of the alleged violations within the meaning of Article 34 of the Convention. C. Exhaustion of domestic remedies 1. The Government 73. The Government submitted that the applicants had failed to exhaust domestic remedies. They noted that in cases such as the present one it is possible to appeal against refusal to publish wedding banns before the relevant tribunal. The first-instance decision could then be challenged before the Court of Appeal and the Court of Cassation. However, Mr Oliari and Mr A. had failed to lodge a further appeal to the Court of Cassation, Mr Felicetti and Mr Zappa had not made any challenge to the administrative refusal to publish their banns, and Mr Perelli Cippo and Mr Zaccheo had failed to appeal against the first-instance judgment handed down in their case. 74. The Government referred to the principle of subsidiarity, and considered that the domestic courts could have given the applicants adequate redress for the damage suffered and offered them the legal and judicial means to obtain a statement at least recognising their union as a social formation like a life partnership as traditionally understood [sic]. In support of this the Government made reference to the Court of Cassation judgment no. 4184 delivered in 2012 concerning the registration of same‑sex marriage contracted abroad, which according to their translation reads as follows: “[T]he case law of this Court (of Cassation) – according to which the difference in sex of the engaged couple is, together with the manifestation of the will expressed by the same in the presence of the civil state officer celebrant, indispensable minimum requirement for the ‘existence of civil marriage’ as legally relevant act – is no more suitable to the current legal reality, having been radically overcome the idea that the difference in sex couples preparing for marriage is a prerequisite, as to say ‘natural’ of the same ‘existence’ of marriage. For all the above reasons, the no-transcription of homosexual unions depends – not from their ‘non-existence’, nor by their ‘invalidity’ but – by their inability to produce, as marriage records precisely, legal effects in the Italian system.” In that light, the Government considered that if the applicants had brought their case before the domestic judges they would at least have had a legal recognition of their union. However, they had deliberately chosen not to do so. 75. Furthermore, they noted that the claims lodged before the domestic courts solely concerned their inability to obtain same-sex marriage and not the inability to obtain an alternative form of recognition for such couples. 2. The applicants 76. The applicants submitted that while the Constitutional Court in its judgment of no. 138/10 had found that Article 2 of the Constitution required legal protection of same-sex unions, it had no other option but to declare the complaint inadmissible, given the legislature’s competence in the matter. A similar situation obtained in judgment no. 170/14 (see paragraph 36 above). Furthermore, the applicants submitted that the Government had not proved, by means of examples, that the domestic courts could provide any legal recognition of their unions. Indeed, given that the flaw related to the law (or lack thereof), ordinary domestic courts were prevented from taking any remedial action: even the court with competence to review the laws was unable to do this. Within the domestic system the appropriate remedy would have been a challenge before the Constitutional Court, which the Court had already stated was not a remedy to be used, it not being directly accessible to individuals (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 70, 17 September 2009). Moreover, in the present case such a challenge would not have been successful, given the precedent which lay in judgment no. 138/10, subsequently confirmed by other decisions. 3. The Court’s assessment 77. The Court reiterates that Article 35 § 1 of the Convention requires that complaints intended to be made subsequently at Strasbourg should have been made to the appropriate domestic body, at least in substance (see Akdivar and Others v. Turkey, 16 September 1996, § 66, Reports 1996‑IV, and Gäfgen v. Germany [GC], no. 22978/05 §§ 144 and 146, ECHR 2010). The purpose of the exhaustion rule is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it (see, among many other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). That rule is based on the assumption, reflected in Article 13 of the Convention, with which it has close affinity, that there is an effective remedy available in respect of the alleged breach in the domestic system (ibid.). To be effective, a remedy must be capable of remedying directly the impugned state of affairs, and must offer reasonable prospects of success (see Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006‑II). 78. The scope of the Contracting States’ obligations under Article 13 varies depending on the nature of the applicant’s complaint; however, the remedy required by Article 13 must be “effective” in practice as well as in law (see, for example, İlhan v. Turkey [GC], no. 22277/93, § 97, ECHR 2000-VII). It is for the Court to determine whether the means available to an applicant for raising a complaint are “effective” in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that had already occurred (see Kudła v. Poland [GC], no. 30210/96, §§ 157-158, ECHR 2000‑XI). Whether the redress given is effective will depend, among other things, on the nature of the right alleged to have been breached, the reasons given for the decision and the persistence of the unfavourable consequences for the person concerned after that decision (see, for example, Freimanis and Līdums v. Latvia, nos. 73443/01 and 74860/01, § 68, 9 February 2006). In certain cases a violation cannot be made good through the mere payment of compensation (see, for example, Petkov and Others v. Bulgaria, nos. 77568/01, 178/02 and 505/02, § 80, 11 June 2009 in connection with Article 3 of Protocol No. 1) and the inability to render a binding decision granting redress may also raise issues (see Silver and Others v. the United Kingdom, 25 March 1983, § 115, Series A no. 61; Leander v. Sweden, 26 March 1987, § 82, Series A no. 116; and Segerstedt-Wiberg and Others v. Sweden, no. 62332/00, § 118, ECHR 2006‑VII). 79. The only remedies which Article 35 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see Akdivar and Others, cited above, § 66, and Vučković and Others v. Serbia [GC], no. 17153/11, § 71, 25 March 2014). 80. In addition, according to the “generally recognised principles of international law”, there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his disposal (see Selmouni, cited above, § 75). However, the Court points out that the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see Vučković and Others, cited above, § 74, and Brusco v. Italy (dec.), no. 69789/01, ECHR 2001‑IX). The issue of whether domestic remedies have been exhausted shall normally be determined by reference to the date when the application was lodged with the Court. This rule is however subject to exceptions which might be justified by the specific circumstances of each case (see, for example, Baumann v. France, no. 33592/96, § 47, 22 May 2001; Nogolica v. Croatia (dec.), no. 77784/01, ECHR 2002-VIII; and Mariën v. Belgium (dec.), no. 46046/99, 24 June 2004). 81. As regards the Government’s main argument that none of the applicants availed themselves of the full range of remedies available (up to the Court of Cassation), the Court observes that at the time when all the applicants introduced their applications before the Court (March and June 2011) the Constitutional Court had already given judgment on the merits of the first two applicants’ claim (15 April 2010), as a result of which the Court of Appeal dismissed their claims on 21 September 2010. The Constitutional Court subsequently reiterated those findings in two further judgments (lodged in the relevant registry on 22 July 2010 and 5 January 2011, see paragraph 45 above) also delivered before the applicants introduced their applications with the Court. Thus, at the time when the applicants wished to complain about the alleged violations there was consolidated jurisprudence of the highest court of the land indicating that their claims had no prospect of success. 82. The Government have not shown, nor does the Court imagine, that the ordinary jurisdictions could have ignored the Constitutional Court’s findings and delivered different conclusions accompanied by the relevant redress. Further, the Court observes that the Constitutional Court itself could not but invite the legislature to take action, and it has not been demonstrated that the ordinary courts could have acted more effectively in redressing the situations in the present cases. In this connection, and in the light of the Government’s argument that they could have obtained a statement at least on the recognition of their union based on the Court of Cassation judgment no. 4184/12, the Court notes as follows: firstly, the Government failed to give even one example of such a formal recognition by the domestic courts; secondly, it is questionable whether such recognition, if at all possible, would have had any legal effect on the practical situation of the applicants in the absence of a legal framework – indeed the Government have not explained what this ad hoc statement of recognition would entail; and thirdly, judgment no. 4184, referred to by the Government (which only makes certain references en passant), was delivered after the applicants had introduced their application with the Court. 83. Bearing in mind the above, the Court considers that there is no evidence enabling it to hold that on the date when the applications were lodged with the Court the remedies available in the Italian domestic system would have had any prospects of success. It follows that the applicants cannot be blamed for not having pursued an ineffective remedy, either at all or until the end of the judicial process. Thus, the Court accepts that there were special circumstances which absolved the applicants from their normal obligation to exhaust domestic remedies (see Vilnes and Others v. Norway, nos. 52806/09 and 22703/10, § 178, 5 December 2013). 84. Without prejudice to the above, in reply to the Government’s last argument the Court observes that the domestic proceedings (undertaken by four of the applicants in the present case) related to the authorities’ refusal to permit the applicants to marry. As the opportunity to enter into a registered partnership did not exist in Italy, it is difficult to see how the applicants could have raised the question of legal recognition of their partnership except by seeking to marry, especially given that they had no direct access to the Constitutional Court. Consequently, their domestic complaint focused on their lack of access to marriage. Indeed, the Court considers that the issue of alternative legal recognition is so closely connected to the issue of lack of access to marriage that it has to be considered as inherent in the present application (see Schalk and Kopf, cited above, § 76). Thus, the Court accepts that such a complaint, at least in substance, included the lack of any other means to have their relationship recognised by law (ibid., § 75). It follows that the domestic courts, particularly the Constitutional Court hearing the case concerning the first two applicants, was in a position to deal with the issue and, indeed, addressed it briefly, albeit only to conclude that it was for the legislature to take action on the matter. In these circumstances, the Court is satisfied that national jurisdictions were given the opportunity to redress the alleged violations being complained of in Strasbourg, as also characterised by the Court (see, mutatis mutandis, Gatt v. Malta, no. 28221/08, § 24, ECHR 2010). 85. It follows that in these circumstances the Government’s objection must be dismissed. D. Six months 1. The Government 86. The Government submitted that the complete application no. 18766/11 of 4 August 2011 was received by the Court on 9 August 2011, one year after the judgment of the Court of Appeal of Trent dated 23 September 2010, and that the complete application no. 36030/11 of 10 June 2011 was received by the Court on 17 June 2011, one year after the judgment of the Milan Tribunal of 9 June 2010, lodged in the relevant registry on 1 July 2010 in respect of Mr Perelli Cippo and Mr Zaccheo and in the absence of any judgment in respect of Mr Felicetti and Mr Zappa. Any material submitted to the Court before those dates had not contained all the characteristics of the application. 2. The applicants 87. The applicants in application no. 18766/11 submitted that under Italian law the decision of the Trent Court of Appeal served on the applicants on 23 September 2010 became final after six months. It followed that the application introduced on 21 March 2011 complied with the six‑month rule provided in the Convention. 88. The applicants in application no. 36030/11 considered that the alleged violations had a continuous character, as long as same-sex unions were not recognised under Italian law. 3. The Court’s assessment (a) Dates of introduction of the applications 89. The Court reiterates that the six-month period is interrupted on the date of introduction of an application. In accordance with its established practice and Rule 47 § 5 of the Rules of Court, as in force at the relevant time, it normally considered the date of the introduction of an application to be the date of the first communication indicating an intention to lodge an application and giving some indication of the nature of the application. Such first communication, which at the time could take the form of a letter sent by fax, would in principle interrupt the running of the six-month period (see Yartsev v. Russia (dec.) no. 1376/11, § 21, 26 March 2013; Abdulrahman v. the Netherlands (dec.), no. 66994/12, 5 February 2013; and Biblical Centre of the Chuvash Republic v. Russia, no. 33203/08, § 45, 12 June 2014). 90. In the instant case, concerning application no. 18766/11, the first communication indicating the wish to lodge a case with the Court as well as the object of the application (in the instant case in the form of an incomplete application), was deposited by hand at the Court Registry on 21 March 2011: a completed application followed in accordance with the instructions of the Registry. There is thus no doubt that the date of introduction in respect of application no. 18766/11 was 21 March 2011. Similarly, concerning application no. 36030/11 a complete application was received by the Court by fax on 10 June 2011, it was followed by the original received by the Court on 17 June 2011. There is therefore also no doubt that the introduction date in respect of application no. 36030/11 must be considered to be 10 June 2011. It follows that in these circumstances the date of “receipt” by the Court of the original or the completed application forms is irrelevant for determining the date of introduction; the Government’s argument to that effect is therefore misconceived. 91. It remains to be determined whether the applications introduced on those days complied with the six-month rule. (b) Compliance with the six-month time-limit (i) General principles 92. As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset, however, that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant (see Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, § 259, ECHR 2014 (extracts)). Where an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it may be appropriate for the purposes of Article 35 § 1 to take the start of the six-month period as the date when the applicant first became or ought to have become aware of those circumstances (ibid., § 260; see also El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 136, ECHR 2012, and Paul and Audrey Edwards v. the United Kingdom (dec.), no. 46477/99, 4 June 2001). 93. In cases where there is a continuing situation, the period starts to run afresh each day, and it is in general only when that situation ends that the six‑month period actually starts to run (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 159, ECHR‑2009). 94. The concept of a “continuing situation” refers to a state of affairs which operates by continuous activities by or on the part of the State which render the applicants victims (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 75, 10 January 2012; see also, conversely, McDaid and Others v. the United Kingdom, no. 25681/94, Commission decision of 9 April 1996, Decisions and Reports (DR) 85-A, p. 134, and Posti and Rahko v. Finland, no. 27824/95, § 39, ECHR 2002‑VII). The Court has however also established that omissions on the part of the authorities may also constitute “continuous activities by or on the part of the State” (see, for example, Vasilescu v. Romania, 22 May 1998, § 49, Reports of Judgments and Decisions 1998‑III concerning a judgment preventing the applicant from regaining possession of her property; Sabin Popescu v. Romania, no. 48102/99, § 51, 2 March 2004 concerning a parent’s inability to regain parental rights; Iordache v. Romania, no. 6817/02, § 66, 14 October 2008; and Hadzhigeorgievi v. Bulgaria, no. 41064/05, §§ 56-57, 16 July 2013, both concerning non-enforcement of judgments, as well as, by implication, Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 104, ECHR 2012, concerning the inability to broadcast television programmes). 95. In its case-law the Court has considered that there were “continuing situations” bringing the case within its competence with regard to Article 35 § 1, where a legal provision gave rise to a permanent state of affairs, in the form of a permanent limitation on an individual Convention‑protected right, such as the right to vote or to stand for election (see Paksas v. Lithuania [GC], no. 34932/04, § 83, 6 January 2011, and Anchugov and Gladkov v. Russia, nos. 11157/04 and 15162/05, § 77, 4 July 2013) or the right of access to court (see Nataliya Mikhaylenko v. Ukraine, no. 49069/11, § 25, 30 May 2013), or in the form of a legislative provision which intrudes continuously on an individual’s private life (see Dudgeon v. the United Kingdom, 22 October 1981, § 41, Series A no. 45, and Daróczy v. Hungary, no. 44378/05, § 19, 1 July 2008) (ii) Application to the present case 96. Turning to the particular features of the present case, the Court notes that in so far as the rights under Articles 8, 12 and 14 concerning the inability to marry or enter into a civil union are at issue the applicants’ complaints do not concern an act occurring at a given point in time or even the enduring effects of such an act, but rather concern provisions (or in this case the lack thereof) giving rise to a continuing state of affairs, namely a lack of recognition of their union, with all its practical consequences on a daily basis, against which no effective domestic remedy was in fact available. The Convention organs have previously held that when they receive an application concerning a legal provision which gives rise to a permanent state of affairs for which there is no domestic remedy, the question of the six-month period arises only after this state of affairs has ceased to exist: “... in the circumstances, it is exactly as though the alleged violation was being repeated daily, thus preventing the running of the six‑month period” (see De Becker v. Belgium, (dec.) 9 June 1958, no. 214/56, Yearbook 2, and Paksas, cited above, § 83). 97. In the instant case, in the absence of an effective domestic remedy given the state of domestic case-law, and the fact that the state of affairs complained of has clearly not ceased, the situation must be considered as a continuing one (see, for example, Anchugov and Gladkov v. Russia, nos. 11157/04 and 15162/05, § 77, 4 July 2013, albeit a different line had been taken previously in British cases concerning similar circumstances, see Toner v. The United Kingdom (dec.), § 29, no. 8195/08, 15 February 2011, and Mclean and Cole v. The United Kingdom (dec.), § 25, 11 June 2013). It cannot therefore be maintained that the applications are out of time. 98. Accordingly, the Government’s objection is dismissed. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION AND ARTICLE 14 IN CONJUNCTION WITH ARTICLE 8 99. The applicants in application no. 18766/11 complained that they had no means of legally safeguarding their relationship, in that it was impossible to enter into any type of civil union in Italy. They invoked Article 8 alone. The applicants in application nos. 18766/11 and 36030/11 complained that they were being discriminated against in breach of Article 14 in conjunction with Article 8. Those provisions read as follows: Article 8 “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 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.” Article 14 “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.” 100. The Court reiterates that it is the master of the characterisation to be given in law to the facts of the case (see, for example, Gatt, cited above, § 19). In the present case the Court considers that the complaints raised by the applicants in application no. 36030/11, also fall to be examined under Article 8 alone. A. Admissibility 1. Applicability 101. The Government, referring to Schalk and Kopf (§§ 93-95), did not dispute the applicability of Article 14 in conjunction with Article 8. 102. As the Court has consistently held, Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence, since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, for instance, E.B. v. France [GC], no. 43546/02, § 47, 22 January 2008; Karner v. Austria, no. 40016/98, § 32, ECHR 2003‑IX; and Petrovic v. Austria, 27 March 1998, § 22, Reports 1998‑II). 103. It is undisputed that the relationship of a same-sex couple, such as those of the applicants, falls within the notion of “private life” within the meaning of Article 8. Similarly, the Court has already held that the relationship of a cohabiting same-sex couple living in a stable de facto partnership falls within the notion of “family life” (see Schalk and Kopf, cited above, § 94). It follows that the facts of the present applications fall within the notion of “private life” as well as “family life” within the meaning of Article 8. Consequently, both Article 8 alone and Article 14 taken in conjunction with Article 8 of the Convention apply. 2. Conclusion 104. The Court notes that the complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 1. The parties’ submissions (a) The applicants in application no. 18766/11 105. The applicants referred to the evolution which had taken place, as a result of which many countries had legislated in favour of some type of institution for same-sex couples, the most recent additions being Gibraltar and Malta, whose legislation enacted in 2014 gave same-sex couples grosso modo the same rights and duties applicable to married couples; registered partnership for same-sex couples had also been instituted in Croatia. They considered that there was no reason why those unions should not be provided for in Italy. They noted in particular that the Italian Constitutional Court itself had considered that the state had an obligation to introduce in its legal system some form of civil union for same-sex couples. They referred to the Court’s jurisprudence concerning the positive obligations inherent in an effective respect for private and family life, and reiterated that according to the Court, where a particular facet of an individual’s existence or identity was at stake, or where the activities at stake involved a most intimate aspect of private life, the margin allowed to a State was correspondingly narrow (Söderman v. Sweden [GC], no. 5786/08, § 79, ECHR 2013). 106. The applicants noted that the Government had given no justification for the failure to legislate to this effect. On the contrary, they had tried to convince the Court that same-sex couples were already protected, despite the lack of a specific legal framework. This in itself was contradictory, because if the Government recognised the need to protect, then there was no other way of doing so than by providing a stable legal framework, such as marriage or a similar institution of registered partnership, or the like. Further, the applicants failed to understand the connection between the protection of family in its traditional sense and the legal recognition of a stable relationship of a same-sex couple. 107. The applicants considered that the recognition in law of one’s family life and status was crucial for the existence and well-being of an individual and for his or her dignity. In the absence of marriage the State should, at least, give access to a recognised union by means of a solemn juridical institution, based on a public commitment and capable of offering them legal certainty. Currently they were denied such protection in law, and same-sex couples suffered a state of uncertainty, as shown by the domestic cases cited by the Government, which left people in the applicants’ situation at the mercy of judicial discretion. The applicants noted that despite the fact that Italy had transposed EU directive 78/2000, the administration continued to deny certain benefits to same-sex couples, and did not consider them equal to heterosexual couples. 108. The applicants considered that the Government was misleading the Court by a wrong interpretation of the decision of the municipality of Milan concerning registration (see paragraph 130 below). The registration referred to did not provide for the issuance of a document certifying a “civil union” based on a bond of affection, but of a “union for record purposes (unione anagrafica)” based on a bond of affection. It solely concerned registration for the purposes of statistical records of the existing population, which was not to be confused with the notion of an individual’s civil status. While noting that certain municipalities had embraced this system, very few couples had actually registered, since it had no effect on a person’s civil status, and could only be produced as proof of cohabitation. Indeed it had no effects vis-à-vis third parties, nor did it deal with matters such as succession, parental matters, adoption, and the right to create a family business (impresa famigliare). Similarly, the judgment of the tribunal of Grosseto concerning the registration of the marriage of a homosexual couple (see paragraph 38 above) had been a unique judgment and was, at the time of the submission of observations, pending appeal at the request of the Government. They further noted that the remarks made by the Court of Cassation in its judgment no. 4184/12, to the effect that a same-sex marriage contracted abroad was no longer contrary to the Italian public order, had been said in passing (obiter dictum), were not binding and the administration had not followed suit. Indeed the Court of Cassation had clearly decided the matter, in the sense that no such marriage was possible. 109. In connection with Article 14, the applicants reiterated that the State’s margin of appreciation was narrow when the justification for evading such an obligation was based on the sexual orientation of individuals (they referred to X and Others v. Austria [GC], no. 19010/07, ECHR 2013, and X v. Turkey, no. 24626/09, 9 October 2012), and very weighty reasons were necessary to justify a difference of treatment based on such grounds. They relied on the dissenting opinions in the judgment of Schalk and Kopf. They further considered that in the present case there was no point in arguing that it was not open for heterosexual couples to enter into some sort of registered union, given that heterosexual couples had the opportunity to marry, while homosexual couples had no protection of this kind whatsoever. (b) The applicants in application no. 36030/11 110. The applicants submitted that in view of the positive trend registered in Europe, the Court should now impose on States a positive obligation to ensure that same sex-couples have access to an institution, of whatever name, which was more or less equivalent to marriage. This was particularly so given that in Italy the Constitutional Court had upheld the need for homosexual unions to be recognised in law with the relevant rights and duties; despite this the legislator had remained inert. 111. The applicants noted that the Government had failed to demonstrate how recognition of same-sex unions would adversely affect actual and existing “traditional families”. Neither had the Government explained that prevention of any adverse effects could not be attained through less restrictive means. The applicants also noted that a finding of a violation in the present case would only oblige Italy to take legislative measures in this regard, leaving to the State the space to address any legitimate aim by tailoring the relevant legislation. It followed that the margin of appreciation, which was particularly narrow in respect of a total denial of legal recognition to same-sex couples, was, conversely, existent in relation to the form and content of such recognition, which however was not the subject of this application. They further noted that the present case did not raise moral and ethical issues of acute sensitivity (such as the issue of abortion) nor did it involve a balance with the rights of others, in particular children (such as adoption by homosexuals): the present case simply related to the rights and duties of partners towards each other (irrespective of the recognition of rights such as parental rights, adoption or access to medically assisted procreation). 112. The applicants submitted that in Schalk and Kopf one of the Chambers of the Court had found no violation of Article 14 in conjunction with Article 8, by a tight majority (4-3), considering that States enjoyed a margin of appreciation as to the timing of such recognition, and that at the time there was not yet a majority of States providing for such recognition. The applicants noted that until June 2014 (date of observations) 22 of 47 States recognised some form of same-sex union. These included all the Council of Europe (CoE) founding States except Italy, as well as countries sharing, like Italy, a deep attachment to the Catholic religion (such as Ireland and Malta). In addition Greece was also under an obligation to introduce such recognition following the judgment in Vallianatos. This meant that, at the time they submitted their observations, 49% of States had recognised same-sex unions. However, the applicants noted, with respect, that in Schalk and Kopf the Chamber had taken as a decisive factor “the majority of member States”, while in earlier case-law (namely Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 84, ECHR 2002‑VI), notwithstanding the little common ground that existed between States, and the fact that a European common approach was still lacking, the Grand Chamber chose to give less importance to those criteria and to give more importance to the clear and uncontested evidence of a continuing international trend. Further, the applicants noted that in the present case it could not be said that there was a consensus on the practice followed by Italy. 113. The applicants contended that the Court could not be reduced to being an “accountant” of majoritarian domestic views. On the contrary, it had to be the guardian of the Convention and its underlying values, which include the protection of minorities (they referred in this connection to L. and V. v. Austria, nos. 39392/98 and 39829/98, § 52, ECHR 2003‑I, and Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 97, ECHR 1999‑VI). The applicants noted that bias was still present throughout Europe, and could be stronger in certain countries where prejudice against homosexuals was rooted in traditional, if not archaic, convictions and where democratic ideals and practices had only established themselves in recent times. The applicants noted that empirical evidence (submitted to the Court) showed that lack of recognition of same-sex couples in a given state corresponded to a lower degree of social acceptance of homosexuality. It followed that by simply deferring normative choices to the national authorities, the Court would fail to take account of the fact that certain national choices were in fact based on prevailing discriminatory attitudes against homosexuals, rather than the outcome of a genuine democratic process guided by the consideration of what is strictly necessary in a democratic society. 114. In the applicants’ view, even accepting a certain margin of appreciation it was not appropriate for the Italian Government to rely on it for the specific reason that the domestic courts had upheld the existence in domestic constitutional law of an obligation to recognise same-sex unions. The applicants contended that under the Court’s jurisprudence once a State provided for a right in domestic law it was then obliged to provide effective and non-discriminatory protection of such a right (they referred to A, B and C v. Ireland [GC], no. 25579/05, § 249, ECHR 2010). The applicants noted that Constitutional Court judgment no. 138/10 had the effect of affirming the existence of a constitutional fundamental right for same-sex partners to obtain recognition of their union and, to this effect, of a constitutional duty upon the legislature to enact an appropriate general regulation on the recognition of same-sex unions, with consequent rights and duties for partners. The recognition by the domestic courts that the concept of family was not limited to the traditional notion based on marriage had gone even beyond judgment no. 138/10. Other judgments in the field of fundamental rights held that as a matter of domestic constitutional law the notion of traditional family played a minor role in justifying restrictions: examples pertained to medically assisted procreation (nos. 162/14 and 151/09); rules on the transmission of the family name to children (no. 61/06); a partner’s right to succeed in a lease contract (no. 404/88); and a partner’s right to refrain from giving testimony in judicial proceedings (no. 7/97). 115. The lack of recognition of their union affected and disadvantaged the applicants in many specific and concrete ways. The applicants noted that even if the law recognised some specific and limited rights for non-married (heterosexual or same-sex) couples, these were not dependent on status, but on a de facto situation of cohabitation more uxorio. In fact, in the domestic cases concerning reparation in the case of a partner’s death, the Court of Cassation (judgment no. 23725/08) had held that for such purposes the existence of a stable relationship providing mutual, moral and material assistance would have to be proved, and that declarations made by the interested individuals (affidavit) or indications given to the administration for the purposes of statistics would not suffice. Thus, the applicants submitted that to exercise or claim their rights they could not rely on status resulting from an act of common will, but had to resort to proving the existence of a factual situation. In addition, only a limited number of rights had been recognised in respect of de facto partners, and in most cases they remained without legal protection. They submitted the following as a non‑exhaustive list of examples of the latter (on the basis of legal provisions, and in certain cases confirmed by case-law): the law failed to regulate the respective rights and duties of partners (as also noted by the Constitutional Court) in spheres such as material and moral assistance between partners, the responsibilities in contributing to the needs of the family, or their choices concerning family life; there was a lack of inheritance rights in the case of intestate succession; de facto partners were not entitled to a reserved portion (legitim) and a surviving partner did not enjoy a right in rem to live in the family home owned by the deceased partner (Constitutional Court judgment no. 310/89); there existed no right to a survivor’s pension (Constitutional Court judgment no. 461/2000); de facto partners had limited rights concerning assistance to a hospitalised partner when the latter was not able to express his or her will; in principle a de facto partner had no right to access his or her companion’s medical file (although the Garante della Privacy in its decision of 17 September 2009, found otherwise, in the event of proof of written consent); de facto partners did not have maintenance rights and duties; de facto partners were not entitled to special leave from work to assist a partner affected by a serious disability; de facto partners did not benefit from most taxation or social policies relating to family: for example, they could not benefit from tax deductions applicable to dependent spouses; and de facto partners had no access to adoption or to medically assisted procreation. 116. The applicants noted that while a certain limited degree of protection could have been obtained by means of private agreements, this was irrelevant, and the Court’s Grand Chamber had already rejected such an argument in Vallianatos (§ 81). Furthermore, such arrangements were time‑consuming and costly, as well as stressful, and again it was a burden only to be carried by the applicants and not by heterosexual couples, who could opt for marriage, or by couples who were not interested in having any legal recognition. The lack of legal recognition of the union, besides causing legal and practical problems, also prevented the applicants from having a ritualised public ceremony through which they could, under the protection of the law, solemnly undertake the relevant duties towards each other. They considered that such ceremonies brought social legitimacy and acceptance, and particularly in the case of homosexuals, they went to show that they also have the right to live freely and to live their relationships on an equal basis, both in private and in public. They noted that the absence of such recognition brought about in them a sense of belonging to an inferior class of persons, despite their needs in the sphere of love being the same. 117. The applicants submitted that the fact that 155 of the existing 8,000 municipalities had recently instituted what are known as “registers of civil unions” had not corrected the situation. Accepting their political and symbolic importance, the applicants submitted that such registers, available only on a small portion of the territory, were merely administrative acts which were unable to confer a status on the applicants or bestow any legal rights. Such initiatives only testified to the willingness of certain authorities to include unions outside marriage when taking measures concerning families, within their sphere of competence. 118. The applicants submitted that the alleged violation was a direct consequence of the vacuum in the legal system in force. The applicants’ were in a relevantly similar situation to that of a different-sex couple as regards their need for legal recognition and protection of their relationship. They further claimed that they were also in a position which was significantly different from that of opposite-sex couples who, though eligible for marriage, did not wish to obtain legal recognition of their union. They noted that the only basis for the difference in treatment suffered by the applicants was their sexual orientation, and that the Government had failed to give weighty reasons justifying such treatment, which constituted direct discrimination. Neither was any justification submitted as to why they were subject to indirect discrimination, in that they were treated in the same way as persons who were in a significantly different situation (they referred to Thlimmenos v. Greece [GC], no. 34369/97, ECHR 2000‑IV), namely that of heterosexual couples who were not willing to marry. 119. The Government, relying solely on their margin of appreciation, gave no reasons at all, let alone weighty ones, to justify such a situation. In the applicants’ view this stance was already sufficient to find a violation of the cited provisions. 120. Nevertheless, even assuming that the difference in treatment may be considered to be aiming at “the protection of the family in the traditional sense”, given the Court’s evolving case-law they considered that it would be unacceptable to frame restrictions on the basis of sexual orientation as aimed at protecting public morals. This, in their view, would be in radical contrast with the demands of pluralism, tolerance and broadmindedness without which there was no democratic society (they referred to Handyside v. the United Kingdom, 7 December 1976, § 50, Series A no. 24). In connection with the notion of the traditional family the applicants referred to the Court’s findings in Vallianatos (cited above, § 84) and Konstantin Markin (cited above, § 127). 121. Lastly, they noted that in Vallianatos the Court stressed that “the principle of proportionality does not merely require the measure chosen to be suitable in principle for achievement of the aim sought. It must also be shown that it was necessary, in order to achieve that aim, to exclude certain categories of people – in this instance persons living in a homosexual relationship – from the scope of application of the provisions at issue ... the burden of proof in this regard is on the respondent Government.” Moreover, the need for any restriction was to be assessed in relation to the principles which normally prevail in a democratic society (they referred to Konstantin Markin, cited above). (c) The Government 122. The Government noted that the Court recognised the Convention right of same-sex couples to see their union legally acknowledged, but considered that the relevant provisions (Articles 8, 12 and 14) did not give rise to a legal obligation on the Contracting States, as the latter enjoyed a wider margin of appreciation in the adoption of legislative changes able to meet the changed “common sense” of the community. Indeed, in that light, in Schalk and Kopf, although lacking legislation on marriage or other forms of recognition of homosexual unions, the Austrian State was not held responsible for violations of the Convention. In the Government’s view, as in Gas and Dubois v. France, (no. 25951/07, ECHR 2012), the Court had acknowledged that the State had no obligation to provide for same-sex marriage, so it also had no obligation to provide for other same-sex unions. 123. Referring to the principles laid down by the Court, the Government observed that the social and cultural sensitivities of the issue of legal recognition of homosexual couples gave each Contracting State a wide margin of appreciation in the choice of the times and modes of a specific legal framework. They further relied on the provisions of Protocol No. 15. They noted that the same margin had been provided for in EU law, particularly Article 9 of the Bill of Rights. This matter had thus to be left to the individual State (in this case Italy), which was the only entity capable of having cognisance of the “common sense” of its own community, particularly concerning a delicate matter which affected the sensitivity of individuals and their cultural identities, and where time was necessarily required to achieve a gradual maturation of a common sense of national community on the recognition of this new form of family in the Convention sense. 124. In the Government’s view the Court had no power to impose such an obligation. Nor could such an obligation be dictated by other States which, in the meantime – most of them only recently (see for example, Malta, 2014) – had adopted a rule as a result of an internal process of social maturation. The Government noted that, at the time of the submission of their observations, less than half the European Contracting States had provided legal forms of protection for unmarried couples, including homosexuals, and many had done so only recently (for example, Austria in 2010, Ireland in 2011, and Finland in 2012), and in the other half it was not provided for at all. They further considered that the fact that at the end of a gradual evolution a State was in an isolated position with regard to an aspect of its legislation did not necessarily mean that that aspect was in conflict with the Convention (they referred to Vallianatos, § 92). The Government thus considered that no positive obligation to legislate in the matter of homosexual couples descended from any article of the Convention. It was solely for the State to decide whether to prohibit or allow same-sex unions, and currently there was no trend to this effect (this process and result could also be seen in the United States of America, where each state was allowed to regulate the matter). 125. Turning to the situation pertaining to Italy, the Government referred to judgment no. 138/10 (see paragraph 16 above), in which the Constitutional Court had recognised the importance for same-sex couples of being able to see their union legally acknowledged, but had left it to Parliament to identify the timing, methods and limits of such a regulatory framework. Thus, contrary to the applicants’ argument, there was no immediate obligation, and the Constitutional Court had not enshrined such a constitutional obligation. Reference to this finding had also been made in the recent Constitutional Court judgment no. 170/14 concerning “forced divorce” following gender reassignment. However, unlike in the present case, in the latter case the Constitutional Court had invited the legislator to act promptly because the individuals concerned had already established a marital relationship productive of effects and consequences which were suddenly brought to a halt. In the instant case, the Constitutional Court acknowledged the existence of a fundamental right, with a consequent need to ensure the legal protection of same-sex unions whenever unequal treatment arose. However, it had delegated to the ordinary national courts the role of controlling, on a case-by-case basis, whether in each specific case the rules provided for different gender unions were extendable to same‑sex ones. If, in the courts’ view, there was unequal treatment to the detriment of same-sex couples, they could refer the question to the Constitutional Court claiming the rule examined to be discriminatory and calling for corrective intervention by the judge. 126. The Government further submitted that the Italian State had been engaged in developing legal status for same-sex unions since 1986, by means of intense debate and a variety of bills on the recognition of civil unions (also between same-sex couples). The issue had always been considered timely and relevant, and recent bills to this effect, introduced by various political parties, were in the process of undergoing parliamentary scrutiny (see paragraphs 46-47 above). Thus, while noting the widespread social and legal ferment on the issue, the Government highlighted that the matter had continued to be debated in recent times. They referred particularly to the President of the Italian Council of Ministers, who had publicly claimed to have assigned top priority to the legal recognition of same-sex unions and to the imminent discussion and examination in the Senate of Bill no. 14 on civil unions for same-sex couples, which, in terms of obligations, specifically corresponded to the institution of marriage and the rights therein, including adoption, inheritance rights, the status of a couple’s children, health care and penitentiary care, residence and working benefits. Thus, Italy was perfectly in line with the pace of maturation which would lead to a European consensus, and could not be blamed for not having yet legislated on the matter. This intense activity in the past thirty years showed an intention on the part of the State to find a solution which would meet with public approval, as well as corresponding to the needs of the protection of a part of the community. It also showed, however, that despite the attention paid to the issue by various political forces, it was difficult to reach a balance between the different sensitivities on such a delicate and deeply felt social issue. They noted that the delicate choices involved in social and legislative policy had to achieve the unanimous consent of different currents of thought and feeling, as well as religious sentiment, which were present in society. It followed that the Italian State could not be held responsible for the tortuous course towards recognition of same-sex unions. 127. The Government, however, contended that they had still, in many ways, demonstrated that they recognised homosexual unions as legally existing and relevant, and that they had offered them specific and concrete forms of legal protection, through judicial and non-judicial means. Domestic jurisprudence had in most circumstances recognised same-sex unions as a reality, with legal and social importance. Indeed, the Italian supreme courts recognised that, in some specific circumstances, same-sex couples may have the same rights as heterosexual married couples: they referred to the Constitutional Court judgments nos. 138/10; 276/2010 and 4/2011 (all mentioned above) and particularly the Court of Cassation judgment no. 4184/12, as well as the Reggio Emilia ordinance of 13 February 2012 and the decision of the Tribunal of Grosseto (see paragraph 37 above): according to the Government, subsequent to the latter decision registration of such marriages became the common practice (an example was the decision of the Municipality of Milan of 7 May 2013). 128. The Government pointed out that the protection of same-sex couples was not limited to the recognition of the union and the family relationship itself. It was actually ensured with specific reference to concrete aspects of their common life. The Government referred to a number of judgments of the ordinary courts: the Rome Tribunal judgment no. 13445/82 of 20 November 1982 which, in a case concerning the lease of an apartment, considered cohabitation by a homosexual couple to be on an equal footing with that of a heterosexual couple; the Milan Tribunal ordinance of 13 February 2011, in which the surviving partner, who had had a long-standing relationship with the victim, was awarded non-pecuniary damages for the loss of the same-sex partner; the Milan Tribunal ordinance of 13 November 2009 [sic] admitting the application as a civil party of the homosexual partner of a victim for the purposes of compensation for the loss suffered; Judgment no. 7176/12 of the Milan Court of Appeal, Labour Section of 29 March 2012, lodged in the relevant registry on 31 August 2012, which granted to the same-sex partner the welfare benefits payable by the employer to the family living with the employee; Judgment of the Rome Court of Minors no. 299/14 of 30 June 2014 which granted “the right to adopt to a homosexual couple” [sic], recte: the right of a non-biological “mother” to adopt her lesbian partner’s child (conceived through medically assisted procreation, abroad, in pursuance of their wish for joint parenthood) given the best interests of the child. 129. The Government further stressed that same-sex couples wishing to give a legal framework to various aspects of their community life could enter into cohabitation agreements (contratti di convivenza). Such agreements enabled same-sex couples to regulate aspects related to; i) the manner of sharing common expenses, ii) the criteria for the allocation of ownership of assets acquired during the cohabitation; iii) the manner of use of the common residence (whether owned by one or both partners); iv) the procedure for the distribution of assets in the event of termination of cohabitation; v) provisions relating to rights in cases of physical or mental illness or incapacity; and vi) acts of testamentary disposition in favour of the cohabiting partner. Such agreements had recently been publicised by the National Council of Notaries, in the light of the growing phenomenon of de facto unions. The Government explained that in order to give cohabitation agreements the organic nature of a legal framework for de facto unions, whether between couples of the same or different sex, a proposal had been made for the Civil Code to be amended, which introduced a regulatory body dedicated to these situations (Civil Code Chapter XXVI, Article 1986 bis et sequi). 130. The Government further noted that since 1993 a growing number of municipalities (to date 155) had established a Register of Civil Unions, which allowed homosexual couples to register themselves to enable their recognition as families for the purposes of administrative, political, social and welfare policy of the city. This was in place in both small and larger towns, and was an unequivocal sign of a progressive and growing social consensus in favour of the recognition of such families. Concerning the content and effects of this form of protection, the Government referred by way of example to the regulations of the register of civil unions issued by the city of Milan (resolution no. 30 of 26 July 2012) according to which the city was committed to protecting and supporting civil unions, in order to overcome situations of discrimination and to promote integration into the social, cultural and economic development of the territory. The thematic areas within which priority action was required were housing, health and social services, policies for youth, parents and seniors, sports and leisure, education, school and educational services, rights, participation, and transportation. The acts of the administration were to provide non‑discriminatory access to these areas and to prevent conditions of social and economic disadvantage. Within the city of Milan, a person enrolled in the register was equivalent to “the next of kin of the person with whom he or she is registered” for the purposes of assistance. The City Council shall, at the request of interested parties, grant a certificate of civil union based on an affective bond of mutual, moral and material assistance. 131. The Government further submitted that since 2003 Italian legislation had been in place for equal treatment in employment and occupation under Directive 2000/78/EC. They noted that the protection of civil unions received more acceptance in certain branches of the State than in others. As an example, they referred to a decision of the Garante della Privacy (a collegial body made of four elected parliamentarians that deals with the protection of personal data) of 17 September 2009, which recognised a surviving partner’s right to request a copy of the deceased partner’s medical records, despite the heirs’ opposition. 132. In their observations in reply, the Government denied categorically that the aim of the contested measure, or rather the absence of such a measure, was to protect the traditional family or the morals of society (as had been claimed by the applicants). 133. In particular, in connection with Article 14, the Government distinguished the present case from that of Vallianatos. They noted that it was not possible yet to state that there existed a European common view on the matter and most states were, in fact, still deprived of this kind of regulatory framework. They further relied on the Court’s findings in Shalk and Kopf. The Government submitted that while the Italian State had engaged in the development of a number of bills concerning de facto couples, they had not given rise to unequal treatment or discrimination. Similarly, given the concrete recognition and legal judicial, legislative, and administrative protection awarded to same-sex couples (as described above), the conduct of the Italian State could not be considered discriminatory. Furthermore, the applicants had not given specific details of the suffering they alleged, and any abstract or generic damage could not be considered discriminatory. Had it been so, it could also be considered discriminatory against heterosexual unmarried couples, as no difference of treatment existed between the two mentioned types of couples. (d) Third-party interveners (i) Prof Robert Wintemute, on behalf of the non-governmental organisations FIDH (Fédération Internationale des ligues de Droit de l’Homme), AIRE Centre (Advice on Individual Rights in Europe), ILGA-Europe (European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association), ECSOL (European Commission on Sexual Orientation Law), UFTDU (Unione forense per la tutela dei diritti umani) and LIDU (Lega Italiana dei Diritti dell’Uomo). (α) positive obligation to provide some means of recognition 134. Those intervening submitted that there existed an emerging consensus, in European and other democratic societies, that a government may not limit a particular right, benefit or obligation to married couples, to the exclusion of same-sex couples who were legally prevented from getting married. They referred to the situation in March 2014, where at the time 44.7% of CoE member States had legislated in favour of same-sex relationships (see above for the current situation) and where Greece was yet to amend its legislation following the judgment in Vallianatos, as well as the Italian Constitutional Court’s invitation to the legislature to legislate accordingly. They noted that up until March 2014, outside Europe legislation had been adopted in Argentina, Australia[4], Canada[5], Mexico[6], New Zealand, South Africa and Uruguay. In the United States, 21 of 50 states (42%) and the District of Columbia had granted legal recognition to same-sex couples, through access to marriage, civil union or domestic partnership, as the result of legislation or a judicial decision. The interveners opined that there was a growing consensus in European and other democratic societies that same-sex couples must be provided with some means of qualifying for particular rights, benefits and obligations attached to legal marriage, and as noted in Smith and Grady v. the United Kingdom (nos. 33985/96 and 33986/96, § 104, ECHR 1999‑VI), even if relatively recent, the Court cannot overlook the widespread and consistently developing views and associated legal changes to the domestic laws of Contracting States on this issue. The Court had therefore to take account of this evolution and any further development until the date of its judgment. They considered that the Court’s approach in Goodwin (§ 85; see also §§ 91, 93, 103) to give more weight to “a continuing international trend” applied, mutatis mutandis, in the present case. 135. They submitted that judicial reasoning in a growing number of decisions required at least an alternative to legal marriage, if not access to legal marriage for same-sex couples. They noted that although many of the courts (mentioned below) found direct discrimination based on sexual orientation, and required equal access to legal marriage for same-sex couples, their reasoning supported a fortiori (at least) a finding of indirect discrimination based on sexual orientation, and (at least) a requirement that governments provide alternative means of legal recognition to same-sex couples. They noted the following: The first court to require equal access for same-sex couples to the rights, benefits and obligations of legal marriage, while leaving it to the legislature to decide whether this access would be through legal marriage or an alternative registration system, was the Vermont Supreme Court in Baker v. State, 744 A.2d 864 (1999): “We hold only that plaintiffs are entitled under ... the Vermont Constitution to obtain the same benefits and protections afforded ... to married opposite-sex couples. We do not purport to infringe upon the prerogatives of the Legislature ... other than to note ... [the existence of] ‘registered partnership’ acts, which ... establish an alternative legal status to marriage for same-sex couples, ... create a parallel ... registration scheme, and extend all or most of the same rights and obligations ... [T]he current statutory scheme shall remain in effect for a reasonable period of time to enable the Legislature to ... enact implementing legislation in an orderly and expeditious fashion.” A law on same-sex civil unions was passed in 2000. The British Columbia Court of Appeal went further in EGALE Canada (1 May 2003), 225 D.L.R. (4th) 472, holding that the exclusion of same-sex couples from legal marriage amounted to discrimination violating the Canadian Charter. It could not see (§ 127): “... how according same-sex couples the benefits flowing to opposite-sex couples in any way inhibits, dissuades or impedes the formation of heterosexual unions ...” The Ontario Court of Appeal agreed with the above in Halpern (10 June 2003), 65 O.R. (3d) 161 (§ 107): “... [S]ame-sex couples are excluded from ... the benefits that are available only to married persons ... Exclusion perpetuates the view that same-sex relationships are less worthy of recognition than opposite-sex relationships ... [and] offends the dignity of persons in same-sex relationships.” The Ontario Court ordered the issuance of marriage licences to same-sex couples that day. The British Columbia Court followed on 8 July 2003 (228 D.L.R. (4th) 416). A federal law (approved by the Supreme Court of Canada)[7] extended these appellate decisions to all ten provinces and three territories from 20 July 2005.[8] On 18 November 2003 the Massachusetts Supreme Judicial Court reached the same conclusion as the Canadian courts in Goodridge, 798 N.E.2d 941: “The question before us is whether, consistent with the Massachusetts Constitution, the [State] may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex ... We conclude that it may not.” On 30 November 2004, South Africa’s Supreme Court of Appeal agreed with the Canadian and Massachusetts courts, and restated the common-law definition of marriage as: “the union between two persons to the exclusion of all others for life.”[9] On 1 December 2005, South Africa’s Constitutional Court concluded that the remaining statutory obstacle to marriage for same‑sex couples was discriminatory (§ 71): “ ... The exclusion of same-sex couples from ... marriage ... represents a harsh if oblique statement by the law that same-sex couples are outsiders ... that their need for affirmation and protection of their intimate relations as human beings is somehow less than that of heterosexual couples ... that their capacity for love, commitment and accepting responsibility is by definition less worthy of regard than that of heterosexual couples ...”[10] South Africa’s Parliament responded by enacting the Civil Union Act (No. 17 of 2006, in force on 30 November 2006), allowing any couple, different-sex or same-sex, to contract a “civil union” and choose whether it should be known as a ‘marriage’ or a ‘civil partnership’. On 25 October 2006, in Lewis v. Harris, 908 A.2d 196 (2006), the New Jersey Supreme Court adopted the same approach as the Vermont Supreme Court: “Although we cannot find that a fundamental right to same-sex marriage exists in this State [cf. Schalk & Kopf], the unequal dispensation of rights and benefits to committed same-sex partners can no longer be tolerated under our State Constitution. With this State’s legislative and judicial commitment to eradicating sexual orientation discrimination as our backdrop, we now hold that denying rights and benefits to committed same-sex couples ... given to their heterosexual counterparts violates the equal protection guarantee ... [T]he Legislature must either amend the marriage statutes to include same-sex couples or create a parallel statutory structure, which will provide for, on equal terms, the rights and benefits enjoyed and burdens and obligations borne by married couples. ... The name to be given to the statutory scheme ..., whether marriage or some other term, is a matter left to the democratic process.” A law on same-sex civil unions was passed in 2006. On 15 May 2008 the California Supreme Court decided In re Marriage Cases, 183 P.3d 384 (2008). It found that legislation excluding same-sex couples from legal marriage breached (prima facie): (a) their fundamental right to marry, an aspect of the right of privacy; and (b) their right to equal protection based on sexual orientation, a ‘suspect classification’. It subjected the legislation to ‘strict scrutiny’ and found that it was not ‘necessary’ to further a ‘compelling constitutional interest’, even though same-sex couples could acquire nearly all the rights and obligations attached to marriage by California law through a “domestic partnership”.[11] On 10 October 2008 the Connecticut Supreme Court agreed with the California Court in Kerrigan v. Commissioner of Public Health, 957 A.2d 407 (2008). On 3 April 2009 in Varnum v. Brien, 763 N.W.2d 862 (2009), the Iowa Supreme Court agreed with the decisions in Massachusetts, California and Connecticut: “[C]ivil marriage with a person of the opposite sex is as unappealing to a gay or lesbian person as civil marriage with a person of the same sex is to a heterosexual. Thus, the right of a gay or lesbian person ... to enter into a civil marriage only with a person of the opposite sex is no right at all. ... State government can have no religious views, either directly or indirectly, expressed through its legislation. ... This ... is the essence of the separation of church and state. ... [C]ivil marriage must be judged under our constitutional standards of equal protection and not under religious doctrines or the religious views of individuals ... [O]ur constitutional principles ... require that the state recognize both opposite-sex and same-sex civil marriage.” On 5 May 2011 Brazil’s Supremo Tribunal Federal (STF) interpreted Brazil’s Constitution as requiring that existing legal recognition of ‘stable unions’ (cohabitation outside marriage) include same-sex couples.[12] On 25 October 2011 Brazil’s Superior Tribunal de Justiça (STJ) ruled in Recurso Especial no. 1.183.378/RS that, in the absence of an express prohibition (as opposed to authorisation) of same-sex marriage in Brazilian law, two women could convert their ‘stable union’ into a marriage under Article 1726 of the Civil Code (“A stable union can be converted into a marriage at the request of the partners before a judge and following registration in the Civil Registry”). On 14 May 2013, relying on the decisions of the STF and the STJ, the Conselho Nacional de Justiça (CNJ, which regulates the judiciary but is not itself a court, Resolução No. 175) ordered all public officials authorised to marry couples, or to convert ‘stable unions’ into marriages, to do so for same-sex couples. A constitutional challenge to the resolution of the CNJ by the Partido Social Cristão has been pending in the STF since 7 June 2013: Ação Direta de Inconstitucionalidade (ADI) 4966. It seems likely that the STF will endorse the reasoning of the STJ and the CNJ. On 26 July 2011 Colombia’s Constitutional Court “exhorted” Colombia’s Congress to legislate to provide same-sex couples with the same rights as married different-sex couples. Congress refused to do so, triggering the Court’s default remedy from 20 June 2013: same-sex couples have the right to appear before a notary or judge to “formalise and solemnise their contractual link”.[13] On 5 December 2012 Mexico’s Supreme Court decided that three same‑sex couples in the state of Oaxaca had the right under the federal constitution to marry.[14] On 19 December 2013 in Griego v. Oliver, 316 P.3d 865 (2013), the New Mexico Supreme Court became the fifth state supreme court to require equal access to marriage for same-sex couples: “We conclude that the purpose of New Mexico marriage laws is to bring stability and order to the legal relationship of committed couples by defining their rights and responsibilities as to one another, their children if they choose to raise children together, and their property. Prohibiting same-gender marriages is not substantially related to the governmental interests advanced ... or to the purposes we have identified. Therefore, barring individuals from marrying and depriving them of the rights, protections, and responsibilities of civil marriage solely because of their sexual orientation violates the Equal Protection Clause ... of the New Mexico Constitution. ... [T]he State of New Mexico is constitutionally required to allow same-gender couples to marry and must extend to them the rights, protections, and responsibilities that derive from civil marriage under New Mexico law.” 136. As regards national supreme courts in Europe, although no court has yet interpreted its national constitution as prohibiting the exclusion of same-sex couples from legal marriage, or requiring alternative means of legal recognition, on 9 July 2009 two of the five judges of Portugal’s Tribunal Constitucional dissented from the majority’s decision to uphold the exclusion.[15] On 2 July 2009, Slovenia’s Constitutional Court held in Blažic & Kern v. Slovenia (U-I-425/06-10) that same-sex registered partners must be granted the same inheritance rights as different-sex spouses. On 7 July 2009, Germany’s Federal Constitutional Court held (1 BvR 1164/07) that same-sex registered partners and different-sex spouses must be granted the same survivor’s pensions. And, since 22 September 2011, Austria’s Constitutional Court has issued five decisions finding that (same-sex) registered partners must have the same rights as (different-sex) married couples.[16] 137. Those intervening further noted that the Parliamentary Assembly of the CoE (PACE) has recommended: (a) that member States “review their policies in the field of social rights and protection of migrants ... to ensure that homosexual partnership[s] and families are treated on the same basis as heterosexual partnerships and families” (Recommendation 1470 (2000)); and (b) that they “adopt legislation which makes provision for registered [same-sex] partnerships”.[17] The EU’s European Parliament first called for equal treatment of different-sex and same-sex couples in a 1994 resolution seeking to end “the barring of [same-sex] couples from marriage or from an equivalent legal framework”.[18] 138. In 2004, the EU’s Council amended the Staff Regulations to provide for benefits for the non-marital partners of EU officials: “non-marital partnership shall be treated as marriage provided that ... the couple produces a legal document recognised as such by a member State ... acknowledging their status as non-marital partners, ... [and] ... has no access to legal marriage in a member State”.[19] 139. Finally, in 2008, the CoE’s Committee of Ministers agreed that: “A staff member who is registered as a stable non-marital partner shall not be discriminated against, with regard to pensions, leave and allowances under the Staff Regulations ..., vis-à-vis a married staff member provided that ...: (i.) the couple produces a legal document recognised as such by a member state ... acknowledging their status as non-marital partners; ... (v.) the couple has no access to legal marriage in a member state.”[20] (β) Discrimination 140. Those intervening considered that, even assuming that the Convention did not yet require equal access to legal marriage for same-sex couples, it was (at least) indirect discrimination based on sexual orientation to limit particular rights or benefits to married different-sex couples, but provide no means for same-sex couples to qualify. Referring to Thlimmenos v. Greece and D.H. and Others v. the Czech Republic ([GC], no. 57325/00, ECHR 2007‑IV), they considered that failure to treat same-sex couples differently because of their legal inability to marry, by providing them with alternative means of qualifying for the right or benefit, required an objective and reasonable justification. They noted that indirect discrimination, as defined in Council Directive 2000/78/EC, Art. 2(2)(b), occurs when “an apparently neutral ... criterion ... would put persons having a ... particular sexual orientation at a particular disadvantage compared with other persons unless [it] is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.” In their view, to avoid indirect discrimination against same-sex couples, governments must grant them an exemption from a requirement that they be legally married to qualify for particular rights or benefits. This meant, for example, that a public-sector employer or pension scheme could maintain a marriage requirement for different-sex couples[21] (just as the rule on felony convictions could be maintained in Thlimmenos), but must exempt same-sex couples and find some alternative means for them to qualify (example, a civil union or registered partnership certificate, a sworn statement, or other evidence of a committed relationship). 141. In Christine Goodwin (cited above), the Grand Chamber required CoE member States to legally recognise gender reassignment, but left the details of recognition to each member State. Similarly, an obligation to exempt same-sex couples from a marriage requirement, to avoid indirect discrimination, would leave to member States the choice of the method used to do so. A member State would find at least five options within its margin of appreciation: (1) it could grant same-sex couples who could prove the existence of their relationship for a reasonable period a permanent exemption from the marriage requirement;[22] (2) it could grant the same exemption to unmarried different-sex couples; (3) it could grant a temporary exemption to same-sex couples until it had created an alternative registration system, with a name other than marriage, allowing same-sex couples to qualify; (4) it could grant access to the same system to different‑sex couples; or (5) if it did not wish to grant the right or benefit to unmarried couples, or to create an alternative registration system, it could grant a temporary exemption to same-sex couples until it had had time to pass a law granting them equal access to legal marriage. It could also decide (subject to subsequent ECtHR supervision) whether any exceptions could be justified, for example relating to parental rights. 142. The principle that marriage requirements discriminate indirectly against same-sex couples was concisely stated by the legal report on homophobia published by the European Union’s Agency for Fundamental Rights in June 2008.[23] The report concluded (at pp. 58-59, emphasis added) that “any measures denying to same-sex couples benefits ... available to opposite-sex married couples, where marriage is not open to same-sex couples, should be treated presumptively as a form of indirect discrimination on grounds of sexual orientation”, and that “international human rights law complements EU law, by requiring that same-sex couples either have access to an institution such as ... registered partnership[,] that would provide them with the same advantages ... [as] marriage, or ... that their de facto durable relationships extend[ ] such advantages to them”. According to Advocate General Jääskinen of the Court of Justice of the European Union, in his opinion of 15 July 2010, in Case C-147/08, Römer v. Freie und Hansestadt Hamburg: “(§ 76) It is the [EU] Member States that must decide whether or not their national legal order allows any form of legal union available to homosexual couples, or whether or not the institution of marriage is only for couples of the opposite sex. In my view, a situation in which a Member State does not allow any form of legally recognised union available to persons of the same sex may be regarded as practising discrimination on the basis of sexual orientation, because it is possible to derive from the principle of equality, together with the duty to respect the human dignity of homosexuals, an obligation to recognise their right to conduct a stable relationship within a legally recognised commitment. However, in my view, this issue, which concerns legislation on marital status, lies outside the sphere of activity of [EU] law.” Those intervening contended that the potential discrimination noted by the Advocate General fell outside the scope of EU law, but fell squarely within the scope of the Convention, which applies to all legislation of CoE member States, including in the area of family law. 143. Those intervening noted that according to the Court’s case-law differences in treatment based on sexual orientation were analogous to difference in treatment based on race, religion and sex, and could only be justified by particularly serious reasons. This was relevant for the purposes of the proportionality test in which “It must also be shown that it was necessary in order to achieve that aim to exclude ... persons living in a homosexual relationship ...” (see Karner v. Austria, no. 40016/98, § 41, ECHR 2003‑IX) The Court found no evidence of necessity where there was a difference of treatment between unmarried different-sex couples and unmarried same-sex couples. Those intervening considered that the necessity test should also be applied to the prima facie indirect discrimination created by an apparently neutral marriage requirement. Such a requirement failed to treat same-sex couples, who are legally unable to marry, differently from different-sex couples who were legally able to marry but had neglected to do so, or had chosen not to do so (because of a decision by one or both partners). The Court’s reasoning in Vallianatos (cited above, § 85) concerning the burden of proof being on the Government, also applied mutatis mutandis to the present case. (ii) Associazione Radicale Certi Diritti (ARCD) 144. The ARCD submitted that a survey carried out (amongst Italians aged between 18 and 74) in 2011 by the ISTAT[24] (Italian institute for statistics) found as follows: 61.3% thought that homosexuals were discriminated against or severely discriminated against; 74.8% thought that homosexuality was not a threat to the family; 65.8% declared themselves in agreement with the content of the phrase “It is possible to love a person of a different sex or the same sex, love is what is important”; 62.8% of those responding to the survey agreed with the phrase “it is just and fair for a homosexual couple living as though they were married to have before the law the same rights as a married heterosexual couple”; 40.3% of the one million homosexuals or bisexuals living in central Italy declared themselves to have been discriminated against; the 40.3% increases to 53.7% if discrimination clearly based on homosexual or bisexual orientation is added in relation to the search for apartments (10.2%), their relations with neighbours (14.3%), their needs in the medical sector (10.2%) or in relations in with others in public places, offices or on public transport (12.4%). 145. Those intervening submitted that to date a same-sex partner was “recognised” in written legislation only in limited cases, namely: Article 14 quarter and Article 18 of the prison regulations, through which cohabitees have the right to visit the person incarcerated; Law no. 91/99 concerning organ donation, where the partner more uxorio must be informed of the nature and circumstances surrounding the removal of the organ. They also have the right to object to such a procedure; Article 199 (3) (a) of the Code of Criminal Procedure concerning the right not to testify against a partner; Article 681 of the Code of Criminal Procedure regarding presidential pardon which may be signed by a cohabitee; Circular no. 8996 issued by the Italian Minister for the Interior of 26 October 2012, which had as its object same-sex unions and residence permits in connection with legislative decree no. 30/2007; The inclusion in the medical insurance scheme of the partners of homosexual parliamentarians; 146. In this connection domestic judges made various pronouncements, namely: Judgment no. 404/88 of the Constitutional Court, which found that it was unconstitutional to evict a cohabiting surviving partner from a leased property. By means of the judgment of the Court of Cassation no. 5544/94 this right was extended to same-sex couples living more uxorio; (see also judgment of the Court of Cassation no. 33305/02 regarding rights to sue as a civil party for civil damage); Ordinance no. 25661/10 of the Court of Cassation of 17 December 2010, which found that the right of entry [to Italian territory] and stay for the purposes of family reunification with an Italian citizen is solely regulated by EU directives. Judgment no. 1328/11 of the Court of Cassation, which held that the notion of “spouse” must be understood according to the judicial regime where the marriage was celebrated. Thus, a foreigner who marries an EU national in Spain must be considered related for the purposes of their stay in Italy; Judgment no. 9965/11 of the Milan Tribunal (at first instance) of 13 June 2011 which recognised the right of a homosexual partner to compensation following the loss suffered pursuant to the death of the partner in a traffic accident; Judgment no. 7176/12 of the Milan Court of Appeal, Labour Section, (mentioned above) which confirmed that a same-sex partner had the right to be covered under the employed partner’s medical insurance. 147. The ARCD further referred to the importance of the findings in judgments nos. 138/10 and 4184/12 (for both, see Relevant domestic law above) as well as those in the Tribunal of Reggio Emilia’s ordinance of 13 February 2012. These decisions went to prove that Italian jurisprudence had assimilated the relevant notions, and the meticulous reasoning of the decisions (particularly that of the Court of Cassation, no. 4184/12) left no room for future U-turns on the matter. 148. In conclusion, the ARCD noted that given that the Court had established that same-sex couples had the same protection under Article 8 as different-sex couples did, the recognition of their right to some kind of a union was desirable to ensure such protection. (iii) European Centre for Law and Justice (ECLJ) 149. The ECLJ feared that if the Court established that same-sex couples had a right to recognition in the form of a civil union, the next issue would be what rights to attach to such a union, in particular in connection with procreation. They noted that in Vallianatos the Court had not established such an obligation, but had solely considered that to provide for such unions for heterosexual couples but not for same-sex couples gave rise to discrimination. It followed that the Court could not find a violation in the present case. 150. In their view, Article 8 did not oblige States to provide a legal framework beyond that of marriage to safeguard family life. They considered that family life essentially concerned the relations between children and their parents. They noted that before the judgment in Schalk and Kopf the Court used to consider that in the absence of marriage it was only the existence of a child which brought into play the concept of family (they referred to Johnston and Others v. Ireland, 18 December 1986, Series A no. 112, and Elsholz v. Germany [GC], no. 25735/94, ECHR 2000‑VIII). This was in line with international instruments and the Convention. They considered that any recognition given to a couple by society depended on the couple’s contribution to the common good through founding a family, and definitely not on the basis that the couple had feelings for each other, that being a matter concerning private life only. 151. The Centre, intervening, noted that Article 8 § 2 set limits on the protection of family life by the State. Such limits justified the refusal of the State to recognise certain families, such as polygamous or incestuous ones. In their view, Article 8 did not provide an obligation to give non-married couples a status equivalent to married ones. This was a matter to be regulated by the States and not the Convention. Neither could the States’ consent be assumed through the adoption of the CoE’s Committee of Ministers recommendation (2010)5. According to the ECLJ, during the preparatory work of the commission of experts and rapporteurs on the mentioned text the States refused to recommend the adoption of a legal framework for non-married couples, finally settling for a text which reads as follows: “25. Where national legislation does not recognise nor confer rights or obligations on registered same-sex partnerships and unmarried couples, member states are invited to consider the possibility of providing, without discrimination of any kind, including against different sex couples, same-sex couples with legal or other means to address the practical problems related to the social reality in which they live.” 152. ECLJ considered that although the Court had to interpret the Convention as a living instrument, it could not substitute it, as it remained the principal reference. Otherwise, the Court would transform itself into an instrument of ideological actualisation on the basis of national legislations, in matters related to society – a role which surely did not fall within its competence. The intervener questioned whether it was prudent and respectful of the subsidiarity principle for the Court to supervise whether states were updating legislation according to evolving customs and morals (moeurs), as interpreted by a majority of judges. This would make the protection of human rights dependant less on the Convention and its protocols and more on the Court’s composition (as evidenced by the slight (10-7) majority in X and Others v. Austria [GC], no. 19010/07, ECHR 2013). They considered therefore that the Court should not usurp the role of States, especially given that the latter were free to add an additional protocol to the Convention had they wished to regulate sexual orientation (as was done to abolish the death penalty). 153. The ECLJ questioned why homosexuality was more acceptable than polygamy. They considered that if the legislator had to take account of an evolving society, then it had also to legislate in favour of polygamy and child marriage, even more so given that in many countries (such as Turkey, Switzerland, Belgium and the United Kingdom), there were more practising Muslims than same-sex couples. 154. They further referred to the comparative situations of States (discussed above), and added that referendums in favour of civil unions had been rejected by the majority of voters in Slovenia and Northern Ireland. 155. They considered that if the Court had to consider that an obligation to facilitate the common life of same-sex couples arose from Article 8 of the Convention, then such an obligation would need to relate solely to the specific needs of such couples and of society, allowing the State a margin of appreciation, and in their view the Italian State had fulfilled that duty of protection through judicial or contractual acts (as mainly explained by the Government). Further, they considered that protecting the family in its traditional sense constituted a legitimate aim justifying a difference in treatment (they referred to X and Others, cited above). They considered that since no obligation arose from the Convention, nor was there a right guaranteed by the State which fell within the ambit of the Convention, there was no room for a margin of appreciation. 156. As regards discrimination, the ECLJ considered that same-sex couples and different-sex couples were not in identical or similar situations, since the former could not procreate naturally. The difference was not one of sexual orientation but of sexual identity, based on objective biological causes, thus there was no room for justifying a difference in treatment. They considered that the States had an interest in protecting children, their birth and their well-being, as they were the common good of parents and society. If children stopped being at the heart of the family, then it would only be the concept of interpersonal relations which would subsist – an entirely individualistic notion. 157. They disapproved of the Court’s findings in Schalk and Kopf (§ 94), claiming that they were findings of a political not a juridical nature, which excluded children from being the essence of family life. Even worse, in Vallianatos (§ 49), the Grand Chamber considered that not even cohabitation was necessary to constitute family life. They also wondered whether stability of a relationship was a pertinent criterion (ibid., § 73). In this light they questioned what constituted family life, given that it no longer required a public commitment, or the presence of children, or cohabitation. It thus appeared that the existence of feelings was enough to establish family life. However, in their view, feelings could play a part in private life only, but not in family life. It followed that there was no objective definition of family life. This loss of definition was further reaffirmed in Burden v. the United Kingdom ([GC], no. 13378/05, ECHR 2008), and Stübing v. Germany (no. 43547/08, 12 April 2012). 158. The ECLJ submitted that the refusal to consider on an equal footing a marital family and a stable homosexual relationship was justified on the basis of the consequences connected to procreation and filiation, as well as the relationship between society and the State. In their view, to consider them as comparable would mean that all the rights applicable to married couples would also apply to them, including those related to parental issues, given that it would be illusory to allow them to marry but not to found a family. It would therefore mean accepting medically assisted procreation for female couples and surrogacy for male couples, with the consequences this would have for the children so conceived. As regards the relation with the State, they noted that a State wanting to define “family” would be a totalitarian state. Indeed, in their view, the drafters of the Convention wanted to safeguard the family from the actions of the State, and not allow the State to define the concept of family, according to the majority’s view of it – which was based on a view that it was the individual and not the family who was at the core of society. 2. The Court’s assessment (a) Article 8 (i) General principles 159. While the essential object of Article 8 is to protect individuals against arbitrary interference by public authorities, it may also impose on a State certain positive obligations to ensure effective respect for the rights protected by Article 8 (see, among other authorities, X and Y v. the Netherlands, 26 March 1985, § 23, Series A no. 91; Maumousseau and Washington v. France, no. 39388/05, § 83, 6 December 2007; Söderman v. Sweden [GC], no. 5786/08, § 78, ECHR 2013; and Hämäläinen v. Finland [GC], no. 37359/09, § 62, ECHR 2014). These obligations may involve the adoption of measures designed to secure respect for private or family life even in the sphere of the relations of individuals between themselves (see, inter alia, S.H. and Others v. Austria [GC], no. 57813/00, § 87, ECHR 2011, and Söderman, cited above, § 78). 160. The principles applicable to assessing a State’s positive and negative obligations under the Convention are similar. 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, the aims in the second paragraph of Article 8 being of a certain relevance (see Gaskin v. the United Kingdom, 7 July 1989, § 42, Series A no. 160, and Roche v. the United Kingdom [GC], no. 32555/96, § 157, ECHR 2005‑X). 161. The notion of “respect” is not clear-cut, especially as far as positive obligations are concerned: having regard to the diversity of the practices followed and the situations obtaining in the Contracting States, the notion’s requirements will vary considerably from case to case (see Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 72, ECHR 2002‑VI). Nonetheless, certain factors have been considered relevant for the assessment of the content of those positive obligations on States (see Hämäläinen, cited above, § 66). Of relevance to the present case is the impact on an applicant of a situation where there is discordance between social reality and the law, the coherence of the administrative and legal practices within the domestic system being regarded as an important factor in the assessment carried out under Article 8 (see, mutatis mutandis, Christine Goodwin, cited above, §§ 77-78; I. v. the United Kingdom [GC], no. 25680/94, § 58, 11 July 2002, and Hämäläinen, cited above, § 66). Other factors relate to the impact of the alleged positive obligation at stake on the State concerned. The question here is whether the alleged obligation is narrow and precise or broad and indeterminate (see Botta v. Italy, 24 February 1998, § 35, Reports 1998‑I) or about the extent of any burden the obligation would impose on the State (see Christine Goodwin, cited above, §§ 86-88). 162. In implementing their positive obligation under Article 8 the States enjoy a certain margin of appreciation. A number of factors must be taken into account when determining the breadth of that margin. In the context of “private life” the Court has considered that where a particularly important facet of an individual’s existence or identity is at stake the margin allowed to the State will be restricted (see, for example, X and Y, cited above, §§ 24 and 27; Christine Goodwin, cited above, § 90; see also Pretty v. the United Kingdom, no. 2346/02, § 71, ECHR 2002‑III). Where, however, there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, the margin will be wider (see X, Y and Z v. the United Kingdom, 22 April 1997, § 44, Reports 1997-II; Fretté v. France, no. 36515/97, § 41, ECHR 2002-I; and Christine Goodwin, cited above, § 85). There will also usually be a wide margin if the State is required to strike a balance between competing private and public interests or Convention rights (see Fretté, cited above, § 42; Odièvre v. France [GC], no. 42326/98, §§ 44‑49, ECHR 2003‑III; Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007‑I; Dickson v. the United Kingdom [GC], no. 44362/04, § 78, ECHR 2007‑V; and S.H. and Others, cited above, § 94). (ii) Recent relevant case-law and the scope of the present case 163. The Court has already been faced with complaints concerning the lack of recognition of same-sex unions. However, in the most recent case of Schalk and Kopf v. Austria, when the Court delivered judgment the applicants had already obtained the opportunity to enter into a registered partnership. Thus, the Court had solely to determine whether the respondent State should have had provided the applicants with an alternative means of legal recognition of their partnership any earlier than it did (that is, before 1 January 2010). Having noted the rapidly developing European consensus which had emerged in the previous decade, but that there was not yet a majority of States providing for legal recognition of same-sex couples (at the time nineteen states), the Court considered the area in question to be one of evolving rights with no established consensus, where States enjoyed a margin of appreciation in the timing of the introduction of legislative changes (§ 105). Thus, the Court concluded that, though not in the vanguard, the Austrian legislator could not be reproached for not having introduced the Registered Partnership Act any earlier than 2010 (see ibid., § 106). In that case the Court also found that Article 14 taken in conjunction with Article 8 did not impose an obligation on Contracting States to grant same-sex couples access to marriage (ibid, § 101). 164. In the present case the applicants still today have no opportunity to enter into a civil union or registered partnership (in the absence of marriage) in Italy. It is thus for the Court to determine whether Italy, at the date of the analysis of the Court, namely in 2015, failed to comply with a positive obligation to ensure respect for the applicants’ private and family life, in particular through the provision of a legal framework allowing them to have their relationship recognised and protected under domestic law. (iii) Application of the general principles to the present case 165. The Court reiterates that it has already held that same-sex couples are just as capable as different-sex couples of entering into stable, committed relationships, and that they are in a relevantly similar situation to a different-sex couple as regards their need for legal recognition and protection of their relationship (see Schalk and Kopf, § 99, and Vallianatos, §§ 78 and 81, both cited above). It follows that the Court has already acknowledged that same-sex couples are in need of legal recognition and protection of their relationship. 166. That same need, as well as the will to provide for it, has been expressed by the Parliamentary Assembly of the Council of Europe, which recommended that the Committee of Ministers call upon member States, among other things, “to adopt legislation making provision for registered partnerships” as long as fifteen years ago, and more recently by the Committee of Ministers (in its Recommendation CM/Rec(2010)5) which invited member States, where national legislation did not recognise nor confer rights or obligations on registered same-sex partnerships, to consider the possibility of providing same-sex couples with legal or other means to address the practical problems related to the social reality in which they live (see paragraphs 57 and 59 above). 167. The Court notes that the applicants in the present case, who are unable to marry, have been unable to have access to a specific legal framework (such as that for civil unions or registered partnerships) capable of providing them with the recognition of their status and guaranteeing to them certain rights relevant to a couple in a stable and committed relationship. 168. The Court takes note of the applicants’ situation within the Italian domestic system. As regards registration of the applicants’ same-sex unions with the “local registers for civil unions”, the Court notes that where this is possible (that is in less than 2% of existing municipalities) this action has merely symbolic value and is relevant for statistical purposes; it does not confer on the applicants any official civil status, and it by no means confers any rights on same-sex couples. It is even devoid of any probative value (of a stable union) before the domestic courts (see paragraph 115 above). 169. The applicants’ current status in the domestic legal context can only be considered a “de facto” union, which may be regulated by certain private contractual agreements of limited scope. As regards the mentioned cohabitation agreements, the Court notes that while providing for some domestic arrangements in relation to cohabitation (see paragraphs 41 and 129 above) such private agreements fail to provide for some basic needs which are fundamental to the regulation of a relationship between a couple in a stable and committed relationship, such as, inter alia, the mutual rights and obligations they have towards each other, including moral and material support, maintenance obligations and inheritance rights (compare Vallianatos, § 81 in fine, and Schalk and Kopf, § 109, both cited above). The fact that the aim of such contracts is not that of the recognition and protection of the couple is evident from the fact that they are open to anyone cohabiting, irrespective of whether they are a couple in a committed stable relationship (see paragraph 41 above). Furthermore, such a contract requires the persons to be cohabiting; however, the Court has already accepted that the existence of a stable union is independent of cohabitation (see Vallianatos, §§ 49 and 73). Indeed, in the globalised world of today various couples, married or in a registered partnership, experience periods during which they conduct their relationship at long distance, needing to maintain residence in different countries, for professional or other reasons. The Court considers that that fact in itself has no bearing on the existence of a stable committed relationship and the need for it to be protected. It follows that, quite apart from the fact that cohabitation agreements were not even available to the applicants before December 2013, such agreements cannot be considered as giving recognition and the requisite protection to the applicants’ unions. 170. Further, it has not been proved that the domestic courts could issue a statement of formal recognition, nor has the Government explained what would have been the implications of such a statement (see paragraph 82 above). While the national courts have repeatedly upheld the need to ensure protection for same sex-unions and to avoid discriminatory treatment, currently, in order to receive such protection the applicants, as with others in their position, must raise a number of recurring issues with the domestic courts and possibly even the Constitutional Court (see paragraph 16 above), to which the applicants have no direct access (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 70, 17 September 2009). From the case-law brought to the Court’s attention, it transpires that while recognition of certain rights has been rigorously upheld, other matters in connection with same-sex unions remain uncertain, given that, as reiterated by the Government, the courts make findings on a case-by-case basis. The Government also admitted that protection of same-sex unions received more acceptance in certain branches than in others (see paragraph 131 above). In this connection it is also noted that the Government persistently exercise their right to object to such claims (see, for example, the appeal against the decision of the Tribunal of Grosseto) and thus they show little support for the findings on which they are hereby relying. 171. As indicated by the ARCD the law provides explicitly for the recognition of a same-sex partner in very limited circumstances (see paragraph 146 above). It follows that even the most regular of “needs” arising in the context of a same-sex couple must be determined judicially, in the uncertain circumstances mentioned above. In the Court’s view, the necessity to refer repeatedly to the domestic courts to call for equal treatment in respect of each one of the plurality of aspects which concern the rights and duties between a couple, especially in an overburdened justice system such as the one in Italy, already amounts to a not-insignificant hindrance to the applicants’ efforts to obtain respect for their private and family life. This is further aggravated by a state of uncertainty. 172. It follows from the above that the current available protection is not only lacking in content, in so far as it fails to provide for the core needs relevant to a couple in a stable committed relationship, but is also not sufficiently stable – it is dependent on cohabitation, as well as the judicial (or sometimes administrative) attitude in the context of a country that is not bound by a system of judicial precedent (see Torri and Others v. Italy, (dec.), nos. 11838/07 and 12302/07, § 42, 24 January 2012). In this connection the Court reiterates that coherence of administrative and legal practices within the domestic system must be regarded as an important factor in the assessment carried out under Article 8 (see paragraph 161 above). 173. In connection with the general principles mentioned in paragraph 161 above, the Court observes that, it also follows from the above examination of the domestic context that there exists a conflict between the social reality of the applicants, who for the most part live their relationship openly in Italy, and the law, which gives them no official recognition on the territory. In the Court’s view an obligation to provide for the recognition and protection of same-sex unions, and thus to allow for the law to reflect the realities of the applicants’ situations, would not amount to any particular burden on the Italian State be it legislative, administrative or other. Moreover, such legislation would serve an important social need – as observed by the ARCD, official national statistics show that there are around one million homosexuals (or bisexuals), in central Italy alone. 174. In view of the above considerations, the Court considers that in the absence of marriage, same-sex couples like the applicants have a particular interest in obtaining the option of entering into a form of civil union or registered partnership, since this would be the most appropriate way in which they could have their relationship legally recognised and which would guarantee them the relevant protection – in the form of core rights relevant to a couple in a stable and committed relationship – without unnecessary hindrance. Further, the Court has already held that such civil partnerships have an intrinsic value for persons in the applicants’ position, irrespective of the legal effects, however narrow or extensive, that they would produce (see Vallianatos, cited above, § 81). This recognition would further bring a sense of legitimacy to same-sex couples. 175. The Court reiterates that in assessing a State’s positive obligations 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. Having identified above the individuals’ interests at play, the Court must proceed to weigh them against the community interests. 176. Nevertheless, in this connection the Court notes that the Italian Government have failed to explicitly highlight what, in their view, corresponded to the interests of the community as a whole. They however considered that “time was necessarily required to achieve a gradual maturation of a common view of the national community on the recognition of this new form of family”. They also referred to “the different sensitivities on such a delicate and deeply felt social issue” and the search for a “unanimous consent of different currents of thought and feeling, even of religious inspiration, present in society”. At the same time, they categorically denied that the absence of a specific legal framework providing for the recognition and protection of same-sex unions attempted to protect the traditional concept of family, or the morals of society. The Government instead relied on their margin of appreciation in the choice of times and the modes of a specific legal framework, considering that they were better placed to assess the feelings of their community. 177. As regards the breadth of the margin of appreciation, the Court notes that this is dependent on various factors. While the Court can accept that the subject matter of the present case may be linked to sensitive moral or ethical issues which allow for a wider margin of appreciation in the absence of consensus among member States, it notes that the instant case is not concerned with certain specific “supplementary” (as opposed to core) rights which may or may not arise from such a union and which may be subject to fierce controversy in the light of their sensitive dimension. In this connection the Court has already held that States enjoy a certain margin of appreciation as regards the exact status conferred by alternative means of recognition and the rights and obligations conferred by such a union or registered partnership (see Schalk and Kopf, cited above, §§ 108-09). Indeed, the instant case concerns solely the general need for legal recognition and the core protection of the applicants as same-sex couples. The Court considers the latter to be facets of an individual’s existence and identity to which the relevant margin should apply. 178. In addition to the above, of relevance to the Court’s consideration is also the movement towards legal recognition of same-sex couples which has continued to develop rapidly in Europe since the Court’s judgment in Schalk and Kopf. To date a thin majority of CoE States (twenty-four out of forty‑seven, see paragraph 55 above) have already legislated in favour of such recognition and the relevant protection. The same rapid development can be identified globally, with particular reference to countries in the Americas and Australasia (see paragraphs 65 and 135 above). The information available thus goes to show the continuing international movement towards legal recognition, to which the Court cannot but attach some importance (see, mutatis mutandis, Christine Goodwin, § 85, and Vallianatos, § 91, both cited above). 179. Turning back to the situation in Italy, the Court observes that while the Government is usually better placed to assess community interests, in the present case the Italian legislature seems not to have attached particular importance to the indications set out by the national community, including the general Italian population and the highest judicial authorities in Italy. 180. The Court notes that in Italy the need to recognise and protect such relationships has been given a high profile by the highest judicial authorities, including the Constitutional Court and the Court of Cassation. Reference is made particularly to the judgment of the Constitutional Court no. 138/10 in the first two applicants’ case, the findings of which were reiterated in a series of subsequent judgments in the following years (see some examples at paragraph 45 above). In such cases, the Constitutional Court, notably and repeatedly called for a juridical recognition of the relevant rights and duties of homosexual unions (see, inter alia, paragraph 16 above), a measure which could only be put in place by Parliament. 181. The Court observes that such an expression reflects the sentiments of a majority of the Italian population, as shown through official surveys (see paragraph 144 above). The statistics submitted indicate that there is amongst the Italian population a popular acceptance of homosexual couples, as well as popular support for their recognition and protection. 182. Indeed, in their observations before this Court, the same Italian Government have not denied the need for such protection, claiming that it was not limited to recognition (see paragraph 128 above), which moreover they admitted was growing in popularity amongst the Italian community (see paragraph 130 above). 183. Nevertheless, despite some attempts over three decades (see paragraphs 126 and 46-47 above) the Italian legislature has been unable to enact the relevant legislation. 184. In this connection the Court recalls that, although in a different context, it has previously held that “a deliberate attempt to prevent the implementation of a final and enforceable judgment and which is, in addition, tolerated, if not tacitly approved, by the executive and legislative branch of the State, cannot be explained in terms of any legitimate public interest or the interests of the community as a whole. On the contrary, it is capable of undermining the credibility and authority of the judiciary and of jeopardising its effectiveness, factors which are of the utmost importance from the point of view of the fundamental principles underlying the Convention (see Broniowski v. Poland [GC], no. 31443/96, § 175, ECHR 2004‑V). While the Court is aware of the important legal and factual differences between Broniowski and the present case, it nevertheless considers that in the instant case, the legislature, be it willingly or for failure to have the necessary determination, left unheeded the repetitive calls by the highest courts in Italy. Indeed the President of the Constitutional Court himself in the annual report of the court regretted the lack of reaction on behalf of the legislator to the Constitutional Court’s pronouncement in the case of the first two applicants (see paragraph 43 above). The Court considers that this repetitive failure of legislators to take account of Constitutional Court pronouncements or the recommendations therein relating to consistency with the Constitution over a significant period of time, potentially undermines the responsibilities of the judiciary and in the present case left the concerned individuals in a situation of legal uncertainty which has to be taken into account. 185. In conclusion, in the absence of a prevailing community interest being put forward by the Italian Government, against which to balance the applicants’ momentous interests as identified above, and in the light of domestic courts’ conclusions on the matter which remained unheeded, the Court finds that the Italian Government have overstepped their margin of appreciation and failed to fulfil their positive obligation to ensure that the applicants have available a specific legal framework providing for the recognition and protection of their same-sex unions. 186. To find otherwise today, the Court would have to be unwilling to take note of the changing conditions in Italy and be reluctant to apply the Convention in a way which is practical and effective. 187. There has accordingly been a violation of Article 8 of the Convention. (b) Article 14 in conjunction with Article 8 188. Having regard to its finding under Article 8 (see paragraph 187 above), the Court considers that it is not necessary to examine whether, in this case, there has also been a violation of Article 14 in conjunction with Article 8. III. ALLEGED VIOLATION OF ARTICLE 12 ALONE AND ARTICLE 14 READ IN CONJUNCTION WITH ARTICLE 12 OF THE CONVENTION 189. The applicants in application no. 18766/11 relied on Article 12 on its own, and argue that since the judgment in Schalk and Kopf (cited above), more countries have legislated in favour of gay marriage, and many more are in the process of discussing the issue. Therefore, given that the Convention is a living instrument, the Court should redetermine the question in the light of the position today. 190. All the applicants further complained that they had suffered discrimination as a result of the prohibition to marry applicable to them. Noting the Court’s recent acceptance in Schalk and Kopf of the applicability of Article 12 (apart from Article 8) to such situations, the applicants argued that while it was true that the Court held that the provision did not oblige states to confer such a right on homosexual couples, it was nevertheless for the Court to examine whether the failure to provide for same-sex marriage was justified in view of all the relevant circumstances. They argued that in the present cases it was particularly relevant that no other option was open for the applicants to have their unions legally recognised. Moreover, such exclusion could no longer be held as legitimate, given the social reality (according to a 2010 study by Eurispes 61.4% of Italians were in favour of some sort of union, 20.4% of whom were in favour of it being in the form of a marriage). To persist on denying certain rights to same-sex couples only continued to marginalise and stigmatise a minority group in favour of a majority with discriminatory tendencies. Lastly, they submitted that even assuming it could be considered legitimate it was clearly not proportionate, given the narrow margin of appreciation afforded to States when applying different treatment on the basis of sexual orientation. The same margin had to be considered narrow also in view of the fact that most States had in fact regulated for some form of civil union (see Schalk and Kopf, cited above, § 105). 191. The Court notes that in Schalk and Kopf the Court found under Article 12 that it would no longer consider that the right to marry must in all circumstances be limited to marriage between two persons of the opposite sex. However, as matters stood (at the time only six out of forty-seven CoE member States allowed same-sex marriage), the question whether or not to allow same-sex marriage was left to regulation by the national law of the Contracting State. The Court felt it must not rush to substitute its own judgment in place of that of the national authorities, who are best placed to assess and respond to the needs of society. It followed that Article 12 of the Convention did not impose an obligation on the respondent Government to grant a same-sex couple like the applicants access to marriage (§§ 61-63). The same conclusion was reiterated in the more recent Hämäläinen (cited above, § 96), where the Court held that while it is true that some Contracting States have extended marriage to same-sex partners, Article 12 cannot be construed as imposing an obligation on the Contracting States to grant access to marriage to same-sex couples. 192. The Court notes that despite the gradual evolution of States on the matter (today there are eleven CoE states that have recognised same-sex marriage) the findings reached in the cases mentioned above remain pertinent. In consequence the Court reiterates that Article 12 of the Convention does not impose an obligation on the respondent Government to grant a same-sex couple like the applicants access to marriage. 193. Similarly, in Schalk and Kopf, the Court held that Article 14 taken in conjunction with Article 8, a provision of more general purpose and scope, cannot be interpreted as imposing such an obligation either. The Court considers that the same can be said of Article 14 in conjunction with Article 12. 194. It follows that both the complaint under Article 12 alone, and that under Article 14 in conjunction with Article 12 are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 195. 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 196. The applicants in application no. 18766/11 claimed that they had suffered material damage, as a result of losses in leave days for family reasons as well as bonuses, and inability to enjoy a loan, losses which were however difficult to quantify. They further noted they had suffered non‑pecuniary damage, without making a specific claim in that respect. 197. The applicants in application no. 36030/11 claimed non-pecuniary damage in a sum to be determined by the Court, though they considered that EUR 7,000 for each applicant may be considered equitable in line with the award made in Vallianatos (cited above). They also requested the Court to make specific recommendations to the Government with a view to legislating in favour of civil unions for same-sex couples. 198. The Government submitted that the applicants had not suffered any actual damage. 199. The Court notes that the pecuniary claim of the applicants in applications no. 18766/11 is both unquantified and unsubstantiated. On the other hand, the Court considers that all the applicants have suffered non‑pecuniary damage, and awards the applicants EUR 5,000 each, plus any tax that may be chargeable to them, in this respect. 200. Lastly, in connection with the applicants’ request, the Court notes that it has found that the absence of a legal framework allowing for recognition and protection of their relationship violates their rights under Article 8 of the Convention. In accordance with Article 46 of the Convention, it will be for the respondent State to implement, under the supervision of the Committee of Ministers, appropriate general and/or individual measures to fulfil its obligations to secure the right of the applicants and other persons in their position to respect for their private and family life (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000‑VIII, Christine Goodwin, cited above, § 120, ECHR 2002‑VI; and S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 134, ECHR 2008). B. Costs and expenses 201. The applicants in application no. 18766/11 also claimed EUR 8,200 for costs and expenses incurred before the domestic courts and EUR 5,000 for those incurred before the Court. 202. The applicants in application no. 36030/11 claimed EUR 11,672.96 for costs and expenses incurred before this Court as calculated in accordance with Italian law and bearing in mind the complex issues dealt with in the case as well as the extensive observations, including those of the third parties. 203. The Government submitted that the applicants’ claims for expenses were “groundless and lacking any support”. 204. 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 rejects the claim for costs and expenses in the domestic proceedings, as it has not been substantiated by means of any documents. The Court, having considered the two claims made by the different lawyers and the lack of detail in the claim concerning application no. 18766/11, further considers it reasonable to award the sum of EUR 4,000 jointly, plus any tax that may be chargeable to the applicants in respect of application no. 18766/11, and EUR 10,000, jointly, plus any tax that may be chargeable to the applicants, to be paid directly into their representatives’ bank accounts, in respect of application no. 36030/11 for the proceedings before the Court. C. Default interest 205. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaints under Article 8 alone and Article 14 in conjunction with Article 8 admissible, and the remainder of the applications inadmissible; 2. Holds that there has been a violation of Article 8 of the Convention; 3. Holds that there is no need to examine the complaint under Article 14 in conjunction with Article 8 of the Convention; 4. Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts: (i) EUR 5,000 (five thousand euros) each, plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 4,000 (four thousand euros), jointly, to the applicants in application no. 18766/11, plus any tax that may be chargeable to the applicants, in respect of costs and expenses; (iii) EUR 10,000 (ten thousand euros), jointly, to the applicants in application no. 36030/11, plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be paid directly into their representatives’ bank accounts; (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 21 July 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Françoise Elens-PassosPäivi HirveläRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Mahoney joined by Judges Tsotsoria and Vehabović is annexed to this judgment. P.H.F.E.P. CONCURRING OPINION OF JUDGE MAHONEY JOINED BY JUDGES TSOTSORIA AND VEHABOVIĆ 1. We, the three judges subscribing to this concurring opinion, have voted with our four colleagues for a violation of Article 8 of the Convention in the present case, but on the basis of different, narrower reasoning. In short, we find no need to assert that today Article 8 imposes on Italy what our colleagues characterise as a positive obligation to provide same-sex couples such as the applicants with a specific legal framework providing for the recognition and protection of their same-sex unions (paragraph 185 in fine of the judgment). What is decisive for us in the present case may be briefly summarised as follows: - the Italian State has chosen, through its highest courts, notably the Constitutional Court, to declare that two people of the same sex living in stable cohabitation are invested by the Italian Constitution with a fundamental right to obtain juridical recognition of the relevant rights and duties attaching to their union; - it is this voluntary, active intervention by the Italian State into the sphere of personal relations covered by Article 8 that attracts the application of the Convention’s guarantee of the right to respect for private and family life, without there being any call to invoke the pre-existence of a positive Convention obligation; - the requirements flowing from Article 8 as regards any State regulation of the exercise of the right to respect for private and family life were not met in the circumstances of the present case because of the defective nature of the follow-up, within the Italian legal order, to the Constitutional Court’s authoritative judicial declaration of a constitutional entitlement for persons in the position of the applicants to some form of adequate legal recognition of stable same-sex unions. This reasoning is explained in further detail below. 2. In its judgment no. 138 of 15 April 2010 in relation to the constitutional challenges of the applicants Mr Oliari and Mr A, the Italian Constitutional Court, while rejecting the arguments under Article 29 of the Constitution (on the institution of marriage), ruled that, by virtue of Article 2 of the Constitution, two people of the same sex in stable cohabitation have a fundamental right to freely express their personality in a couple, obtaining – in time and by the means and the limits to be set by law – juridical recognition of the relevant rights and duties (these are the words in which the ruling is summarised in paragraph 16 of the judgment; the text of Articles 2 and 29 of the Italian Constitution is set out in paragraph 33 of the judgment). This ruling represents an authoritative statement of the regulation, within the Italian legal order, of the applicants’ right to respect for their private and family life as far as the legal status that should be given to their union as a same-sex couple is concerned. The “fundamental right” thereby recognised to obtain juridical recognition of the relevant rights and duties attaching to a same-sex union is one deriving, not from any positive obligation enshrined in the Convention, but from the wording of Article 2 of the Italian Constitution. 3. Under the constitutional arrangements in Italy, while the Constitutional Court may make a pronouncement of unconstitutionality in respect of existing legislation, it has no power to fill a legislative lacuna even though, as in its judgment no. 138/2010, it may have identified that lacuna as entailing a situation which is not compatible with the Constitution. Thus, in the case of Mr Oliari and Mr A in 2010, it was not for the Constitutional Court to proceed to the formulation of the appropriate legal provisions, but for the Italian Parliament (see paragraphs 36 and 45 of the present judgment for similar explanations of its powers given by the Constitutional Court in its subsequent rulings reiterating the general conclusion stated in judgment no. 138/10). As the present judgment (at paragraph 82) puts it, “the Constitutional Court ... could not but invite the legislature to take action” (see likewise paragraphs 84 and 180 in fine of the judgment). In this connection it is worth citing the report that the then President of the Constitutional Court addressed to the highest Italian constitutional authorities in 2013 (quoted at paragraph 43 of the judgment): “Dialogue is sometimes more difficult with the [Constitutional] Court’s natural interlocutor. This is particularly so in cases where it solicits the legislature to modify a legal norm which it considered to be in contrast with the Constitution. Such requests are not to be underestimated. They constitute, in fact, the only means available to the [Constitutional] Court to oblige the legislative organs to eliminate any situation which is not compatible with the Constitution, and which, albeit identified by the [Constitutional] Court, does not lead to a pronouncement of anti-constitutionality. ... A request of this type which remained unheeded was that made in judgment no. 138/10, which, while finding the fact that a marriage could only be contracted by persons of a different sex to be constitutional compliant, also affirmed that same-sex couples had a fundamental right to obtain legal recognition, with the relevant rights and duties, of their union. It left it to Parliament to provide for such regulation, by the means and within the limits deemed appropriate.” In sum, as explained by the then President of the Constitutional Court: - the Constitutional Court had affirmed the fundamental right of same-sex couples under the Italian Constitution to obtain legal recognition of their union; - however, the only means available to the Constitutional Court to “oblige” the legislative organs to eliminate the unconstitutional lacuna in Italian law denying same-sex couples this nationally guaranteed fundamental right was to “solicit”, or address a “request” to, Parliament to take the necessary legislative action. The applicants in application no. 36030/11 added their explanation that “Constitutional Court judgment no. 138/10 had the effect of affirming the existence of ... a constitutional duty upon the legislature to enact an appropriate general regulation on the recognition of same-sex unions, with consequent rights and duties for partners” (paragraph 114 of the judgment). 4. Yet, to date, five years have elapsed since the judgment of the Constitutional Court, with no appropriate legislation having been enacted by the Italian Parliament. The applicants are thus in the unsatisfactory position of being recognised by the Constitutional Court as enjoying under Italian constitutional law an inchoate “fundamental right” affecting an important aspect of the legal status to be accorded to their private and family life, but this inchoate “fundamental right” has not received adequate concrete implementation from the competent arm of government, namely the legislature. The applicants, like other same-sex couples in their position, have been left in limbo, in a state of legal uncertainty as regards the legal recognition of their union to which they are entitled under the Italian Constitution. 5. On the basis of the foregoing facts, it is not necessary for the Court to decide whether Italy has a positive obligation under paragraph 1 of Article 8 of the Convention to accord appropriate legal recognition within its legal order to the union of same-sex couples. The declaration by the Constitutional Court that Article 2 of the Italian Constitution confers on two people of the same sex living in stable cohabitation a “fundamental right” under domestic constitutional law to obtain juridical recognition of their union constitutes an active intervention by the State into the sphere of private and family life covered by Article 8 of the Convention. Judgment no. 138/10 was not an isolated ruling: in the words of the present judgment (at paragraph 180), “in Italy the need to recognise and protect such relationships has been given a high profile by the highest judicial authorities, including the Constitutional Court and the Court of Cassation”, with the Constitutional Court repeatedly calling on Parliament to adopt the requisite legislation giving juridical recognition of the relevant rights and duties of homosexual unions. In our view, this voluntary action of the State in relation to the legal regulation of the applicants’ private and family life in itself and of itself attracts the application of Article 8 of the Convention in their cases and the accompanying obligation on the Italian State to comply with the requirements flowing from Article 8, notably those set out in its paragraph 2. 6. Undeniably, given what the respondent Government describe as the difficult exercise of reaching a balance between “different sensitivities on such a delicate and deeply felt social issue” (paragraph 126 of the judgment), the Italian State is to be recognised as having a certain margin of appreciation in regard both to the choice of the precise legal status to be accorded to same-sex unions and to the timing for the enactment of the relevant legislation (see paragraph 177 of the judgment, which makes a similar point). 7. On the other hand, whatever constitutional framework and distribution of powers between the arms of government a Contracting State may choose to adopt, there is an overall duty of trust and good faith owed by the State and its public authorities to the citizen in a democratic society governed by the rule of law (see, mutatis mutandis, Broniowski v. Poland [GC], no. 31443/96, §§173 and 175, ECHR 2004-V). In our view, despite the margin of appreciation available to the Italian State, this duty of trust was not respected in the present case as regards the follow-up to judgment no. 138/10 of the Constitutional Court in which an unconstitutional lacuna, involving the denial of a “fundamental right”, was identified as existing in the Italian legal order. There is, and has remained for five years, a discordance between the Constitutional Court’s declaration as to the entitlement of a given category of individuals under the Constitution and the action, or rather inaction, of the Italian legislature, as the competent arm of government, in implementing that entitlement. The beneficiaries of the declaration of the Constitutional Court as to the incompatibility with the Constitution of the lack of adequate legal recognition of same-sex unions have been denied the level of protection of their private and family life to which they are entitled under Article 2 of the Italian Constitution. 8. Furthermore, Italian law regarding the legal status to be accorded to same-sex unions has been left in a state of unregulated uncertainty over an excessive period of time. This enduring situation of legal uncertainty, relied on in the present judgment (for example, at paragraphs 170, 171 and 184 in fine), is such as to render the domestic regulation of the applicants’ same-sex union incompatible with the democratic concept of “law” inherent in paragraph 2’s requirement that any “interference” with the right to respect for private and family life be “in accordance with the law”. This is especially so since, as the judgment points out (at paragraph 171), “the necessity to refer repeatedly to the domestic courts to call for equal treatment in respect of each one of the plurality of aspects which concern the rights and duties between a couple, especially in an overburdened justice system such as the one in Italy, already amounts to a not-insignificant hindrance to the applicants’ efforts to obtain respect for their private and family life”. What is more, the judgment adds (at paragraph 170), the Government persistently exercise their right to object to such claims of equal treatment brought before the national courts on a case-by-case basis in various branches of the law by same-sex couples. 9. Like our colleagues, we note that “the Italian Government have failed to explicitly highlight what, in their view, corresponded to the interests of the community as a whole” in order to explain the omission of the Parliament to legislate so as to implement the fundamental constitutional right identified by the Constitutional Court (see paragraph 176 of the judgment). We likewise agree with our colleagues in rejecting the various arguments that the Government did adduce by way of justification of this continuing omission, notably the arguments as to registration of same-sex unions by some municipalities, private contractual agreements and the capacity of the domestic courts on the domestic law as it stands to afford adequate legal recognition and protection (see, in particular, paragraphs 81-82 and 168-172). As our colleagues point out, it is also significant that “there is amongst the Italian population a popular acceptance of homosexual couples, as well as popular support for their recognition and protection”, such that the rulings of the highest judicial authorities in Italy, including the Constitutional Court and the Court of Cassation, reflect the sentiments of a majority of the community in Italy (paragraphs 180-181 of the judgment). 10. Where we part company with our colleagues is as regards the question where to situate the analysis of the facts of the case for the purposes of Article 8 of the Convention. Our colleagues are careful to limit their finding of the existence of a positive obligation to Italy and to ground their conclusion on a combination of factors not necessarily found in other Contracting States. To begin with, we are not sure that such a limitation of a positive obligation under the Convention to local conditions is conceptually possible. Secondly, at some points our colleagues nonetheless appear to rely, at least partly, on general reasoning capable of being read as implying a free-standing positive obligation incumbent on all the Contracting States to provide a legal framework for same-sex unions (see, for example, paragraph 165 of the judgment). It might conceivably be reasoned that, on analogy with A, B and C v. Ireland [GC] (application no. 25579/05, ECHR 2010, §§253, 264 and 267), a “positive obligation” on the Italian State to enact adequate implementing legislation arises from Article 2 of the Italian Constitution as interpreted by the Constitutional Court. That may well be true as a matter of Italian constitutional law, as argued by the applicants in application no. 36030/11 (see paragraph 3 in fine above of the present concurring opinion). However, this is not what is normally meant by a positive obligation being imposed by a Convention Article. In particular, whenever a State chooses to regulate the exercise of an activity coming within the scope of a Convention right, it is obliged to do so in compliance with the express and inherent requirements of the Convention Article in question – for example, in a manner that does not involve excessive legal uncertainty for the Convention right-holder. In such circumstances, we are in the realm of right-regulation, not the realm of positive Convention obligations. This is why we have urged (at paragraph 5 above in the present concurring opinion) that the applicants’ grievance should be analysed in terms of defective State intervention in the sphere of private and family life, rather than in terms of failure to fulfil a positive Convention obligation. 11. In conclusion, for us, the unsatisfactory state of the relevant domestic law on the recognition of same-sex unions, displaying a prolonged failure to implement a nationally recognised fundamental constitutional right in an effective manner and giving rise to continuing uncertainty, renders the active intervention of the Italian State into the regulation of the applicants’ right to respect for their private and family life incompatible with the requirements of Article 8 of the Convention. 12. The foregoing concurring opinion is not to be taken as expressing a view on whether, in the present-day conditions of 2015 in the light of evolving attitudes in democratic society in Europe, paragraph 1 of Article 8 should now be interpreted as embodying, for Italy or generally for all Contracting States, a positive obligation to accord appropriate legal recognition and protection to same-sex unions. Our point is that there is no necessity in the present case to have recourse to such a “new” interpretation, as in any event a finding in favour of the applicants is dictated on a narrower ground on the basis of existing jurisprudence and the existing classic analysis of the requirements accompanying active State intervention regulating the exercise of the right under Article 8 of the Convention to respect for private and family life. APPENDIX Application no. 18766/11 No. Firstname LASTNAME Birth date Birth year Nationality Place of residence Representative A. 1976 Italian Trento A. SCHUSTER Enrico OLIARI 15/07/1970 1970 Italian Trento A. SCHUSTER Application no. 36030/11 No. Firstname LASTNAME Birth date Birth year Nationality Place of residence Representative Gian Mario FELICETTI 18/06/1972 1972 Italian Lissone M.E. D’AMICO Riccardo PERELLI CIPPO 23/03/1959 1959 Italian Milan M.E. D’AMICO Roberto ZACHEO 10/05/1960 1960 Italian Milan M.E. D’AMICO Riccardo ZAPPA 29/10/1964 1964 Italian Lissone M.E. D’AMICO [1]. http://contrattoconvivenza.com/ last accessed June 2015 [2]. On 22 May 2015 Ireland voted in favour of same-sex marriage in a referendum. In Finland, a bill legalising same-sex marriage was approved by Parliament on 12 December 2014 and signed by the President on 20 February 2015. The Marriage Act will not take effect until 1 March 2017. [3]. Article 1 § 2 of law no. 7/2001, as amended by law no. 23/2010 of 30 August 2010 – “A free union is the juridical situation between two persons, who irrespective of their sex, have been living in conditions analogous to those of married couples for more than two years.” [4]. Alternative registration systems in 5 of 8 states and territories, in addition to recognition of cohabiting same-sex couples at the federal level in all 8 states and territories. [5]. Federal legislation on capacity to marry applying to all 13 provinces and territories, in addition to recognition of cohabiting same-sex couples at the federal level and in all 13 provinces and territories, and civil unions in Québec. [6]. At least 2 states and the Federal District. [7]. Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698. [8]. See R. Wintemute, "Sexual Orientation and the Charter", (2004) 49 McGill Law Journal 1143; Civil Marriage Act, Statutes of Canada 2005, chapter 33. [9]. Fourie v. Minister of Home Affairs (30 Nov. 2004), Case No. 232/2003. [10]. Minister of Home Affairs v. Fourie; Lesbian & Gay Equality Project (Cases CCT60/04, CCT10/05). [11]. The Californian Court’s decision allowed same-sex couples to marry in California from 16 June 2008 until 4 November 2008, when 52% of voters in a referendum supported an amendment to the Californian Constitution (Proposition 8). Proposition 8 converted the rule denying access to legal marriage to same-sex couples from a sub-constitutional rule (adopted after the 2000 referendum on Proposition 22 and struck down by the Court in 2008) to a constitutional rule that could only be repealed after a second referendum: Article I, Section 7.5: “Only marriage between a man and a woman is valid or recognized in California.” The Court upheld Proposition 8 in Strauss v. Horton (26 May 2009), but maintained the validity of the legal marriages of same-sex couples who married before 4 November 2008. The Court’s decision was reinstated, and Proposition 8 struck down, by the procedural effect of Hollingsworth v. Perry, 133 S.Ct. 2652 (26 June 2013). [12]. See http://www.stf.jus.br/portal/cms/verNoticiaDetalhe.asp?idConteudo=178931 (last accessed June 2015) [13]. Sentencia C-577/11, http://www.corteconstitucional.gov.co/relatoria/2011/C-577-11.htm (last accessed June 2015), pp. 193-194. [14]. Amparos en Revisión 457/2012, 567/2012, 581/2012, Primera Sala de la Suprema Corte de Justicia. [15]. See Acórdão 359/09 (9 July 2009), http://w3.tribunalconstitucional.pt/acordaos/acordaos09/301-400/35909.htm (last accessed June 2015) (Declaração de Voto: Judges Gil Galvão and Maria João Antunes). [16]. See http://www.sexualorientationlaw.eu/documents/austria.htm. (no longer accessible) [17]. Recommendation 1474 (2000), para. 11(iii)(i). See also Resolution 1547 (2007), para. 34.14. [18]. “Resolution on equal rights for homosexuals ... in the EC” (8 Feb. 1994), OJ C61/40 at 42, para. 14. [19]. Staff Regulations of [EC] officials ..., Article 1d(1); Annex VII, Article 1(2)(c); Annex VIII, Article. 17, as amended by Council Regulation 723/2004/EC (22 March 2004), OJ L124/1. Cf. Decision No. 2005/684/EC of the European Parliament, Art. 17(9), (28 Sept. 2005), OJ L262/6 (“[p]artners from relationships recognised in the Member States shall be treated as equivalent to spouses”). [20]. Resolution CM/Res(2008)22, 19 Nov. 2008. [21]. See Irizarry v. Board of Education of City of Chicago, 251 F.3d 604 (7th Cir. 2001). [22]. The Court of Justice of the European Union effectively granted such an exemption in K.B., Case C-117/01 (7 Jan. 2004), which implicitly entitled Ms. K.B. and Mr. R. (her transsexual male partner) to an exemption from the marriage requirement until U.K. legislation was amended. If she had died on 8 January 2004 (the day after the judgment), he would have been entitled to a survivor’s pension even though he was not married to her (the U.K. had yet to implement Goodwin). Cf. Maruko, Case C-267/06 (1 April 2008) (Council Directive 2000/78/EC requires equal survivor's pensions for same-sex registered partners if national law places them “in a situation comparable to that of [different-sex] spouses”). [23]. “Homophobia and Discrimination on Grounds of Sexual Orientation in the EU Member States: Part 1 – Legal Analysis”, http://fra.europa.eu/en/publication/2010/homophobia-and-discrimination-grounds-sexual-orientation-eu-member-states-part-i. (last accessed June 2015) [24]. published on 17 May 2012

FIFTH SECTION CASE OF GONCHAROV v. UKRAINE (Application no. 7867/06) JUDGMENT STRASBOURG 10 December 2009 FINAL 10/05/2010 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 Goncharov v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President,Renate Jaeger,Karel Jungwiert,Rait Maruste,Isabelle Berro-Lefèvre,Zdravka Kalaydjieva, judges,Mykhaylo Buromenskiy, ad hoc judge,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 17 November 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 7867/06) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Pavel Vasilyevich Goncharov (“the applicant”), on 4 February 2006. 2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev. 3. On 12 September 2006 the Court decided to give notice of the application to the Government. It also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3). THE FACTS 4. The applicant was born in 1953 and lives in Artemivsk. 5. On 16 April 1998 the applicant instituted proceedings in the Artemivsk Town Court against the company A., his former employer, and the State Pension Fund, seeking recalculation of his salary and pension and recovery of salary and pension arrears. 6. On 5 May 1999, further to the applicant's request, the court ordered an expert examination as regards the accuracy of the calculation of the applicant's salary and pension and suspended the proceedings awaiting the results of the examination. 7. On 18 November 1999 the court, further to the applicant's request, cancelled the examination and resumed the proceedings. 8. During the period from 18 November 1999 to 8 April 2002 no court hearings were held in the case. 9. On 7 February 2003 the court rejected the applicant's claims as not based on the relevant law. 10. On 6 March 2003 the applicant appealed. 11. On 13 March 2003 the first-instance court allowed the applicant until 25 March 2003 to rectify shortcomings in his appeal. 12. On 21 March 2003 the applicant submitted his rectified appeal. 13. On 12 June 2003 the Donetsk Regional Court of Appeal upheld the judgment of 7 February 2003. 14. On 27 August 2003 the applicant appealed in cassation. 15. By a ruling of 2 September 2003 the first-instance court returned the appeal in cassation to the applicant as lodged out of time. 16. On 11 September 2003 the applicant appealed against that ruling. 17. Further to the court's instructions he rectified shortcomings in that appeal and resubmitted it on 18 September 2003. 18. On 30 October 2003 the Donetsk Regional Court of Appeal quashed the ruling of 2 September 2003. 19. On 13 November 2003 the first-instance court granted the applicant extension of the time-limit for lodging his appeal in cassation. 20. On 9 September 2005 the Supreme Court rejected the applicant's appeal in cassation as unsubstantiated. 21. Of twenty court hearings six were adjourned at the respondent's request or due to its representative's failure to appear, eight following the applicant's requests and due to the introduction of additional claims. THE LAW I. COMPLAINT ABOUT THE LENGTH OF THE PROCEEDINGS 22. Relying on Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 the applicant complained about the length of the proceedings. The Court, which is master of the characterisation to be given in law to the facts of the case, considers that the applicant's complaint falls to be examined under Article 6 § 1 of the Convention, which reads, in so far as relevant, as follows: Article 6 § 1 “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” A. Admissibility 23. 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 24. The Government submitted that the case was complex and there were no substantial delays attributable to the domestic authorities, while the applicant contributed to the protracted length of the proceedings by requesting adjournments of the hearings and lodging his appeals out of time. 25. The applicant disagreed. 26. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 27. Turning to the circumstances of the present case, the Court notes that the period to be taken into consideration began on 16 April 1998 and ended on 9 September 2005. It thus lasted for about seven years and five months before the courts at three levels of jurisdiction. 28. The Court notes that the applicant's case was of no particular factual or legal complexity and the Government did not put forward any explanation for the delays of two years and seven months and two years during the periods from 18 November 1999 to 8 April 2002 and from 13 November 2003 to 3 September 2005. 29. Although the applicant might have caused some protraction of the proceedings, the Court is of the view that the primary responsibility for the delays in the proceedings rests with the courts. The Court considers that the length of the proceedings was excessive and there has accordingly been a breach of the “reasonable time” requirement of Article 6 § 1. II. OTHER COMPLAINTS 30. The applicant complained under Articles 6 § 1 and 13 of the Convention about the outcome of the proceedings and that they were unfair. He also complained of a violation of Article 1 of Protocol No. 1 on account of the outcome of the proceedings. He also complained that he had been discriminated against on account of the outcome of the proceedings. 31. In the light of the materials in its possession, the Court finds that the applicant's complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. 32. It follows that this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 33. 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 34. The applicant claimed 304,862.46 Ukrainian hryvnias (UAH)[1] in respect of pecuniary damage and UAH 50,000[2] for non-pecuniary damage. 35. The Government contested these claims. 36. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects that claim. On the other hand, making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 1,200 for non-pecuniary damage. B. Costs and expenses 37. The applicant also claimed UAH 1,000[3] for costs and expenses without any further specification. 38. The Government contested the claim. 39. 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 information in its possession and the above criteria, the Court rejects the claim for costs and expenses. C. Default interest 40. 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 1. Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. 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 1,200 (one thousand and two hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into national currency 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 10 December 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident [1]. About 41,687.2 euros (EUR). [2]. About EUR 6,837.05. [3]. About EUR 136.

FIFTH SECTION CASE OF SEMENOVYCH v. UKRAINE (Application no. 9480/06) JUDGMENT STRASBOURG 30 July 2009 FINAL 30/10/2009 This judgment may be subject to editorial revision. In the case of Semenovych v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President,Karel Jungwiert,Rait Maruste,Mark Villiger,Isabelle Berro-Lefèvre,Zdravka Kalaydjieva, judges,Stanislav Shevchuk, ad hoc judge,and Stephen Phillips, Deputy Section Registrar, Having deliberated in private on 7 July 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 9480/06) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Sergiy Sergiyovych Semenovych (“the applicant”), on 27 February 2006. 2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev. 3. On 20 May 2008 the President of the Fifth 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 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1944 and lives in the town of Chervonograd, Ukraine. 5. On 17 September 2003 the Chervonograd Court awarded the applicant 34,041.65 Ukrainian hryvnas (about EUR 5,887) in salary arrears and other sums, to be paid by the State company Chervonogradske girnichomontazhne upravlinnya. 6. The judgment became final and enforcement proceedings were instituted. 7. On 25 June 2007 the Bailiffs’ Service returned the writ of enforcement to the applicant since there was a tax lien over the company’s property and it was therefore not possible to attach it. The applicant did not challenge this decision before the domestic courts; nor did he relodge the writ of execution with the Bailiffs’ Service. 8. The judgment in the applicant’s favour remains unenforced. II. RELEVANT DOMESTIC LAW 9. The relevant domestic law is summarised in the judgments of Romashov v. Ukraine, no. 67534/01, §§ 16-19, 27 July 2004, and Voytenko v. Ukraine, no. 18966/02, §§ 20-25, 29 June 2004. THE LAW I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 10. The applicant complained about the non-enforcement of the judgment given in his favour and the lack of an effective remedy in that respect. He invoked Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1, which provide, in so far as relevant, as follows: Article 6 § 1 “In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law...” A. Admissibility 11. The Government submitted that the applicant had failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention. In particular, they maintained that he had failed to complain to any domestic court about the Bailiffs’ Service’s allegedly inadequate attempts to enforce the judgment in his favour. They further alleged that the applicant had failed to re-submit the writ of execution. 12. The Court notes that similar objections have already been rejected in a number of judgments adopted by the Court (see Sokur v. Ukraine (dec.), no. 29439/02, 16 December 2003; Sychev v. Ukraine, no. 4773/02, §§ 42-46, 11 October 2005; and Kolosenko v. Ukraine, no. 40200/02, §§ 12-15, 26 April 2007). The Court considers that this objection must be rejected in the instant case for the same reasons. 13. The Court notes that the applicant’s complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 14. In their observations on the merits the Government advanced the arguments they have frequently put forward in cases like the present one (see, for example, the Romashov judgment, cited above, § 37). 15. The applicant disagreed. 16. The Court has frequently found violations of Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention in cases raising similar issues to those in the present case (see Romashov v. Ukraine, cited above, § 46, and Voytenko v. Ukraine, cited above, §§ 43, 48 and 55). 17. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case 18. There has, accordingly, been a violation of Articles 6 § 1 and 13 of the Convention and a violation of Article 1 of Protocol No. 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 19. 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 20. In respect of pecuniary damage, the applicant claimed payment of the debt still owed to him under the judgment that had been given in his favour. He further claimed EUR 20,000 in respect of non-pecuniary damage. 21. The Government noted that the applicant’s right to have the judgment given in his favour executed had never been contested. They contested the applicant’s claim in respect of non-pecuniary damage. 22. The Court notes that it is undisputed that the State still has an outstanding obligation to enforce the judgment given in the applicant’s favour. It further takes the view that the applicant must have sustained non-pecuniary damage as a result of the violation found. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 1,800 under this head. B. Costs and expenses 23. The applicant lodged no claim under this head, the Court therefore makes no award in this respect. C. Default interest 24. 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 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 4. Holds that there has been a violation of Article 13 of the Convention; 5. 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, the judgment debt still owed to the applicant for pecuniary damage, as well as EUR 1,800 (one thousand eight hundred euros) in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement; plus any tax that may be chargeable; (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. 6. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 30 July 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsPeer LorenzenDeputy RegistrarPresident

SECOND SECTION CASE OF SEYFETTİN GÜNEŞ v. TURKEY (Application no. 22182/10) JUDGMENT STRASBOURG 17 November 2015 FINAL 17/02/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Seyfettin Güneş v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Guido Raimondi, President,Işıl Karakaş,Nebojša Vučinić,Helen Keller,Paul Lemmens,Egidijus Kūris,Robert Spano, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 13 October 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 22182/10) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Seyfettin Güneş (“the applicant”), on 24 February 2010. 2. The applicant, who had been granted legal aid, was represented by Mr S. Ramanlı, a lawyer practising in Batman. The Turkish Government (“the Government”) were represented by their Agent. 3. On 10 September 2012 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1970 and is serving a sentence in Batman prison. A. Alleged ill-treatment of the applicant, the criminal proceedings against him and his criminal complaint against police officers 5. In April 2000 the applicant was taken into police custody on suspicion of being a member of Hizbullah, an illegal organisation. He claimed to have been arrested on 4 April 2000, whereas according to the arrest report he was taken into custody on 7 April 2000. His first medical examination upon his arrest was, however, carried out on 6 April 2000. 6. The examination was carried out by a doctor at the request of the police. According to the medical report issued in respect of the applicant, it was conducted prior to his detention in police custody. The report stated that there was old scar tissue measuring 3 cm on his upper right wrist. The doctor also noted that there were no signs of violence on the applicant’s body. 7. On 9 April 2000 a second medical report was drafted, according to which the scar tissue mentioned in the medical report of 6 April 2000 was 2.5 cm long. 8. On 10 April 2000 the applicant was questioned by the police without a lawyer being present. According to the document containing his statements to the police, he acknowledged being a member of Hizbullah. 9. On 11 April 2000, at the end of his detention in police custody, the applicant was once again examined by a doctor. According to the report, there were no signs of violence on his body. 10. On the same date the applicant was brought before the public prosecutor and, subsequently, a judge, who questioned him and recorded his statements. On both occasions he denied the veracity of his statements to the police, claiming that he had signed them under duress. The judge remanded him in custody. 11. On 3 May 2000 the public prosecutor at the Diyarbakır State Security Court filed an indictment against the applicant and a number of other individuals. They were charged with being members of Hizbullah under Article 168 of the former Criminal Code. 12. On 27 June 2000 the Diyarbakır State Security Court held the first hearing on the merits of the case, at which the applicant gave evidence. He maintained, inter alia, that while in police custody, he had been beaten and given electric shocks to his genitals. He also told the court that he had been taken into police custody on 6 April 2000. 13. On 2 July 2001 the applicant once again maintained before the first‑instance court that his statements to the police had been obtained under torture. 14. In 2004 State Security Courts were abolished. The case against the applicant was transferred to the Diyarbakır Assize Court. 15. On 11 October 2004 the applicant was released pending trial. 16. On 25 October 2005 the case against the applicant and his co‑accused was joined with another case brought against a number of other people charged with being members of Hizbullah. 17. Between 11 October 2004 and 13 February 2008 the applicant did not attend court, although during this period his lawyers attended some hearings on his behalf. 18. On 13 February 2008, during the final hearing in the case, the applicant’s lawyer contended that the court should not base its judgment on the applicant’s statements to the police, as they had been made under duress. 19. On the same day the Diyarbakır Assize Court convicted the applicant of being a member of an illegal organisation and sentenced him to ten years’ imprisonment. The court noted that he had alleged that he had been tortured in police custody. It nevertheless based its judgment on the statements the applicant and a number of the other accused had made to the police, and documents found in the applicant’s house at the time of his arrest. 20. On 24 June 2009 the applicant’s lawyer lodged an appeal against the judgment of 13 February 2008, which did not refer to any of the applicant’s allegations of ill-treatment while in police custody. 21. On 30 September 2009 the Court of Cassation upheld the judgment. 22. On 1 December 2009 the applicant began serving his sentence. 23. On 25 October 2010 he filed a petition with the Batman public prosecutor’s office, requesting that an investigation be initiated into his ill‑treatment while in police custody in April 2000. 24. On 1 December 2010 the applicant gave statements to the Batman public prosecutor. He maintained that he had not been taken into police custody on 6 April but on 4 April 2000, and that he had been subjected to torture while detained. He requested that both the police officers on duty at the relevant time and the doctors who had issued the medical reports be prosecuted. 25. On an unspecified date the Batman public prosecutor requested the Diyarbakır branch of the Forensic Medical Institute to examine the applicant and provide an opinion as to whether his allegations of torture were well‑founded. 26. On 2 December 2010 a doctor from the Diyarbakır branch of the Forensic Medical Institute conducted the examination. The applicant told the medical expert that he had been hung by his wrists in police custody, and that they had been bruised at the material time. The doctor drafted a detailed report comparing the results of the three medical reports issued in April 2000 and containing his opinion. He considered that the term “old scar tissue” should not have been used in the reports issued in 2000, since such scars did not fade for a long time. In this connection, the doctor noted that he could not see any such scar when he examined the applicant in 2010. In sum, the doctor considered that had the scar observed during the medical examinations in 2000 been an “old scar”, it would still have been observed during the examination of 2010. He also noted that the reports issued in April 2000 had not described the type, colour or any other features of the scar. Lastly, he recommended that the applicant undergo an examination at the Forensic Medical Institute in Istanbul with a view to establishing whether he had been suffering any psychiatric problems as a result of the alleged torture. 27. On 28 November 2011 the Batman public prosecutor decided not to prosecute the officers on duty at the Batman police station at the relevant time or the three doctors who had issued the medical reports on 6, 9 and 11 April 2000. The public prosecutor noted that the statutory time-limit provided in Article 102 of the former Criminal Code (which had been in force in 2000 for prosecutions for torture) was ten years, and that the applicant had lodged his complaint after this time-limit had expired. It was accordingly concluded that the investigation was time‑barred. 28. On 19 December 2011 the applicant objected to that decision. 29. On 23 January 2012 the Midyat Assize Court dismissed his objection and the decision was upheld. B. Alleged lack of medical assistance in prison 30. On 8 January 2001, while the applicant was in custody, his hip was broken while he was playing volleyball. He had surgery twice. 31. In medical reports dated 16 April, 24 May and 26 September 2002, doctors from the Dicle University Faculty of Medicine concluded that for him to make a full recovery, he would need to have a hip replacement. 32. On 23 December 2002 and 13 January 2003 the applicant filed petitions with the Batman public prosecutor, requesting immediate surgery and complaining of a delay in treatment. 33. On 6 February 2003 the applicant’s father submitted another petition to the Ministry of Justice requesting immediate intervention. 34. A prosthetic hip was implanted after four consecutive operations carried out on unspecified dates in 2003 or 2004. On 22 October 2004 the applicant was declared unfit for military service because of the prosthesis. II. RELEVANT DOMESTIC LAW 35. The relevant domestic law and practice in force at the material time can be found in the following judgments: Batı and Others v. Turkey, (nos. 33097/06 and 57834/00 §§ 95-99, ECHR 2004-IV (extracts)); Salduz v. Turkey [GC], (no. 36391/02, §§ 27-31, 27 November 2008); and Turgut and Others v. Turkey ((dec.), no. 4860/09, §§ 19‑26 26 March 2013). THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE APPLICANT’S ALLEGED ILL‑TREATMENT IN POLICE CUSTODY AND THE ALLEGED INEFFECTIVENESS OF THE INVESTIGATION 36. In his application form of 24 February 2010 and further submissions dated 1 November 2010, 29 December 2010 and 19 July 2012, the applicant complained under Article 3 of the Convention that he had been subjected to various forms of ill‑treatment amounting to torture while in police custody in April 2000. He also complained that his allegations of ill-treatment had not been investigated effectively. 37. The Government claimed that the applicant had lodged his application outside the six-month time-limit. They maintained in this connection that he had been released from prison in 2004 and should therefore have lodged his petition with the Batman public prosecutor’s office and requested an investigation into his allegations long before 2010. They also noted that he had raised his allegations of torture before a State Security Court. Given that the public prosecutor did not take any action in the face of those allegations, the domestic remedies at the relevant time had clearly been ineffective. The applicant should therefore have been aware of their ineffectiveness earlier. 38. The applicant submitted in reply that he had lodged his application within six months of the Court of Cassation’s decision. 39. The Court reiterates at the outset that in cases concerning an investigation into ill-treatment, applicants are expected to take steps to keep track of its progress, or lack thereof, and to lodge their applications with due expedition once they are, or should have become, aware of the lack of any effective criminal investigation (see Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, § 263, ECHR 2014 (extracts)). 40. It follows that the obligation of diligence incumbent on applicants contains two distinct but closely linked aspects. On the one hand, they must contact the domestic authorities promptly concerning progress in the investigation – which implies the need to apply to them with diligence, since any delay risks compromising the effectiveness of the investigation – and, on the other, they must lodge their application promptly with the Court as soon as they become aware or should have become aware that the investigation is not effective (ibid., § 264 and the cases cited therein). 41. In the present case, the Court must examine whether the applicant fulfilled both aspects of his duty of diligence in the light of the principles recapitulated in Mocanu and Others (ibid., §§ 258-269). 42. As to the first aspect incumbent on the applicant – that is, the duty to raise his allegations of ill-treatment promptly before the national authorities and to keep track of the outcome of his complaint – the Court observes that on 11 April 2000 when he was brought before the public prosecutor and judge who questioned him and recorded his statements, he denied the veracity of his statements to the police, claiming that he had signed them under duress (see paragraph 10 above). The applicant further raised his allegation of ill‑treatment on 27 June 2000 during the first hearing of the case against him (see paragraph 12 above). The national authorities however failed to initiate an investigation into the applicant’s claim that he had been coerced by the police into signing his statements and his allegations of ill‑treatment despite the fact that under Article 153 of the former Code of Criminal Procedure, in force at the material time, a public prosecutor who had been informed of a situation that gave rise to a suspicion that an offence had been committed was obliged to investigate the facts by conducting the inquiries necessary to identify the perpetrators (see İlhan v. Turkey [GC], no. 22277/93, § 36, ECHR 2000‑VII; and Mocanu and Others, cited above, § 265). 43. The Court however observes that apart from his aforementioned statements of 11 April and 27 June 2000, the applicant (and his lawyer) raised the allegations of ill-treatment only twice, on 2 July 2001 and 13 February 2008 within the context of the criminal proceedings against him and with a view to challenging the admissibility of his statements to the police in the case file and their use as evidence (see paragraphs 13 and 18 above). While the applicant may be considered to have been in a vulnerable position as a prisoner and his inactivity may be deemed understandable up until 11 October 2004, the date on which he was released pending trial, from that date onwards he could and should have contacted the national authorities with a view to seeking information about the outcome of his complaints and lodged a formal complaint with the prosecuting authorities had he learned that there had been no investigation. What is more, in his appeal filed with the Court of Cassation on 24 June 2009, the applicant did not pursue his allegations of ill-treatment. The Court therefore finds that the applicant failed to comply with the obligation of diligence to take steps to inform himself whether an investigation had been initiated into his allegations of ill-treatment and, if so, to keep track of it. 44. With regard to the second aspect incumbent on applicant – that is, the duty to lodge an application with the Court as soon as he realised, or ought to have realised, that there had been no effective investigation into his allegations of ill-treatment – the Court notes that despite the applicant’s statements on 27 June 2000, 2 July 2001 and 13 February 2008 before the Diyarbakır State Security Court and Diyarbakır Assize Court, the national authorities failed to initiate an investigation into his allegations. In the Court’s view, the judicial authorities’ failure to fulfil their obligation to investigate must have become apparent to the applicant by 13 February 2008 at the latest, the date the Diyarbakır Assize Court rendered its judgment in the case against him (see Baytap v. Turkey (dec.), no. 17579/05, 29 April 2010). 45. As to the investigation opened in 2010 in the wake of the applicant’s complaint of 25 October 2010, the Court observes that despite the fact that the public prosecutor took two investigative steps, namely taking the applicant’s statements and requesting the Forensic Medicine Institute to prepare a medical opinion on his allegations of ill-treatment, at the end of the investigation he concluded that the applicant had lodged his petition after the statutory time-limit for prosecutions for torture had expired (see paragraph 27 above). The Court further observes that at that stage the applicant had not based his petition on any new information or new evidence. Thus, in the Court’s view, he should have known that his petition to the public prosecutor’s office would not give rise to an effective investigation and that the one initiated was doomed to failure. The Court considers as a result that the petition the applicant lodged on 25 October 2010 did not warrant the interruption of the initial six-month period or revive the national authorities’ procedural obligation to investigate his allegations of ill-treatment (see Manukyan v. Georgia (dec.), no. 53073/07, 9 October 2012; and Akhvlediani and Others v. Georgia (dec.), nos. 22026/10, 22043/10, 22078/10, 22097/10, 22128/10, 27480/10, 27534/10, 27551/10, 27572/10, 27583/10, 9 April 2013; compare with Brecknell v. the United Kingdom, no. 32457/04, § 71, 27 November 2007; and Gasyak and Others v. Turkey, no. 27872/03, § 63, 13 October 2009). 46. In view of the above, the Court considers that the unexplained inactivity of the applicant and indifference on his part towards the lack of an investigation for over ten years rendered his complaint of 25 October 2010 without substance, and also fell foul of the purposes of the six-month rule under Article 35 § 1 of the Convention (compare with Aysu v. Turkey no. 44021/07, §§ 28-29, 13 March 2012, where the Court dismissed the Government’s objection regarding the six-month time-limit, noting that the applicant’s allegations of ill-treatment had been examined on their merits by the prosecuting authorities although the applicant had waited for more than seven years before lodging a separate complaint). The Court therefore concludes that the applicant’s complaints alleging ill‑treatment and lack of an effective investigation in that regard are inadmissible for failure to comply with the six-month rule. 47. It follows that this part of the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. II. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION 48. The applicant complained under Article 6 §§ 1 and 3 (c) of the Convention that his statements obtained by the police under duress and without legal assistance had been used during the proceedings against him. He also submitted under Article 6 § 1 of the Convention that the length of those proceedings had exceeded the reasonable time requirement. 49. Article 6 of the Convention, in so far relevant, reads as follows: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal... 3. Everyone charged with a criminal offence has the following minimum rights: ... (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ...” A. Use of the applicant’s statements to the police allegedly obtained under duress and without legal assistance 1. Admissibility 50. The Court notes that this part of the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention, and that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits 51. The applicant complained that he had been denied legal assistance during his detention in police custody, and that in convicting him, the first‑instance court had used statements obtained by the police as a result of ill‑treatment. 52. The Government maintained that the applicant’s statements to the police had not been decisive evidence against him, as the Diyarbakır Assize Court had also relied on other evidence. Referring to the Court’s judgment in the case of Salduz, cited above, they submitted that they were aware of the Court’s case-law in so far as it relates to the applicant’s complaint concerning the lack of legal assistance in police custody. 53. The Court observes at the outset that, on the basis of the case file, it cannot be concluded that the applicant was subjected to ill-treatment or otherwise coerced into making statements in police custody (see Taşçıgil v. Turkey, no. 16943/03, § 35, 3 March 2009; Mehmet Zeki Doğan v. Turkey, no. 38114/03, § 12, 6 October 2009; and Hayrettin Demir v. Turkey, no. 2091/07, § 48, 24 July 2012; and compare with Örs and Others v. Turkey, no. 46213/99, §§ 53-61, 20 June 2006; and Özcan Çolak v. Turkey, no. 30235/03, §§ 41-50, 6 October 2009). The Court therefore considers that the examination of this part of the application should be confined to the complaint concerning the use by the trial court of statements made to the police without a lawyer being present, which should be examined under Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1. 54. The Court notes that it is not in dispute between the parties that the applicant was denied legal assistance during the period in custody. It notes that at the time he was detained, namely April 2000, the restriction imposed on his right of access to a lawyer was systemic and applied to anyone held in police custody in connection with an offence falling under the jurisdiction of the State Security Courts (see Salduz, cited above, §§ 56-63). The Court has examined the present case and finds no particular circumstances which would require it to depart from its findings in the aforementioned Salduz judgment. 55. There has therefore been a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 in the present case. B. Length of the criminal proceedings against the applicant 56. The applicant complained that the criminal proceedings against him had been excessively lengthy. 57. The Government maintained that the applicant had failed to exhaust the remedies available to him under domestic law, as he had not applied to the Compensation Commission set up by Law no. 6384 to deal with applications concerning the length of proceedings. 58. The Court observes that, as pointed out by the Government, a new domestic remedy has been established in Turkey following the application of the pilot judgment procedure in the case of Ümmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012). Subsequently, in its decision in Turgut and Others v. Turkey (no. 4860/09, 26 March 2013), the Court declared a new application inadmissible on the ground that the applicants had failed to exhaust domestic remedies once the new domestic remedy had come into being. In so doing, the Court considered in particular that this new remedy was a priori accessible and capable of offering a reasonable prospect of redress for complaints concerning the length of proceedings. 59. The Court notes that in its decision in Ümmühan Kaplan (cited above, § 77) it stressed that it could examine applications of this type which have already been communicated to the Government. 60. However, taking account of the Government’s preliminary objection with regard to the applicant’s failure to make use of the new domestic remedy established by Law no. 6384, the Court reiterates its conclusion in Turgut and Others (cited above). It concludes, therefore, that the complaint concerning the length of the criminal proceedings must be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 61. The applicant complained under Article 3 of the Convention that there had been a lack of medical assistance in prison. He also submitted under Article 5 of the Convention that his detention pending trial had been excessively lengthy. 62. The Court observes that the applicant’s detention on remand ended when he was released from prison on 11 October 2004, whereas he lodged his application with the Court on 24 February 2010. It follows that, even assuming that his allegations regarding the absence of medical assistance were well-founded and that he had exhausted all domestic remedies available to him in relation to his complaints, he failed to comply with the six-month time-limit. 63. These complaints were therefore lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 64. 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.” 65. The applicant claimed 100,000 euros (EUR) in respect of the non‑pecuniary damage he had allegedly suffered. He claimed a further EUR 100,000 in respect of pecuniary damage. 66. The Government contested those claims, submitting that the amounts requested were unsubstantiated and excessive. 67. The Court observes that the applicant did not substantiate his claim for pecuniary damage. It therefore rejects that claim. It finds, however, that he must have suffered pain and distress which cannot be compensated for solely by the finding of a violation. Having regard to the nature of the violation found, the Court finds it appropriate to award him EUR 1,500 in respect of non-pecuniary damage. 68. The Court further considers that the most appropriate form of redress would be a retrial of the applicant in accordance with the requirements of Article 6 of the Convention, should he so request (see Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003). 69. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaints under Article 6 §§ 1 and 3 (c) of the Convention admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1, on account of the lack of legal assistance afforded to the applicant while in police custody; 3. 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 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 17 November 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithGuido RaimondiRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Lemmens and Spano is annexed to this judgment. G.R.A.S.H.N. JOINT CONCURRING OPINION OF JUDGES LEMMENS AND SPANO We agree with the Court’s finding of a violation of Article 6 § 3 (c) of the Convention, in conjunction with Article 6 § 1, on account of the lack of legal assistance afforded to the applicant while in police custody. However, in the light of the reasoning provided in Judge Spano’s dissenting opinion in the case of Aras v. Turkey, no. 15065/07, 18 November 2014, in which he was joined by Judge Lemmens, and also in our joint concurring opinion in the case of Galip Doğru v. Turkey, no. 36001/06, 28 April 2015, we consider that paragraph 54 of the judgment should have explicitly mentioned that the applicant’s incriminating statements, given during police questioning in the absence of legal assistance, were directly relied upon by the Assize Court when the applicant was convicted (see paragraph 19 of the judgment).

FIRST SECTION CASE OF P.B. AND J.S. v. AUSTRIA (Application no. 18984/02) JUDGMENT STRASBOURG 22 July 2010 FINAL 22/10/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of P.B. and J.S. v. Austria, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Anatoly Kovler,Elisabeth Steiner,Khanlar Hajiyev,Dean Spielmann,Giorgio Malinverni, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 1 July 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 18984/02) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by one Hungarian national, Mr P.B. and one Austrian national, Mr J.S. (“the applicants”), on 24 April 2002. The President of the Chamber acceded to the applicants' request not to have their names disclosed (Rule 47 § 3 of the Rules of Court). 2. The applicants were represented by Mr J. Unterweger, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry of Foreign Affairs. 3. By a decision of 20 March 2008 the Court declared the application admissible. 4. The Government of Hungary, having been informed by the Registrar of their right to intervene (Article 36 § 1 of the Convention and Rule 44 § 1), indicated that they did not intend to do so. 5. The applicants and the Government each filed observations on the merits (Rule 59 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicants were born in 1963 and 1959 respectively and live in Vienna. 7. The applicants live together in a homosexual relationship. The second applicant is a civil servant and, for the purpose of accident and sickness insurance cover, he is insured with the Civil Servants Insurance Corporation (“the CSIC”) (Versicherungsanstalt Öffentlicher Bediensteter). On 1 July 1997 the first applicant asked the CSIC to recognise him as the dependent (Angehöriger) and to extend the second applicant's insurance cover to include him. He submitted that section 56(6) of the Civil Servants Sickness and Accident Insurance Act (“the CSSAIA”) (Beamten-Kranken- und Unfallversicherungsgesetz) only referred to persons of the opposite sex living with the principally insured person and running the common household without receiving any payment. But, because there were no good reasons for excluding persons living in a homosexual relationship from the privilege of extended insurance cover, section 56(6) should be interpreted as also including homosexual partners. 8. On 2 September 1997 the CSIC dismissed the request, holding that, because the first applicant was of the same sex as the second applicant, his request had to be dismissed. This decision was served on the second applicant who, on 1 October 1997, filed an objection. 9. On 21 November 1997 the Mayor of Vienna, acting as the Regional Governor, quashed the decision on procedural grounds. He held that the CSIC should have served its decision on the first applicant. 10. On 13 January 1998 the CSIC dismissed a request by the first applicant and this time served the decision on him. The first applicant filed objections. 11. The mayor of Vienna confirmed the CSIC's decision on 19 March 1998. Thereupon the first applicant lodged a complaint with the Constitutional Court in which he argued that the exclusion, under section 56(6) of the CSSAIA, of homosexual couples from the extension of insurance cover was in breach of Article 14, read in conjunction with Article 8, of the Convention and was therefore unconstitutional. 12. On 15 June 1998 the Constitutional Court declined to deal with the first applicant's complaint. Referring to its previous case-law, the Constitutional Court found that, in the issue at hand, the legislator had had a very wide margin in which to reach a decision and the decision taken had been within that margin. 13. On an unspecified date the Constitutional Court granted a request by the first applicant for the case to be transferred to the Administrative Court. On 7 September 1998 the first applicant supplemented his complaint to the Administrative Court. 14. On 4 October 2001 the Administrative Court dismissed the first applicant's complaint. It found that the authorities had correctly concluded that section 56(6) of the CSSAIA only applied to heterosexual partnerships. There was no issue under Article 14, read in conjunction with Article 8, of the Convention, because Article 8 did not guarantee specific social rights, and the case at issue did not therefore fall within the ambit of that provision. The exclusion of homosexual partnerships from the scope of section 56(6) of the CSSAIA also complied with the principle of equality because that difference in treatment was justified. While it was true that, where persons of different sex living together in a household in which one of them was running that household while not being gainfully employed, it was, as a rule, safe to conclude that they were cohabiting in a partnership, that was not the case if two persons of the same sex were living together in a household. In the absence of any possibility to register a homosexual partnership, it would have been necessary to undertake delicate enquiries into the most intimate sphere of the person concerned. That difference in the factual situation justified different treatment in law. 15. In proceedings instituted by the Constitutional Court to examine the constitutionality of two similar provisions to section 56(6) of the CSSAIA relating to extending insurance cover to relatives, on 10 October 2005 the Constitutional Court decided to quash section 123(8b) of the General Social Security Act (“the GSSA”) (Allgemeines Sozial-versicherungsgesetz) and section 83(3) of the Social Security Act for Trade and Commerce (“the TCSSA”) (Gewerbliches Sozialversicherungsgesetz). The Constitutional Court explicitly referred to the judgment of the European Court of Human Rights in the case of Karner v. Austria (see Karner v. Austria, no. 40016/98, 24 July 2003) and held that the two provisions in which the extension of insurance cover to unrelated persons living with the insured were discriminatory because they were restricted to persons of the opposite sex. 16. On 1 August 2006 the Social Rights Amendment Act (“the SRAA”) (Sozialrechts-Änderungsgesetz) entered into force amending in particular the GSSA, the TCSSA and also section 56 of the CSSAIA. A second amendment to section 56 of the CSSAIA entered into force on 1 July 2007. II. RELEVANT DOMESTIC LAW 17. Before 1 August 2006 section 56(6) of the Civil Servants Sickness and Accident Insurance Act (Beamten-, Kranken- und Unfallversicherungs-gesetz), in so far as relevant, provided as follows: “(1) Relatives are entitled to benefits, if they have their ordinary residence in Austria and are neither health insured under the provisions of this Act nor any other provision of law ... ... (6) A person belonging to the group of parents, ... step-parents and foster parents, children, ... stepchildren and foster children, grandchildren or brothers and sisters of the insured or a person of the opposite sex who is not related to him or her who has been living with him or her in the same household for at least ten months and since then has been doing the domestic work for the insured without payment, unless there is a spouse living in the same household who is able to work, shall be regarded as a member of the household. Only one person can be a member in this sense.” 18. After the amendment to the Civil Servants Sickness and Accident Insurance Act on 1 August 2006, section 56(6) remained the same, but a new paragraph (6a) was introduced. It read as follows; “A person who is not a relative of the insured and who has been living with him or her in the same household for at least ten month and since then is doing the domestic work for him or her without payment, unless there is a spouse living in the same household who is able to work, shall be regarded as a member of the common household, if (a) he or she is bringing up one or more children living in the same household ... or did so for at least four years; (b) he or she is entitled to benefits for the payment of nursing care (at least level 4) pursuant to section 5 of the Federal Nursing Care Benefits Act or pursuant to the provisions of the Regional Nursing Care Benefits Act; (c) he or she is doing nursing work for the insured who is entitled to benefits (at least level 4) for the payment of nursing care pursuant to the Federal Nursing Care Benefits Act or pursuant to the provisions of the Regional Nursing Care Benefits Act.” 19. On 1 July 2007 a further amendment to the Civil Servants Sickness and Accident Insurance Act entered into force. Section 56(6) no longer applied to non-related persons, but only to relatives of the insured. The newly introduced paragraph 6a was only slightly modified. These provisions, in so far as relevant, read as follows: “(6) A person belonging to the group of parents, ... step-parents and foster parents, children, ... stepchildren and foster children, grandchildren or brothers and sisters of the insured who has been living with him or her in the same household for at least ten months and since then has been doing the domestic work for the insured without payment, unless there is a spouse living in the same household who is able to work, shall be regarded as a member of the household. He or she shall also be considered a member if he or she is no longer able to do the domestic work. Only one person can be a member in this sense. (6a) A person who is not a relative of the insured and who has been living with him or her in the same household for at least ten month and since then has been doing the domestic work for him or her without payment, unless there is a spouse living in the same household who is able to work, shall be regarded as a member of the common household, if (a) he or she is bringing up one or more children living in the same household ... or did so for at least four years, or (b) he or she is doing nursing work for the insured who is entitled to public benefits at least level 4 pursuant to the Federal Nursing Care Benefits Act or pursuant to the provisions of the Regional Nursing Care Benefits Act.” 20. The last amendment to the Civil Servants Sickness and Accident Insurance Act which entered into force on 1 July 2007 was accompanied by a transitory provision. Section 217(3) and (4) read as follows: “(3) Persons of the opposite sex and not related to the insured, who, pursuant to section 56(6) as in force on 30 June 2007, had been entitled to benefits as relatives and who on that date had already reached twenty-seven years of age remain entitled to benefits as relatives until the relevant circumstances change. (4) Persons of the opposite sex and not related to the insured, who, pursuant to section 56(6) as in force on 30 June 2007, had been entitled to benefits as relatives and who on that date had not yet reached twenty-seven years of age remain entitled to benefits as relatives until the relevant circumstances change, but at most until 31 December 2010.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 14 READ IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION 21. The applicants claimed to be victims of discrimination on the ground of sexual orientation in that the Administrative Court in its decision of 4 October 2001 upheld that the insurance cover of the second applicant only extended to heterosexual partners within the meaning of section 56(6) CSSAIA. They relied on Article 14 of the Convention in conjunction with Article 8. 22. Article 14 reads 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.” Article 8, in so far as relevant, provides: “1. Everyone has the right to respect for his private and family life [and] his home ... 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 ... for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Submissions by the parties 23. The applicants submitted that they had been victims of discrimination because of the refusal of the Austrian authorities to extend the second applicant's health and accident insurance to the first applicant on grounds of their sexual orientation. This had also been acknowledged in substance by the Constitutional Court in its judgment of 10 October 2005. They maintained that, despite the Constitutional Court's judgment of 10 October 2005 and the subsequent amendment to the CSSAIA, they were still victims because same-sex partners were still excluded from joint insurance if they did not raise children in the common household. Moreover, the transitional provision guaranteed the joint insurance to those (male/female) couples who were entitled to it before the amendment, irrespective of whether they raised children or not. Given that this was not the case for same-sex partners they were continuously victims of discriminatory legislation. 24. The Government did not comment on the merits of the application. They noted that after the Constitutional Court had, on 10 October 2005, repealed the two parallel provisions of the General Social Security Act (GSSA) and the Social Security Act for Trade and Commerce (TCSSA) and replaced them with section 56(6) of the CSSAIA, a general reform reformulating the legal provisions on the extension of insurances to cohabitees had been enacted. On 1 August 2006 and 1 July 2007 amendments to the CSSAIA entered into force, which regulated the affiliation of a partner to a social security scheme in a non-discriminatory way. B. The Court's assessment 1. Applicability of Article 14 25. The Court points out at the outset that the provision of Article 8 of the Convention does not guarantee as such a right to have the benefits deriving from a specific social security insurance scheme extend to a co‑habiting partner (see Stec and Others v. the United Kingdom [GC], no. 65731/01, § 53, ECHR 2006‑VI). 26. It is undisputed in the present case that the relationship of a same-sex couple like the applicants' falls within the notion of “private life” within the meaning of Article 8. However, in the light of the parties' comments the Court finds it appropriate to address the issue whether their relationship also constitutes “family life”. 27. The Courts reiterates its established case-law in respect of different‑sex couples, namely that the notion of family under this provision is not confined to marriage-based relationships and may encompass other de facto “family” ties where the parties are living together out of wedlock. A child born out of such a relationship is ipso jure part of that “family” unit from the moment and by the very fact of his birth (see Elsholz v. Germany [GC], no. 25735/94, § 43, ECHR 2000-VIII; Keegan v. Ireland, 26 May 1994, § 44, Series A no. 290; and also Johnston and Others v. Ireland, 18 December 1986, § 56, Series A no. 112). 28. In contrast, the Court's case-law has only accepted that the emotional and sexual relationship of a same-sex couple constitutes “private life” but has not found that it constitutes “family life”, even where a long‑term relationship of cohabiting partners was at stake. In coming to that conclusion, the Court observed that despite the growing tendency in a number of European States towards the legal and judicial recognition of stable de facto partnerships between homosexuals, given the existence of little common ground between the Contracting States, this was an area in which they still enjoyed a wide margin of appreciation (see Mata Estevez v. Spain (dec.), no. 56501/00, ECHR 2001-VI, with further references). In the case of Karner (cited above, § 33), concerning the succession of a same‑sex couples' surviving partner to the deceased's tenancy rights, which fell under the notion of “home”, the Court explicitly left open the question whether the case also concerned the applicant's “private and family life”. 29. The Court notes that since 2001, when the decision in Mata Estevez was given, a rapid evolution of social attitudes towards same-sex couples has taken place in many member States. Since then a considerable number of member States have afforded legal recognition to same-sex couples (see above, paragraphs 27-30). Certain provisions of EU law also reflect a growing tendency to include same-sex couples in the notion of “family” (see paragraph 26 above). 30. In view of this evolution the Court considers it artificial to maintain the view that, in contrast to a different-sex couple, a same-sex couple cannot enjoy “family life” for the purposes of Article 8. Consequently the relationship of the applicants, a cohabiting same-sex couple living in a stable de facto partnership, falls within the notion of “family life”, just as the relationship of a different-sex couple in the same situation would. 31. With regard to Article 14, which was relied on in the present case, the Court reiterates that it only complements the other substantive provisions of the Convention and the Protocols thereto. It has no independent existence because it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions (see, among many other authorities, Sahin v. Germany [GC], no. 30943/96, § 85, ECHR 2003‑VIII). The application of Article 14 does not necessarily presuppose the violation of one of the substantive rights protected by the Convention. It is necessary but also sufficient for the facts of the case to fall “within the ambit” of one or more of the Articles of the Convention (see Petrovic v. Austria, 27 March 1998, § 22, Reports of Judgments and Decisions 1998‑II). 32. The prohibition of discrimination enshrined in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and the Protocols thereto require each State to guarantee. It also applies to those additional rights, falling within the general scope of any Convention Article, for which the State has voluntarily decided to provide. This principle is well entrenched in the Court's case-law (see E.B. v France [GC], no. 43546/02, § 48, ECHR 2008‑... with further references). 33. The present case concerns the possibility to extend accident and sickness insurance cover under a statutory insurance scheme to cohabiting partners, a possibility which the legal provisions impugned by the applicants recognise under certain conditions. Moreover, the possibility to extend insurance cover, in the Court's view, has to be qualified as a measure intended to improve the principally insured person's private and family situation. The Court therefore considers that the extension of insurance cover at issue falls within the ambit of Article 8. 34. Consequently, the State, which has gone beyond its obligations under Article 8 in creating such a right - a possibility open to it under Article 53 of the Convention - cannot, in the application of that right, take discriminatory measures within the meaning of Article 14 (see, mutatis mutandis, E.B. v. France, cited above, §49). 35. Because the applicants complain that they are victims of a difference in treatment which allegedly lacks objective and reasonable justification as required by Article 14 of the Convention, that provision, taken in conjunction with Article 8, is applicable. 2. Compliance with Article 14 read in conjunction with Article 8 36. The applicants submitted that they had been victims of discrimination because it had been impossible to have the cover of the second applicant's health and accident insurance extended to include the first applicant. This was because, under section 56(6) of the CSSAIA, as in force until 1 August 2006, such an extension was only open to cohabitees of the opposite sex and because this discriminatory situation did not effectively change after the entry into force of an amendment to the relevant provisions which imposed conditions they could not fulfil. 37. The Government did not comment on the situation in law until the entry into force of the modifications of the CSSAIA on 1 August 2006 and 1 July 2007 respectively and argued that from that time on the applicants could no longer claim to be victims of discrimination, because the amended provisions were formulated in a gender-neutral way. 38. The Court reiterates that, for the purposes of Article 14, a difference in treatment is discriminatory if it has no objective and reasonable justification, that is, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Petrovic, cited above, p. 586, § 30). Furthermore, very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention (see Burghartz v. Switzerland, cited above, § 27; Karlheinz Schmidt v. Germany, 18 July 1994, § 24, Series A no. 291-B; Salgueiro da Silva Mouta v. Portugal, no. 33290/96, § 29, ECHR 1999-IX; Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 94, ECHR 1999-VI; Fretté v. France, no. 36515/97, §§ 34 and 40, ECHR 2002-I; and S.L. v. Austria, no. 45330/99, § 36, ECHR 2003-I). Just like differences based on sex, differences based on sexual orientation require particularly serious reasons by way of justification (see Karner v. Austria, no. 40016/98, § 36, ECHR 2003‑IX). 39. In order to determine whether the difference in treatment that the applicants complained of had an objective and reasonable justification, the Court will consider each of the periods separately. (a) First period: until the entry into force of section 56(6a) of the CSSAIA on 1 August 2006 40. The Court notes that on 1 July 1997 the first applicant asked the CSIC to recognise him as a dependent of the second applicant and to extend the latter's health and accident insurance cover to him. On 2 September 1997 the CSIC dismissed the request, holding that, because the first applicant was of the same sex as the second applicant, he did not qualify as a dependent within the meaning of section 56(6) of the CSSAIA. It did not accept the applicants' argument that section 56(6) should be interpreted so as to also include homosexual relationships. The appeal authorities also refuted this argument. The Administrative Court, in its judgment of 4 October 2001 found that the exclusion of homosexual partnerships from the scope of section 56(6) of the CSSAIA also complied with the principle of equality because that difference in treatment was justified. It argued that, while it was true that where persons of different sex living together in a household in which one of them was running that household and not being gainfully employed, it was, as a rule, safe to conclude that they were cohabiting in a partnership, that was not the case if two persons of the same sex were living together in a household. In the absence of any possibility to register a homosexual partnership, it would be necessary to undertake delicate enquiries into the most intimate sphere of the person concerned. That difference in the factual situation justified different treatment in law. 41. The Court further observes that the Government themselves have not given any justification for the difference in treatment experienced by the applicants and that experienced by cohabitees of the opposite sex. 42. The Court reiterates that in the case of Karner v. Austria, which bears certain similarities to the present case, it found that in cases in which the margin of appreciation afforded to States is narrow, as is the position where there is a difference in treatment based on sex or sexual orientation, the principle of proportionality does not merely require that the measure chosen is in principle suited for realising the aim sought. It must also be shown that it was necessary in order to achieve that aim to exclude certain categories of people - in this instance persons living in a homosexual relationship - from the scope of application of a specific provision of law (see Karner, cited above, § 41). It does not consider, however, that the Government or the domestic authorities and courts have advanced any arguments that would allow such a conclusion. Accordingly, there was a breach of Article 14, read in conjunction with Article 8, in respect of the period in question. (b) Second period: from the entry into force of section 56(6a) of the CSSAIA on 1 August 2006 until the entry into force of the amended section 56(6) and (6a) of the CSSAIA on 30 June 2007 43. The Court considers that the discriminatory character of the CSSAIA established above did not change after the first amendment, because unmarried male/female couples qualified for preferential treatment, whereas unmarried couples of the same sexual orientation, irrespective of their sexual orientation, only qualified if they were raising children together. Even though the situation improved as a result of that amendment because homosexual couples were in principle no longer excluded from the scope of application of section 56 of the CSSAIA, there remained a substantial difference in treatment for which no sufficient justification had been advanced by the Government. 44. Accordingly, there was also a breach of Article 14, read in conjunction with Article 8, in respect of this period. (c) Third period: after the entry into force of the amended section 56(6) and (6a) of the CSSAIA on 1 July 2007 45. The Court observes that the newly amended version of the CSSAIA as in force from 1 July 2007 onwards omitted the explicit reference to partners of the opposite sex in section 56(6a) and restricted the scope of application of section 56(6) to relatives. It is thus formulated in a neutral way concerning the sexual orientation of cohabitees. 46. The applicants submitted that, following the above-mentioned amendment, the legal situation is still discriminatory, because the opportunity to extend health and accident insurance cover has become more difficult following the amendment because additional conditions were introduced which not all couples, and in particular the applicants, fulfil. Moreover, they were also victims of discrimination because persons to whom the extension of insurance cover had been granted before the entry into force of the amendment continued to benefit from an extension of the insurance cover. 47. As regards the applicants' first argument, the Court observes that Article 14 of the Convention only guarantees a right to equal treatment of persons in relatively similar situations but does not guarantee access to specific benefits. It further observes that the condition to which the applicants refer, the raising of children in the common household, is formulated in a neutral way and the applicants did not argue that under Austrian law homosexuals are excluded from caring for children. 48. As regards the applicants' second argument, the Court observes that, according to the transitory provision of section 217 of the CSSAIA, the continued application of section 56(6a) is restricted to persons having passed a certain age limit and where the relevant circumstances remain the same, and also applies to those who will not have yet reached the age limit by 31 December 2010. The Court cannot find that it is incompatible with the requirements of Article 14 for those who have previously been entitled to a specific benefit under the law in force at the time to be given sufficient time to adapt to changing circumstances. 49. In this context, the Court notes its case-law according to which the principle of legal certainty, which is necessarily inherent in the law of the Convention, may dispense States from questioning legal acts or situations that antedate judgments of the Court declaring domestic legislation incompatible with the Convention. The same considerations apply where a constitutional court annuls domestic legislation as being unconstitutional (see Marckx v. Belgium, 13 June 1979, § 58, Series A no. 31). Moreover, it has also been accepted, in view of the principle of legal certainty that a constitutional court may set a time-limit for the legislator to enact new legislation with the effect that an unconstitutional provision remains applicable for a transitional period (see Walden v. Liechtenstein (dec.), no. 33916/96, 16 March 2000; and J.R. v. Germany (dec.), no. 22651/93, Decisions and Reports 83-A). 50. The Court therefore considers that from 1 July 2007 the applicants were no longer subject to an unjustified difference in treatment as regards the benefit of extending health and accident insurance cover to the second applicant. Accordingly there was no breach of Article 14, read in conjunction with Article 8, in respect of this period. II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION READ IN CONJUNCTION WITH ARTICLE 1 PROTOCOL No. 1 51. The applicants also complained under Article 14 of the Convention, read in conjunction with Article 1 of Protocol No. 1, that the Administrative Court's decision violated their right to the peaceful enjoyment of their property. Article 1 of Protocol No. 1, in so far as relevant, reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest ....” 52. The Court observes that neither the Government nor the applicants submitted any observations in this respect. Having regard to its finding under Article 14, read in conjunction with Article 8, the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 14 read in conjunction with Article 1 of Protocol No. 1. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 53. 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 54. The applicants claimed pecuniary damage in the amount of 28,375.12 euros (EUR) for the period from 1993 until May 2008 plus EUR 81.52 per month from that date onwards. They submitted that, because it had been impossible to extend the second applicant's health and accident insurance cover to the first applicant, the first applicant had had to subscribe to an individual health insurance for himself which had cost him in contributions EUR 11,375.12 from 1993 until May 2008 plus a lump sum for non-reimbursed vaccination costs in the amount of EUR 1,000 and costs for medical care abroad in the amount of EUR 16,000. Lastly, they claimed EUR 81.52 per month, from May 2008 onwards, which was the monthly contribution of the first applicant to his health and accident insurance scheme. 55. The Government submitted that that claim was excessive because the first applicant could have avoided a large portion of the amount claimed for the individual health insurance contract by subscribing to the general social insurance scheme. The monthly contributions under that scheme were moderate and could even have been reduced in the event of hardship. Moreover, the period for which reimbursement of those costs could be claimed only started in July 1997, when the applicants first applied to include the first applicant in the second applicant's health insurance scheme. It must also be taken into account that even if the extension to the insurance cover had been granted, additional contributions for such an extension would have had to have been paid from January 2001 onwards. Such hypothetical costs would have had to have been offset against the applicants' reimbursement claim. The claim for vaccination costs was unfounded, because, in any event, such costs were not covered by the insurance scheme to which the first applicant wished to adhere. The lump sum claim for medical treatment abroad was equally unfounded because normally such treatment was also covered by a health clause in a private travel insurance contract and, in any event, the applicants failed to substantiate that claim. 56. The Court observes first that it has found a breach of Article 14, read in conjunction with Article 8, only in respect of the period until 30 June 2007. Thus, it cannot make any award for claims which relate to the subsequent period. The Court further observes that, as regards the claims for reimbursement of vaccination costs and costs of medical treatment abroad the applicants have merely indicated a lump sum and failed to substantiate their claim. Thus, no award for pecuniary damage can be made in this respect. Nevertheless, the Court is convinced that the applicants, as a consequence of the refusal of the request for extension of the second applicant's health and accident insurance cover to the first applicant and the ensuing necessity for him to subscribe to another insurance scheme, have suffered financial loss. However, the sums claimed by the applicants are excessive because it seems reasonable, as argued by the Government, to start the period for which reimbursement may in principle be granted only when the applicants made a concrete step to have the insurance cover extended in 1997 and to deduct costs the applicants would have incurred if the extension of the insurance cover had actually been granted. Having regard to the above considerations the Court grants, on an equitable basis, EUR 5,000 under this head plus any tax that may be chargeable on this amount. 57. The applicants claimed non-pecuniary damage in the amount of EUR 36,000. 58. The Government considered this claim excessive and found that, in the circumstances of the present case, the finding of a violation constituted in itself sufficient redress. 59. The Court considers that the applicants must have sustained non‑pecuniary damage. Ruling on an equitable basis, it awards them EUR 10,000 under this head plus any tax that may be chargeable on this amount. B. Costs and expenses 60. The applicants claimed costs and expenses incurred in the domestic proceedings in the amount of EUR 5,408.62, including Turnover Tax, and costs and expenses incurred in the proceedings before the Court in the amount of EUR 10,273.67, also including Turnover Tax. In addition, the applicants claimed a lump sum of EUR 2,500 for out of pocket expenses for them and EUR 500 for translation. 61. The Government disputed this claim as being excessive. In their view it should be taken into account that the submissions made before the domestic authorities and courts and those made before the Court were to a large extent identical. 62. The Court finds that no reimbursement of out of pocket expenses and costs for translation can be granted because the applicants have failed to submit receipts in order to substantiate these claims. 63. As regards the claim for costs and expenses incurred in the domestic proceedings and before the Court, the Court reiterates that, according to its 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 in order to prevent or redress the violation found and were reasonable as to quantum. 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 applicants EUR 4,500 in respect of the domestic proceedings and EUR 5,500 in respect of the Convention proceedings. Consequently, the Court awards the applicants EUR 10,000 in respect of costs and expenses, plus any tax that may be chargeable to them. C. Default interest 64. 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 1. Holds by five votes to two that there has been a violation of Article 14, read in conjunction with Article 8 of the Convention, as regards the period until 1 August 2006; 2. Holds unanimously that there has been a violation of Article 14, read in conjunction with Article 8 of the Convention, as regards the period from 1 August 2006 until 30 June 2007; 3. Holds unanimously that there has been no violation of Article 14, read in conjunction with Article 8 of the Convention, as regards the period from 1 July 2007 onwards; 4. Holds unanimously that it is not necessary to examine the application also under Article 14 of the Convention, read in conjunction with Article 1 of Protocol No. 1; 5. Holds unanimously (a) that the respondent State is to pay the applicants, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage, EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage and EUR 10,000 (ten thousand euros), plus any tax that may be chargeable to the applicants, 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; 6. Dismisses unanimously the remainder of the applicants' claim for just satisfaction. Done in English, and notified in writing on 22 July 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Vajić and Malinverni is annexed to this judgment. C.L.R.S.N. JOINT PARTLY DISSENTING OPINION OF JUDGES VAJIĆ AND MALINVERNI (Translation) We are unable to agree with the majority's opinion that, in the present case, there had been a violation of Article 8, taken together with Article 14 of the Convention, during the “first period”, running from 1 July 1997 to 1 August 2006, date of the entry into force of Article 56 (6a) of the CSSAIA (see paragraphs 36 to 38 of the judgment). It was on 1 July 1997 that the first applicant asked the CSIC to recognise him as a dependant of the second applicant and to extend the latter's health and accident insurance cover to him (see paragraph 7 of the judgment). We find it quite understandable that, at the material time, the Austrian authorities should have denied the first applicant's request on the ground that Article 56 (6) of the CSSAIA could not be interpreted so as to include homosexual relationships. To be sure, at that time very few European States had enacted legislation on registered partnerships (such as the French PACS), and there was also a very small number of States that treated on an equal footing, for social security purposes, two cohabiting persons of the opposite sex and two homosexuals living together. At the present time, apart from the six member States that grant same-sex couples the right to marry, namely Belgium, the Netherlands, Norway, Portugal, Spain and Sweden (see the case of Schalk and Kopf v. Austria, no. 30141/04, 24 June 2010, § 27), only thirteen countries have enacted a law on registered partnerships. Most of those have only done so since 2000: Belgium, Luxembourg, Switzerland and the United Kingdom in 2004, Estonia in 2005, and the Czech Republic in 2006. Only Denmark, Norway and Sweden had enacted such legislation in the 1990s. It can thus be said that at the material time there was no European consensus as to whether homosexual couples should be treated on an equal footing with heterosexual couples, even unmarried ones, for various legal purposes in general, and for that of social security in particular. In these conditions we find it difficult to accept that the decisions by the various competent Austrian authorities rejecting the applicants' request, all those decisions having been issued between 1997 and 2001 (see paragraphs 8 to 14), may be regarded as contrary to Articles 8 and 14 taken together. As the Constitutional Court found in its judgment of 15 June 1998, in the absence of a European consensus, “the legislator had had a very wide margin in which to reach a decision and the decision taken had been within that margin” (paragraph 12).

FIRST SECTION CASE OF ÖLLINGER v. AUSTRIA (Application no. 76900/01) JUDGMENT STRASBOURG 29 June 2006 FINAL 29/09/2006 In the case of Öllinger v. Austria, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Loukis Loucaides,Françoise Tulkens,Elisabeth Steiner,Khanlar Hajiyev,Dean Spielmann,Sverre Erik Jebens, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 8 June 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 76900/01) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Mr Karl Öllinger (“the applicant”), on 31 July 2001. 2. The applicant was represented by Mr M. Hager, a lawyer practising in Linz. The Austrian Government (“the Government”) were represented by their Agent, Mr F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry of Foreign Affairs. 3. The applicant alleged, in particular, a violation of his right to freedom of assembly. 4. The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 5. By a decision of 24 March 2005, the Court declared the application admissible. 6. The parties did not submit further observations on the merits (Rule 59 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1951 and lives in Vienna. 8. On 30 October 1998 the applicant, who is a member of parliament for the Green Party, notified the Salzburg Federal Police Authority (Bundespolizeidirektion) under section 2 of the Assembly Act (Versammlungsgesetz) that on All Saints’ Day, 1 November 1998, from 9 a.m. until 1 p.m., he would be holding a meeting at the Salzburg municipal cemetery in front of the war memorial. He noted that the meeting would coincide with the gathering of Comradeship IV (Kameradschaft IV), which he considered to be unlawful. 9. The purpose of the meeting was to be to commemorate the Salzburg Jews killed by the SS during the Second World War. The applicant expected about six participants, who would carry commemorative messages in their hands and attached to their clothes. The applicant stated that no other means of expression (such as chanting or banners) which might offend piety or undermine public order would be used. 10. On 31 October 1998 the Salzburg Federal Police Authority, relying on section 6 of the Assembly Act and on Article 11 of the Convention, prohibited the meeting on the ground that it would endanger public order and security. 11. The authority noted that F.E., also a member of parliament for the Green Party, had informed the Salzburg Federal Police Authority of the allegedly illegal assembly of Comradeship IV in memory of the SS soldiers killed in the Second World War which was to be held at the same time and place, but had refused to give an undertaking that the proposed meeting in memory of the murdered Salzburg Jews would not disrupt that gathering. 12. The Salzburg Federal Police Authority noted that Comradeship IV was a registered association. Like a number of other organisations, it traditionally held a commemoration ceremony at the Salzburg municipal cemetery on All Saints’ Day. Such commemorations qualified as popular ceremonies within the meaning of section 5 of the Assembly Act and thus did not require authorisation. The disruption of this and other commemoration ceremonies was likely to offend the religious feelings of members of the public visiting the cemetery and would indisputably be regarded as disrespectful towards the dead soldiers of both world wars and thus as an unbearable provocation. Accordingly, there was a risk of protests by visitors to the cemetery which could degenerate into open conflict between them and those participating in the assembly. 13. The Salzburg Federal Police Authority ordered that any remedies used against its decision should not have suspensive effect. Accordingly, the demonstration could not take place. 14. On 17 August 1999 the Salzburg Public Security Authority (Sicherheitsdirektion) dismissed an appeal by the applicant. 15. It noted that Comradeship IV was a registered association whose members were mainly former members of the SS. For more than forty years they had commemorated SS soldiers killed in the Second World War by gathering on All Saints’ Day and laying a wreath in front of the war memorial at the Salzburg municipal cemetery. In the past few years, a number of organisations had organised protest campaigns with the aim of disrupting the Comradeship IV commemoration ceremony. These protests had led to vehement discussions with members of Comradeship IV and other visitors to the cemetery and had required intervention by the police. 16. The Public Security Authority, referring to the submissions of F.E., found that the assembly planned by the applicant was also aimed at a confrontation with Comradeship IV and concluded that its prohibition was necessary for the maintenance of public order and for the protection of the Comradeship IV commemoration ceremony. 17. On 13 December 2000 the Constitutional Court (Verfassungsgerichtshof) dismissed a complaint by the applicant alleging violations of his rights to freedom of assembly, freedom of expression, freedom of religion and non-discrimination. 18. The Constitutional Court observed that the authorities deciding on the prohibition of an assembly had to weigh the applicant’s interest in holding the meeting against the public interests enumerated in Article 11 § 2 of the Convention. It went on to say that the prohibition of the proposed meeting would not be justified if its sole purpose were to protect the Comradeship IV commemoration ceremony and expressed doubts as to the authorities’ assessment that the latter meeting was a popular ceremony within the meaning of section 5 of the Assembly Act and therefore did not require authorisation. Nevertheless, the prohibition of the meeting proposed by the applicant was justified for other reasons. 19. The authorities had also had regard to the fact that the gathering of Comradeship IV had in previous years been the target of activities aimed at disrupting it which had caused considerable nuisance to other visitors of the cemetery and had each time required police intervention. The authorities had therefore correctly assumed that the prohibition of the assembly planned by the applicant was necessary to protect the general public against potential disturbances. 20. The Constitutional Court added further considerations in support of that conclusion. It observed that All Saints’ Day was an important religious holiday on which the population traditionally visited cemeteries in order to commemorate the dead. As a religious tradition, the commemoration of the dead was protected by Article 9 of the Convention, which contained a positive obligation for the State to protect persons manifesting their religion against deliberate disturbance by others. Thus, the prohibition of the assembly in issue was necessary under Article 11 § 2 of the Convention for the protection of the rights and freedoms of others. It followed that it did not violate any other Convention right relied on by the applicant. 21. That decision was served on the applicant’s counsel on 5 February 2001. II. RELEVANT DOMESTIC LAW 22. The Assembly Act 1953 (Versammlungsgesetz) regulates the exercise of the right to freedom of assembly. Section 2(1) provides that any person intending to organise a public assembly or any assembly which is generally open to persons other than invited guests must give the authorities notice in writing at least twenty-four hours in advance, indicating the purpose, place and time of the meeting. 23. Pursuant to section 5, certain gatherings such as public entertainment, popular ceremonies or religious processions do not fall within the scope of the Assembly Act. 24. Pursuant to section 6, the competent authority must prohibit any assembly which would contravene criminal law or endanger public order and security. THE LAW I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 25. The applicant complained of the prohibition of an assembly he had intended to hold on All Saints’ Day in commemoration of the Salzburg Jews murdered by the SS during the Second World War. He relied in the first place on Article 11 of the Convention, which provides: “1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, 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. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.” A. The parties’ submissions 26. The applicant agreed with the position taken by the Constitutional Court, namely that the prohibition of the assembly in question could not be justified solely by the aim of protecting the meeting of Comradeship IV against disturbances. 27. In his submission, the prohibition had not been justified for any other reasons either. He asserted that the position taken by the authorities in the domestic proceedings and by the Government before the Court disregarded the fact that the purpose of the meeting was to express an opinion, namely to remind the public of the crimes committed by the SS and to commemorate the Jews killed by its members. That the meeting coincided with the ceremony organised by Comradeship IV, whose members were mainly former members of the SS, was an essential part of the message he wished to convey. The authorities had failed to give sufficient reasons for the prohibition. Furthermore, they had not correctly weighed up the interests of the applicant and of Comradeship IV in holding their respective meetings and had not made any efforts to ensure that both assemblies could take place. The contested decisions were tantamount to protecting the commemoration ceremony for SS soldiers against legitimate criticism. 28. The Government submitted that the interference with the applicant’s right to freedom of assembly was prescribed by law, namely by section 6 of the Assembly Act. It served a legitimate aim, as its purpose was to maintain public order and to protect the rights and freedoms of others, namely the undisturbed worship of all those visiting the cemetery on All Saints’ Day, an activity which was itself protected by Article 9 of the Convention. 29. As to the question whether the prohibition of the assembly planned by the applicant had been necessary, the Government pointed out that the Constitutional Court’s case-law required the authorities to weigh the applicant’s interest in holding the assembly against the public interests enumerated in the second paragraph of Article 11. Furthermore, in assessing whether the assembly would run counter to these interests they were required to rely on circumstances which could be objectively verified. A number of factors justified the authorities’ assumption that the applicant’s assembly had been mainly aimed at disrupting the commemoration ceremony organised by Comradeship IV: the time and venue chosen for the assembly so as to make it coincide with the gathering of Comradeship IV; the view expressed by the applicant and by F.E., another member of the Green Party, that the latter gathering was unlawful; and their failure to give the required assurances not to disrupt the Comradeship IV wreath-laying ceremony. Furthermore, the authorities had rightly assumed that a confrontation between the two groups would endanger public order at the municipal cemetery and offend the religious feelings of uninvolved visitors. In arriving at that conclusion, the authorities had also been able to rely on experiences from previous years in which assemblies like the one planned by the applicant had annoyed visitors, had led to heated discussions and had required police intervention. 30. The Government conceded that an assembly could not be prohibited solely on the ground of a certain likelihood of tensions and confrontations between opposing groups. However, in the particular circumstances of the case, the prohibition had been justified in order to protect the rights of others as guaranteed by Article 9 of the Convention. All Saints’ Day was traditionally devoted to commemorating the dead and the prohibition of the assembly, a measure aimed at avoiding loud disputes unbefitting the peace and quiet of a cemetery, had been necessary to ensure that visitors could manifest their religious beliefs without disturbance. 31. Given that disturbances could not be ruled out, the authorities had not been under a positive obligation to allow both meetings, all the more so as measures designed to prevent confrontations (such as a police cordon) would themselves have disturbed the peace required at a cemetery on All Saints’ Day. B. The Court’s assessment 32. It is common ground that the prohibition in issue constituted an interference with the applicant’s right to freedom of peaceful assembly which was prescribed by law, namely by section 6 of the Assembly Act, and served legitimate aims recognised in Article 11 § 2 of the Convention, namely the “prevention of disorder” and “the protection of the rights and freedoms of others”. 33. The parties’ submissions concentrate on the question whether the interference was also “necessary in a democratic society” within the meaning of Article 11 § 2. The Court reiterates that the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it is for the Court to give the final ruling on whether a restriction is reconcilable with the rights protected by the Convention. In carrying out its scrutiny, the Court must look at the interference complained of in the light of the case as a whole and determine, after having established that it pursued a legitimate aim, whether it was proportionate to that aim and whether the reasons adduced by the national authorities to justify it were “relevant and sufficient” (see Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, § 87, ECHR 2001‑IX). 34. The Court notes at the outset that the present case is one concerned with competing fundamental rights. The applicant’s right to freedom of peaceful assembly and his right to freedom of expression have to be balanced against the association’s right to protection against disruption of its assembly and the cemetery-goers’ right to protection of their freedom to manifest their religion. 35. As regards the right to freedom of peaceful assembly as guaranteed by Article 11, the Court reiterates that it comprises negative and positive obligations on the part of the Contracting State. 36. On the one hand, the State is compelled to abstain from interfering with that right, which also extends to a demonstration that may annoy or give offence to persons opposed to the ideas or claims that it is seeking to promote (see Stankov and the United Macedonian Organisation Ilinden, cited above, § 86, and Plattform “Ärzte für das Leben” v. Austria, 21 June 1988, § 32, Series A no. 139). If every probability of tension and heated exchange between opposing groups during a demonstration was to warrant its prohibition, society would be faced with being deprived of the opportunity of hearing differing views (see Stankov and the United Macedonian Organisation Ilinden, cited above, § 107). 37. On the other hand, States may be required under Article 11 to take positive measures in order to protect a lawful demonstration against counter-demonstrations (see Plattform “Ärzte für das Leben”, cited above, § 34). 38. Notwithstanding its autonomous role and particular sphere of application, Article 11 must also be considered in the light of Article 10. The protection of opinions and the freedom to express them is one of the objectives of freedom of assembly and association enshrined in Article 11 (see Stankov and the United Macedonian Organisation Ilinden, cited above, § 85). In this connection, it must be borne in mind that there is little scope under Article 10 § 2 for restrictions on political speech or on debate on questions of public interest (ibid., § 88; see also Scharsach and News Verlagsgesellschaft v. Austria, no. 39394/98, § 30, ECHR 2003‑XI). 39. Turning finally to Article 9 of the Convention, the Court has held that, while those who choose to exercise the freedom to manifest their religion cannot reasonably expect to be exempt from all criticism, the responsibility of the State may be engaged where religious beliefs are opposed or denied in a manner which inhibits those who hold such beliefs from exercising their freedom to hold or express them. In such cases the State may be called upon to ensure the peaceful enjoyment of the right guaranteed under Article 9 to the holders of those beliefs (see Otto-Preminger-Institut v. Austria, 20 September 1994, § 47, Series A no. 295‑A). 40. In the present case, the Salzburg Federal Police Authority and the Salzburg Public Security Authority considered the prohibition of the applicant’s assembly necessary in order to prevent disturbances of the Comradeship IV commemoration meeting, which was considered a popular ceremony not requiring authorisation under the Assembly Act. They had particular regard to the experience of previous protest campaigns by other organisers against the gathering of Comradeship IV, which had provoked vehement discussions, had disturbed other visitors to the cemetery and had made police intervention necessary. 41. The Constitutional Court dismissed this approach as being too narrow. It observed that the prohibition of the intended meeting would not be justified if its sole purpose were the protection of the Comradeship IV commemoration ceremony. It went on to say that the prohibition was nevertheless justified or even required by the State’s positive obligation under Article 9 to protect persons manifesting their religion against deliberate disturbance by others. In arriving at that conclusion, the Constitutional Court had particular regard to the fact that All Saints’ Day was an important religious holiday on which the population traditionally went to cemeteries to commemorate the dead and that disturbances caused by disputes between members of the assembly organised by the applicant and members of Comradeship IV were likely to occur in the light of the experience of previous years. 42. The Court notes that the domestic authorities had regard to the various competing Convention rights. Its task is to examine whether they achieved a fair balance between them. 43. The applicant’s assembly was clearly intended as a counter-demonstration to protest against the gathering of Comradeship IV, an association which undisputedly consists mainly of former members of the SS. The applicant emphasises that the main purpose of his assembly was to remind the public of the crimes committed by the SS and to commemorate the Salzburg Jews murdered by them. The coincidence in time and venue with the commemoration ceremony of Comradeship IV was an essential part of the message he wanted to convey. 44. In the Court’s view, the unconditional prohibition of a counter-demonstration is a very far-reaching measure which would require particular justification, all the more so as the applicant, being a member of parliament, essentially wished to protest against the gathering of Comradeship IV and, thus, to express an opinion on an issue of public interest (see, mutatis mutandis, Jerusalem v. Austria, no. 26958/95, § 36, ECHR 2001‑II). The Court finds it striking that the domestic authorities attached no weight to this aspect of the case. 45. It is undisputed that the aim of protecting the gathering of Comradeship IV does not provide sufficient justification for the contested prohibition. This has been clearly pointed out by the Constitutional Court. The Court fully agrees with that position. 46. Therefore, it remains to be examined whether the prohibition was justified to protect the cemetery-goers’ right to manifest their religion. The Constitutional Court relied on the solemn nature of All Saints’ Day, traditionally dedicated to the commemoration of the dead, and on the disturbances experienced in previous years as a result of disputes between members of Comradeship IV and members of counter-demonstrations. 47. However, the Court notes a number of factors which indicate that the prohibition in issue was disproportionate to the aim pursued. First and foremost, the assembly was in no way directed against the cemetery-goers’ beliefs or the manifestation of them. Moreover, the applicant expected only a small number of participants. They envisaged peaceful and silent means of expressing their opinion, namely the carrying of commemorative messages, and had explicitly ruled out the use of chanting or banners. Thus, the intended assembly in itself could not have hurt the feelings of cemetery-goers. Moreover, while the authorities feared that, as in previous years, heated debates might arise, it was not alleged that any violent incidents had occurred on previous occasions. 48. In these circumstances, the Court is not convinced by the Government’s argument that allowing both meetings while taking preventive measures, such as ensuring police presence in order to keep the two assemblies apart, was not a viable alternative which would have preserved the applicant’s right to freedom of assembly while at the same time offering a sufficient degree of protection as regards the rights of the cemetery’s visitors. 49. Instead, the domestic authorities imposed an unconditional prohibition on the applicant’s assembly. The Court therefore finds that they gave too little weight to the applicant’s interest in holding the intended assembly and expressing his protest against the meeting of Comradeship IV, while giving too much weight to the interest of cemetery-goers in being protected against some rather limited disturbances. 50. Having regard to these factors, and notwithstanding the margin of appreciation afforded to the State in this area, the Court considers that the Austrian authorities failed to strike a fair balance between the competing interests. 51. Consequently, there has been a violation of Article 11 of the Convention. II. ALLEGED VIOLATION OF ARTICLES 9, 10 AND 14 OF THE CONVENTION 52. The applicant also relied on Articles 9, 10 and 14 of the Convention. 53. Having regard to the above considerations, the Court finds that no separate examination is warranted under these Articles. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 54. 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. Costs and expenses 55. The applicant, stating that he did not wish to claim any damages, claimed a total amount of 7,577.86 euros (EUR) inclusive of value-added tax (VAT) for costs and expenses, comprising EUR 2,378.88 incurred in the domestic proceedings, namely the proceedings before the Constitutional Court, and EUR 5,198.98 incurred in the Convention proceedings. 56. The Government did not comment on the claim relating to the domestic proceedings, but contended that the claim in respect of costs incurred in the Convention proceedings was excessive. 57. The Court reiterates that in order for costs and expenses to be included in an award under Article 41 of the Convention, it must be established that they were actually and necessarily incurred and are reasonable as to quantum (see, for instance, Feldek v. Slovakia, no. 29032/95, § 104, ECHR 2001‑VIII). 58. As regards the costs of the domestic proceedings, the Court finds that they were necessarily incurred and are reasonable as to quantum. It therefore awards them in full, namely EUR 2,378.88. 59. The costs of the Convention proceedings were also necessarily incurred. Having regard to the sums awarded in comparable cases (see, for instance, Wirtschafts-Trend Zeitschriften-Verlags GmbH v. Austria, no. 58547/00, § 59, 27 October 2005) and making an assessment on an equitable basis, the Court awards the applicant EUR 3,500. 60. In sum, the Court awards the applicant EUR 5,878.88, inclusive of VAT, under the head of costs and expenses. B. Default interest 61. 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 1. Holds by six votes to one that there has been a violation of Article 11 of the Convention; 2. Holds unanimously that it is not necessary to examine separately the applicant’s complaints under Articles 9, 10 and 14 of the Convention; 3. Holds by six votes to one (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 5,878.88 (five thousand eight hundred and seventy-eight euros eighty-eight cents) 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses unanimously the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 29 June 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Judge Loucaides is annexed to this judgment. C.L.R. S.N. DISSENTING OPINION OF JUDGE LOUCAIDES I disagree with the finding that there has been a violation of Article 11 of the Convention in this case. I find the judgment of the Austrian Constitutional Court in all respects reasonable and in line with the provisions of Article 11. In particular I find that the Constitutional Court was right in finding that the prohibition of the assembly in issue was necessary for the protection of the rights and freedoms of others, namely all those persons visiting the cemetery in order to commemorate the dead on All Saints’ Day. As was rightly observed by the same court, that day is an important religious holiday and the commemoration of the dead is protected by Article 9 of the Convention, which contains a positive obligation for the State to protect persons manifesting their religion against deliberate disturbance by others. The applicant sought authorisation for a meeting to be organised by him in Salzburg cemetery in front of the war memorial. The meeting would coincide in place and time with the gathering of Comradeship IV in memory of the SS soldiers killed in the Second World War, and its purpose would be to commemorate the Salzburg Jews killed by the SS during the same war. The applicant expected about six participants, who would carry commemorative messages in their hands and attached to their clothes. He stated that no other means of expression (such as chanting or banners) which might offend piety or public order would be used. However, there was undisputed evidence that another member of the same party organising the meeting had refused to give an undertaking that the proposed meeting in memory of the murdered Salzburg Jews would not disrupt the gathering of Comradeship IV. Furthermore, in the past few years a number of organisations had organised protest campaigns with the aim of disrupting Comradeship IV’s commemoration ceremony. These protests had led to vehement discussions with members of Comradeship IV and other visitors to the cemetery and had required intervention by the police. In the circumstances, the Constitutional Court was right in finding that the authorities had correctly assumed that the prohibition of the assembly being organised by the applicant was necessary to protect the general public against potential disturbances. I would like also to add the following: the gathering of Comradeship IV in memory of the SS soldiers killed in the Second World War was regarded by the authorities as not requiring any authorisation because it qualified as a “popular ceremony” within the meaning of section 5 of the Assembly Act. The Constitutional Court expressed doubts regarding the correctness of this finding. I share these doubts and I would even go so far as to say that personally I do not see how such a finding can legally be justified. Be that as it may, the fact remains that Comradeship IV was a registered association and for more than forty years had commemorated SS soldiers killed in the Second World War by gathering on All Saints’ Day and laying a wreath in front of the war memorial at Salzburg municipal cemetery. If the applicant’s aim was to contest the legality of this provocative gathering, the proper way to do so was indisputably through legal means or peaceful demonstrations against the authorities who allowed the gatherings, and certainly not through a confrontation in a cemetery on All Saints’ Day. In substance, the assembly planned by the applicant was a political meeting whose objectives may have been understandable (see paragraph 43 of the judgment), but I fail to see how the time and place of such meeting showed any respect for the rights of others in the cemetery (not belonging to Comradeship IV). The time and place of the proposed demonstration or gathering were not appropriate. A cemetery is a sacred place and is not, in my opinion, the proper place, especially on All Saints’ Day, for political demonstrations, however respectable they may be, when other people are present in the cemetery and have a right to peaceful commemoration of the dead. This, I believe, becomes even more evident when there is undisputed evidence, as in this case, of a real danger of such disturbances in the cemetery as to require intervention by the police. All civilised people agree that the Nazis and their SS were a horrible part of the history of mankind. The Holocaust and other abhorrent crimes against the Jews and other peoples received the condemnation of the whole world and millions of people died in order to save humanity from this scourge. However, I repeat that there is a time and place for any political demonstration or gathering entailing disturbances at the expense of the rights of others. Finally, I feel the need to deal with the major points of the reasoning of the majority, which are as follows: (a) “[T]he assembly was in no way directed against the cemetery-goers’ beliefs or the manifestation of them” (paragraph 47 of the judgment) The assembly would have had the inevitable result of interfering with the rights of the cemetery-goers, and that should have been known by those participating in it. Even though it was not their principal aim, the result would have been the same. (b) “Moreover, the applicant expected only a small number of participants. They envisaged peaceful and silent means of expressing their opinion, namely the carrying of commemorative messages, and had explicitly ruled out the use of chanting or banners. Thus, the intended assembly in itself could not have hurt the feelings of cemetery-goers” (paragraph 47) The participants would have formed an organised group of persons sharing the same objective of confrontation with Comradeship IV. Therefore, the small number of members of this group would not have changed the fact that a certain disturbance would inevitably be caused at the expense of the rights of the others in the cemetery. Here, the majority ignore the fact that one of the members of the party organising this assembly “refused to give an undertaking that the proposed meeting in memory of the murdered Salzburg Jews would not disrupt th[e] gathering [of Comradeship IV]” (see paragraph 11 of the judgment). Furthermore, commemorative messages are not silent means of expressing an opinion, for they speak for themselves, and even though the message conveyed would have been just and fair, it would still have been a kind of provocation. (c) “[W]hile the authorities feared that, as in previous years, heated debates might arise, it was not alleged that any violent incidents had occurred on previous occasions” (paragraph 47) The majority accept the possibility of heated debates – and in any event there was undisputed evidence that these had occurred in previous years. However, it seems that they consider that such debates would not amount to a disturbance as long as there were no “violent incidents”. I find no difficulty in disagreeing with that. In any event, one cannot reasonably exclude the possibility that heated debates might develop into violent incidents. It is also useful to note that, according to the facts, the past incidents “had disturbed other visitors to the cemetery and had made police intervention necessary” (paragraph 40 of the judgment). (d) “[T]he Court is not convinced by the Government’s argument that allowing both meetings while taking preventive measures, such as ensuring police presence in order to keep the two assemblies apart, was not a viable alternative which would have preserved the applicant’s right to freedom of assembly while at the same time offering a sufficient degree of protection as regards the rights of the cemetery’s visitors” (paragraph 48) The majority find that an arrangement consisting in allowing both meetings while taking preventive measures such as ensuring police presence in order to keep the two assemblies separated would have been a solution. However, I do not see how (i) the police presence for the purpose in question would not in itself have upset the peace required for the protection of the rights of the cemetery visitors, and (ii) the police presence could have prevented heated debates. It could possibly have prevented violent incidents, but even the effort to do so would have entailed sufficient disturbance in the cemetery. (e) “The Court therefore finds that they gave too little weight to the applicant’s interest in holding the intended assembly and expressing his protest against the meeting of Comradeship IV, while giving too much weight to the interest of cemetery-goers in being protected against some rather limited disturbances” (paragraph 49) The facts before the Court do not, in my view, support such a conclusion, especially the finding to the effect that the disturbances would have been “rather limited”. In any event, limited or not, disturbances in the cemetery on All Saints’ Day would have been sufficient to justify the application of the limitation regarding the “protection of the rights and freedoms of others” in the circumstances of the present case. (f) “[N]otwithstanding the margin of appreciation afforded to the State in this area, the Court considers that the Austrian authorities failed to strike a fair balance between the competing interests” (paragraph 50) Although I personally am reluctant to invoke the “margin of appreciation” save in exceptional cases, the reference to this concept by the majority in the context of the present case does not appear to have been pertinent, as I believe that they have substituted their own assessment of the circumstances of the case for that of the Constitutional Court and left nothing to the latter’s margin of appreciation. For all the above reasons, I find that there has been no violation of Article 11 of the Convention in this case.

THIRD SECTION CASE OF DZHABAROV AND OTHERS v. RUSSIA (Application no. 51182/10 and 5 others ‑ see appended list) JUDGMENT STRASBOURG 2 February 2017 This judgment is final but it may be subject to editorial revision. In the case of Dzhabarov and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Helena Jäderblom, President,Dmitry Dedov,Branko Lubarda, judges,and Karen Reid, Section Registrar, Having deliberated in private on 12 January 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2. The applications were communicated to the Russian Government (“the Government”). THE FACTS 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of their pre-trial detention. In application no. 59613/14, the applicant also raised other complaints under the provisions of the Convention. THE LAW I. JOINDER OF THE APPLICATIONS 5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 6. The applicants complained principally that their pre-trial detention had been unreasonably long. They relied on Article 5 § 3 of the Convention, which read as follows: “3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” 7. In application no. 51182/10 the Court takes note of the death of Mr Maksim Dzhabarov in 2012, after the introduction of the present application, and of the wish expressed by his widow and his son to continue the application before the Court in his name. 8. The Government submitted that the rights under Article 5 of the Convention were of an eminently personal and non‑transferable nature and that it was therefore no longer justified to continue the examination of the application, which should be struck out of the Court’s list of cases. 9. Regard being had to its well-established case-law (Fartushin v. Russia, no. 38887/09, §§ 33-35, 8 October 2015), the Court thus accepts that the applicant’s widow and son have a legitimate interest in pursuing the application on his behalf. The Government’s preliminary objection should therefore be dismissed. 10. The Court considers that the conditions for striking the case out of the list of pending cases, as defined in Article 37 § 1 of the Convention, have not been met, and that it must continue to examine the application at the request of Mrs Evgeniya Reyfshneyder and Mr Aleksandr Dzhabarov. The Court will refer to the late Mr Maksim Dzhabarov as “the applicant”. 11. The Court observes that the general principles regarding the right to trial within a reasonable time or to release pending trial, as guaranteed by Article 5 § 3 of the Convention, have been stated in a number of its previous judgments (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000‑XI, and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006‑X, with further references). 12. In the leading case of Dirdizov v. Russia, no. 41461/10, 27 November 2012, the Court already found a violation in respect of issues similar to those in the present case. 13. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the applicants’ pre-trial detention was excessive. 14. These complaints are therefore admissible and disclose a breach of Article 5 § 3 of the Convention. III. REMAINING COMPLAINTS 15. In application no. 59613/14, the applicant submitted other complaints which also raised issues under the Convention, in accordance with the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Idalov v. Russia [GC], no. 5826/09, 22 May 2012; Khodorkovskiy v. Russia, no. 5829/04, 31 May 2011; Lebedev v Russia, no. 4493/04, 25 October 2007 (regarding the lack of speediness and procedural safeguards in the review of detention matters). IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 16. 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.” 17. Regard being had to the documents in its possession and to its case‑law (see, in particular, Pastukhov and Yelagin v. Russia, no. 55299/07, 19 December 2013), the Court considers it reasonable to award the sums indicated in the appended table. 18. 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. Holds that Mrs Evgeniya Reyfshneyder and Mr Aleksandr Dzhabarov can pursue the application on behalf of late Mr Maksim Dzhabarov (case no. 51182/10); 2. Decides to join the applications; 3. Declares the applications admissible; 4. Holds that these applications disclose a breach of Article 5 § 3 of the Convention concerning the excessive length of pre-trial detention; 5. Holds that there has been a violation as regards the other complaints raised under well-established case-law of the Court (see appended table); 6. Holds (a) that the respondent State is to pay the applicants (in case no. 51182/10, the applicant’s heirs, Mrs Evgeniya Reyfshneyder and Mr Aleksandr Dzhabarov jointly), within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State 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. Done in English, and notified in writing on 2 February 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Karen ReidHelena Jäderblom RegistrarPresident APPENDIX List of applications raising complaints under Article 5 § 3 of the Convention (excessive length of pre-trial detention) No. Application no.Date of introduction Applicant name Date of birth / Period of detention Length of detention Other complaints under well-established case-law Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros)[1] 51182/10 16/08/2010 Maksim Feliksovich DZHABAROV 06/06/1970 12/01/2010 to 12/08/2010 7 month(s) and 1 day(s) 1,000 62814/10 13/10/2010 Alena Gennadyevna ISAKOVA 15/07/1973 01/08/2008 to 15/09/2011 3 year(s) and 1 month(s) and 15 day(s) 3,200 34313/11 28/04/2011 Leonid Aleksandrovich KUVAYEV 13/05/1972 15/09/2009 to 29/03/2012 2 year(s) and 6 month(s) and 15 day(s) 2,700 10342/12 30/01/2012 Oleg Yuryevich KOLPAKOV 26/06/1966 18/05/2011 to 09/04/2012 28/08/2012 to 25/12/2013 10 month(s) and 23 day(s) 1 year(s) and 3 month(s) and 28 day(s) 2,300 32166/14 30/03/2014 Veronika Vitalyevna SOPOVA 29/06/1982 16/07/2012 to 10/11/2014 2 year(s) and 3 month(s) and 26 day(s) 2,400 59613/14 05/08/2014 Sergey Olegovich BIBIK 29/12/1986 19/04/2013 to 19/04/2015 2 year(s) and 1 day(s) Art. 5 (4) - excessive length of judicial review of detention - Delayed review of the App.’s appeal against the detention order of 15/01/2014 which was considered on 11/02/2014 Delayed review of the App.’s appeal against the detention order of 12/03/2014 which was considered on 20/05/2014 Delayed review of the App.’s appeal against the detention order of 17/04/2014 which was considered on 18/07/2014 Delayed review of the App.’s appeal against the detention order of 13/10/2014 which was considered on 24/11/2014 Delayed review of the App.’s appeal against the detention order of 15/01/2015 which was considered on 16/02/2015 2,700 [1] Plus any tax that may be chargeable to the applicants.

THIRD SECTION CASE OF ŠVARC AND KAVNIK v. SLOVENIA (Application no. 75617/01) JUDGMENT STRASBOURG 8 February 2007 FINAL 08/05/2007 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 Švarc and Kavnik v. Slovenia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrJ. Hedigan, President,MrB.M. Zupančič,MrV. Zagrebelsky,MrsA. Gyulumyan,MrE. Myjer,MrsI. Ziemele,MrsI. Berro-Lefèvre, judges,and Mr V. Berger, Section Registrar, Having deliberated in private on 18 January 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 75617/01) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Slovenian nationals, Mrs Anita Švarc and Mr Ivan Kavnik (“the applicants”), on 26 July 2000. 2. The applicants were represented by the Verstovšek lawyers, members of the Slovenian Bar. The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič, State Attorney-General. 3. The applicants alleged under Article 6 § 1 of the Convention that they did not have a fair trial by an impartial tribunal because their constitutional complaint was decided by a panel of judges that included a judge who had issued an expert opinion in the proceedings before the first-instance court. They further alleged that the length of the proceedings to which they were a party before the domestic courts had been excessive. In substance, they also complained about the lack of an effective domestic remedy in respect of the excessive length of the proceedings (Article 13 of the Convention). 4. On 11 October 2005 the Court decided to communicate the complaints concerning the length of the proceedings and the lack of remedies in that respect to the Government. Applying Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. Mrs Anita Švarc was born in 1968 and lives in Vuzenica. Ivan Kavnik was born in 1956 and lives in Topolščica. 6. On 30 October 1989 the applicants were injured in a car accident in Austria. The accident resulted in the premature birth of their son, who sustained in utero injuries in the accident. The son died in hospital in Slovenj Gradec (Slovenia) on 28 December 1989. The perpetrator of the accident had taken out insurance with the insurance company Wiener Allianz Versicherungs Aktiengesellschaft (“WA”). 7. On 27 October 1992 the applicants instituted civil proceedings against WA in the then Celje Basic Court, Velenje Branch (Temeljno sodišče v Celju, Enota v Velenju), seeking damages of 3,237,900 Slovenian tolars for the injuries sustained in the car accident and the non-pecuniary damage sustained following the death of their son. On 4 January 1993 Mr Lojze Ude, a professor at the Faculty of Law in Ljubljana, delivered an expert opinion in the case at the request of WA. He stated that the Slovenian courts had no jurisdiction to examine the applicants' claims. At the time, Mrs Dragica Wedam-Lukić was a work colleague of Mr Ude. On 6 January 1993 WA lodged preliminary written submissions arguing that the case was not within the court's jurisdiction. They attached the opinion prepared by Mr Ude to the submissions, which were included in the file and served on the applicants. On 25 May 1993 Mr Ude was appointed as a justice at the Constitutional Court (Ustavno sodišče). On 22 February 1994 the Celje Basic Court, Velenje Branch, held a hearing. On 18 and 25 February 1994 the applicants lodged preliminary written submissions contesting Mr Ude's opinion and WA's arguments. On 22 April 1994 a decision dated 22 February 1994, the date on which the hearing was held, was served on the applicants. The court decided that the case was not within its jurisdiction, but made no explicit reference to Mr Ude's opinion. 8. On 4 May 1994 the applicants lodged an appeal with the Celje Higher Court (Višje sodišče v Celju). On 28 June 1994 the Convention took effect with respect to Slovenia. On 23 August 1994, on a request by the Celje Higher Court, the first-instance court delivered a supplementary decision concerning the costs of the proceedings. On 1 September 1994 the applicants appealed against the decision concerning costs. On 14 December 1994 the Celje Higher Court dismissed both applicants' appeals. 9. On 14 February 1995 the applicants lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče) against the decision of 14 December 1994. On 27 February 1997 the Supreme Court dismissed the appeal on points of law against the judgment of 22 February 1994 and rejected the appeal against the decision of 23 August 1994 as inadmissible. 10. On 22 May 1997 the applicants lodged a constitutional appeal with the Constitutional Court (Ustavno sodišče). In their appeal, they made no reference to Mr Ude's opinion. On 1 April 1998 Mrs Wedam-Lukić was appointed as a justice at the Constitutional Court. On 24 March 2000 the Constitutional Court declared the appeal inadmissible as manifestly ill-founded. Mr Ude was the president of the three-judge bench which examined the admissibility of the case and Mrs Wedam-Lukić was also a member of that bench. The applicants learned of the composition of the panel on 20 April 2000, the date on which the decision was served on them. II. RELEVANT DOMESTIC LAW A. The 1991 Constitution 11. The relevant provision of the Constitution of the Republic of Slovenia (Ustava Republike Slovenije) reads as follows: Article 23 “Everyone has the right to have any decision regarding his or her rights, obligations and any charges brought against him or her made without undue delay by an independent, impartial court constituted by law. Only a judge appointed pursuant to rules pre-established by law and in accordance with normal judicial practices shall try such a person.” B. The Constitutional Court Act 1994 12. The relevant provisions of the Constitutional Court Act (Zakon o ustavnem sodišču) read as follows: Section 31 “In deciding on a particular case, the Constitutional Court may disqualify a judge of the Constitutional Court by applying, mutatis mutandis, the applicable reasons for disqualification in court proceedings. The following shall not serve as reasons for disqualification from the proceedings: - participation in legislative procedures or in adoption of other general acts (including those issued for exercise of public powers) that have been challenged prior to election as a judge of the Constitutional Court, - expressing a scientific opinion on a legal matter which may be relevant for the proceedings.” Section 32 “Immediately after a judge of the Constitutional Court learns of any reasons for his or her disqualification in accordance with the preceding section, he or she must cease ... work on the case and notify the president of the Constitutional Court.” Section 33 “A request for disqualification may be submitted by the parties to the proceedings up until the start of a public hearing, if such hearing is due to be held, or until the beginning of the in camera session of the Constitutional Court at which the matter is to be decided. The request must be substantiated. The judge of the Constitutional Court whose disqualification is sought shall have the right to comment on the statements in the request, but may not participate in the decision on his or her disqualification. The Constitutional Court shall decide in camera upon the disqualification of a judge. If the number of votes for and against is equal, the president shall have the casting vote.” Section 50 “Anyone who believes that his or her human rights and basic freedoms have been infringed by a particular act of a state body, local body or statutory authority may lodge a constitutional appeal with the Constitutional Court, subject to compliance with the conditions laid down by this Act. ...” Section 51 “A constitutional appeal may be lodged only after all legal remedies have been exhausted. Before all special legal remedies have been exhausted, the Constitutional Court may exceptionally hear a constitutional appeal if a violation is probable and the appellant will suffer irreparable consequences as a result of a particular act.” Section 54 “A decision on whether to accept a constitutional complaint and begin proceedings shall be taken by the Constitutional Court, sitting in a three-judge bench, at an in camera session...” C. The Civil Procedure Act 1999 13. The relevant provisions of the Civil Procedure Act (Zakon o pravdnem postopku) read as follows: Section 70 “A judge or a lay judge shall be prohibited from exercising judicial functions: (1) if he or she is a party to the civil proceedings, is a representative or an advocate of a party... or was heard as a witness or an expert in the same proceedings... (5) if he or she participated in the same proceedings before a lower court... (6) if other circumstances raise doubt about his or her impartiality.” Section 72 “The parties to the proceedings may also seek the disqualification of a judge. A party must seek the disqualification of a judge or a lay judge as soon as he or she learns of the reason for disqualification, but no later than by the end of the hearing in the competent court or, when no hearing was held, by the time the decision is rendered. In the disqualification request, the party must state the circumstances on which his or her request for disqualification is based.” Section 74 “As soon as a judge or a lay judge learns of the request for his or her disqualification, he or she must cease any activity in the proceedings concerned; if the challenged is lodged under point 6 of section 70, he or she may continue examination of the case. If a judge is disqualified in accordance with point 6 of section 70 of this Act, the procedural activities he or she performed after the request for disqualification was lodged shall have no legal effect. ” THE LAW I. THE GOVERNMENT'S PRELIMINARY OBJECTION 14. The Government claimed that the application had been lodged out of the prescribed six months time-limit. They submitted that the impugned proceedings had actually ended on 20 March 1997, the date on which the Supreme Court's decision had been served on the applicants. In their view, that had been the last ordinary legal remedy available to the applicants. The present application was lodged after 20 September 1997, the date on which the deadline for submitting the application had expired. 15. The Court points out that, in several cases against Slovenia, the Government have argued that a constitutional appeal to the Constitutional Court is an effective legal remedy. In the present case also, the Government argued that the applicants should have availed themselves of this remedy with regard to their complaints concerning the excessive length of proceedings (see paragraph 19 below). It further recalls that it has dismissed complaints which applicants failed to raise in due form and substance in proceedings before the Constitutional Court. (see, for example, Tričković v. Slovenia, no. 39914/98, Commission decision of 27 May 1998). In addition, the constitutional appeal was considered an ineffective remedy only in the context of length-of-proceedings complaints (see Belinger v. Slovenia (dec.), no. 42320/98, 2 October 2001; and Lukenda v. Slovenia, no. 23032/02, 6 October 2005). 16. The Court does not see any reason to depart from its established case-law. In the present case, the applicants lodged a constitutional appeal challenging the constitutionality of the lower courts' decisions, which was declared inadmissible on 24 March 2000 and served on the applicants on 20 April 2000. They lodged their application with the Court on 20 July 2000, which is well within the prescribed six-month time-limit. The Court therefore dismisses the Government's preliminary objection. II. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION 17. The applicants complained that the bench of the Constitutional Court which decided on the admissibility of their constitutional appeal was biased because Mr Ude and Mrs Dragica Wedam-Lukić were sitting on it. They further alleged that the proceedings to which they were a party were excessively long. They relied on Article 6 § 1 of the Convention, which provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [an] ... impartial tribunal...” 18. In substance, the applicants further complained that the remedies available in respect of excessive legal proceedings in Slovenia were ineffective. Article 13 of the Convention reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 1. As to the length of the proceedings 19. The Government maintained that the domestic remedies had not been exhausted. They submitted, inter alia, that, under the Constitutional Court Act 1994, any person may lodge a constitutional complaint alleging a breach of his or her human rights. 20. The applicants contested that argument, claiming that the remedies available were not effective. 21. The Court notes that the present application is similar to the cases of Belinger and Lukenda (see Belinger v. Slovenia (dec.), cited above; and Lukenda v. Slovenia, cited above). In those cases the Court dismissed the Government's objection of non-exhaustion of domestic remedies, finding that the legal remedies at the applicants' disposal were ineffective. 22. The Court finds that the Government have not submitted any convincing arguments in the instant case which would require the Court to distinguish it from its established case-law. 23. The Court further notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible. 2. As to the impartiality 24. The Government maintained that the domestic remedies had not been exhausted. They claimed that the applicants neither referred in their constitutional appeal to the fact that Mr Ude's expert opinion was submitted to the first-instance court, nor did they attach that opinion to their appeal. Although the composition of the Constitutional Court had been known to the public, and therefore also to the applicants, they had never sought Mr Ude's withdrawal. Their concern about possible bias on the part of the said justice was raised for the first time in their application to the Court. Since they had failed to challenge Mr Ude in accordance with the applicable domestic provisions, this complaint should be declared inadmissible. Further on in their observations, however, the Government argued that Mr Ude's opinion was merely a scientific opinion in the case. They alleged that, according to section 31 of the Constitutional Court Act 1994, such an opinion was not a reason for a judge to step down. 25. The applicants made no reply. 26. The Court recalls that, in accordance with Article 35 of the Convention, it is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation, unless all domestic remedies have been exhausted according to the generally recognised rules of international law (see, for example, Tričković, cited above). It falls to a Government pleading non-exhaustion to prove that the remedy in question was available to the applicant in theory and in practice at the material time. Once this burden of proof has been discharged, it is incumbent on the applicant to establish that the remedy relied on by the Government was in fact exhausted or was inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from the requirement (see Lukenda, cited above, §§ 43 and 44). Furthermore, the applicant is generally required to raise in substance and in due form in the domestic proceedings the complaints addressed to the Court, including the procedural means that might have prevented a breach of the Convention (see Barberà, Messegué and Jabardo v. Spain, judgment of 6 December 1988, Series A no. 146, § 59). 27. In the present case, the Court notes that the applicants neither challenged the impugned judge in their constitutional appeal nor called the Constitutional Court's attention to Mr Ude's prior role in the proceedings. Even though the applicants did not know which of the Constitutional Court's judges would examine the admissibility of their complaints, they could have sought in their constitutional appeal that Mr Ude be excluded from reviewing their appeal, in accordance with the relevant domestic legislation. In this much, the Court allows the Government's arguments. However, the Court observes that the Government have also submitted that, in application of section 31 § 2 of the Constitutional Court Act 1994, it would have been futile to seek Mr Ude's withdrawal on the ground that he had delivered an opinion in this particular case when it was pending before the first-instance court. In the absence of any argument or case-law that would prove the opposite, the Court accepts this line of reasoning. In such circumstances, it is the Court's opinion that the Government have not shown that, in the circumstances of this case, seeking Mr Ude's withdrawal, was a remedy which the applicants were requested to exhaust for the purposes of Article 35 § 1 of the Convention. The Government did not allege that the applicants should have availed themselves of any other remedies. Consequently, the objection of non-exhaustion must be rejected. 28. The Court further notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. As to the length of the proceedings (a) Article 6 § 1 29. In determining the relevant period to be taken into consideration, the Court notes that the proceedings in issue began prior to 28 June 1994, the date on which the Convention took effect with respect to Slovenia. Given its jurisdiction ratione temporis, the Court can only consider the period which have elapsed since that date, although it will have regard to the stage reached in the proceedings in the domestic courts on it (see, for instance, Belinger, cited above, and Kudła v. Poland [GC], no. 30210/96, § 123, ECHR 2000-XI). The period to be taken into consideration thus began on 28 June 1994, the date on which the Convention entered into force with respect to Slovenia, and ended on 20 April 2000, the day the Constitutional Court's decision was served on the applicants. It therefore lasted nearly five years and ten months for three levels of jurisdiction. 30. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 31. The Court considers that the impugned proceedings were of importance to the applicants and were of no particular complexity. No hearings were held during the relevant period, no additional facts sought, no experts appointed, and no additional evidence taken. The applicants did not contribute to the length of the proceedings. The fact that they availed themselves of domestic legal remedies was not tantamount to a breach of their procedural rights and did not make the proceedings more intricate. In the present case, the entire relevant period is imputable to the State. 32. Having examined all the material submitted to it, and having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable-time” requirement. There has accordingly been a breach of Article 6 § 1. (b) Article 13 33. The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła, cited above, § 156). It notes that the objections and arguments put forward by the Government have been rejected in earlier cases (see Lukenda, cited above) and sees no reason to reach a different conclusion in the present case. 34. Accordingly, the Court considers that in the present case there has been a violation of Article 13 on account of the lack of a remedy under domestic law whereby the applicants could have obtained a ruling upholding their right to have their case heard within a reasonable time, as enshrined in Article 6 § 1. 2. As to the impartiality 35. The applicants alleged that the panel of three judges of the Constitutional Court which declared their constitutional appeal inadmissible was biased, in that it had been presided over by Mr Ude and Mrs Wedam-Lukić was a member of it. 36. The Government first emphasised the distinction of the two roles played by Mr Ude in the impugned proceedings. Before the first-instance court, he delivered a scientific opinion, widely accepted in legal theory, on the jurisdiction of the Slovenian courts. As a justice of the Constitutional Court, he was deciding on the admissibility of the applicants' complaints under Article 22 of the Constitution, which guarantees equal protection of rights. The relevant Constitutional Court decision did not concern the merits of the applicants' complaints, nor did it refer to Mr Ude's scientific opinion. In any event, the applicants did not submit the said opinion with their constitutional appeal, nor did any of the decisions by the lower courts refer to it. Moreover, Mr Ude's expert opinion concerned questions that were not the focus of the domestic courts. The Government have referred to the Court's findings in the case of Delange and Magistrello v. France and claimed that the mere fact that a judge actively participated in the preliminary proceedings to which the applicant was a party and had detailed knowledge of the facts of the case was not sufficient to raise any doubts as to his impartiality when he was presiding over the case later on in the proceedings (see Delage and Magistrello v. France (dec.), no. 40028/98, ECHR 2002‑III). They further emphasised the distinction between the present case and that of Pescador Valero v. Spain, because Mr Ude had not been in a close relationship with the applicants' adversary (see Pescador Valero v. Spain, no. 62435/00, ECHR 2003‑VII). 37. According to the Court's constant case-law, when the impartiality of a tribunal for the purposes of Article 6 § 1 is being determined, regard must be had to the personal conviction and behaviour of a particular judge in a given case – the subjective approach – as well as to whether it afforded sufficient guarantees to exclude any legitimate doubt in this respect – the objective approach (see Kyprianou v. Cyprus [GC], no. 73797/01, § 18, ECHR 2005‑...; Thomann v. Switzerland, judgment of 10 June 1996, Reports of Judgments and Decisions 1996-III, p. 815, § 30; and Predojević, Prokopović, Prijović, and Martinović v. Slovenia (dec.), nos. 43445/98, 49740/99, 49747/99, 54217/00, 9 December 2004). 38. Firstly, as to the subjective test, the tribunal must be subjectively free of personal prejudice or bias. In this respect, the personal impartiality of a judge must be presumed until there is proof to the contrary (see, among other authorities, Padovani v. Italy, judgment of 26 February 1993, Series A no. 257-B, p. 20, § 26, and Morel v. France, no. 34130/96, § 41, ECHR 2000-VI). In the present case, in the absence of any evidence to the contrary, there is no reason to doubt Mr Ude's personal impartiality. 39. Secondly, under the objective test, it must be determined whether, quite apart from the judge's personal conduct, there are ascertainable facts which may raise doubts as to his impartiality, since “justice must not only be done; it must also be seen to be done”. In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public (see Morris v. the United Kingdom, no. 38784/97, § 58, ECHR 2002-I). Accordingly, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw. This implies that in deciding whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of the party concerned is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see, among many other authorities, Pescador Valero v. Spain, cited above, § 23). 40. When determining the objective justification of the applicant's fear, such factors as the judge's dual role in the proceedings, the time which elapsed between the two participations, and the extent to which the judge was involved in the proceedings may be taken into consideration (see, for example, Walston v. Norway, no. 37372/97, 3 June 2003; Wettstein v. Switzerland, no. 33958/96, ECHR 2000‑XII; and McGonnell v. the United Kingdom, no. 28488/95, ECHR 2000‑II). 41. In this regard, the Court notes that the applicants did not challenge any member of the Constitutional Court at the time they lodged a constitutional appeal, nor did they attach Mr Ude's opinion to the said appeal or refer to it therein. The Court acknowledges that well over four years and four months elapsed between the date on which Mr Ude delivered the opinion and the date on which the applicants lodged a constitutional appeal. An additional two years and ten months passed before the Constitutional Court delivered a decision on the admissibility of the applicants' appeal. There is no indication in the observations made by the parties that Mr Ude was either reminded of his prior involvement in this particular case or that his opinion was included in the case file before the Constitutional Court. The Court observes, in general, that there is a risk of problems arising in a system which lacks safeguards to ensure that judges are reminded of their prior involvement in particular cases, above all where such matters rely on the judges' own assessment, which may, inevitably, suffer from a lack of recollection of a particular instance of prior involvement (see Puolitaival and Pirttiaho v. Finland, no. 54857/00, § 44, 23 November 2004). However, the Court refers to its findings with regard to the Government's preliminary objections (see paragraph 27 above) and will not expand further on this subject, because its role in the proceedings at hand is confined to the question of whether the applicant's fears about Mr Ude's and Mrs Wedam-Lukić's impartiality were legitimate, given the relations between the two judges and the other party to the proceedings, and whether these relations cast doubt on the judges' objective impartiality. 42. To this end, the Court observes that, at WA's request, Mr Ude delivered an opinion on whether the Slovenian courts had jurisdiction to examine the applicants' claims in the impugned proceedings. This opinion was served on the applicants, who objected to it in their submissions to the first-instance court, and was included in the case file. The outcome of the proceedings was in line with Mr Ude's opinion, although the court's decision made no reference to it. When the applicants received the decision of the Constitutional Court, they were informed that Mr Ude had been the president of the bench and that Mrs Wedam-Lukić also sat on the bench. 43. As to Mrs Wedam-Lukić's alleged partiality, the Court considers that the applicants' fear has no legitimate ground. She had been a colleague of Mr Ude at the Faculty of Law in Ljubljana when the latter delivered his opinion in the applicants' case. She was not directly involved in the impugned proceedings prior to sitting on the Constitutional Court's bench, and the applicants' assertions that she might have had previous knowledge of the case solely by virtue of working in close proximity to Mr Ude at the material time is too vague to procure any objective doubt of her impartiality. 44. On the contrary, Mr Ude did have a detailed knowledge of the facts of the case and had been retained by the applicant's adversaries in the proceedings before the first-instance court, essentially as a professional expert. His role as a justice of the Constitutional Court was, admittedly, quite different, and was limited to determination of the admissibility of the applicants' complaints made under the Constitution. Nonetheless, the Court finds that due to his previous involvement in the proceedings, the impartiality of the “tribunal” was open to doubt, not only in the eyes of the applicants but also objectively. There has accordingly been a violation of Article 6 § 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 45. 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 46. Mrs Švarc claimed 43,500 euros (EUR) and Mr Kavnik EUR 16,000 in respect of the non-pecuniary damage sustained on account of the unduly long proceedings. They made no claim with regard to their complaints concerning the partiality of the Constitutional Court. 47. The Government contested the claim. 48. The Court considers that the applicants must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards each of the applicants EUR 1,000 under that head. B. Costs and expenses 49. The applicants also claimed approximately EUR 2,200 for the costs and expenses incurred before the Court. 50. The Government argued that the claim was too high. 51. According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. 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 applicants the sum of EUR 1,000 for the proceedings before the Court. C. Default interest 52. 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 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention as regards the impartiality of the Constitutional Court; 3. Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the length of proceedings; 4. Holds that there has been a violation of Article 13 of the Convention; 5. Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros) each in respect of non-pecuniary damage and EUR 1,000 (one thousand euros) jointly in respect of costs and expenses, plus any tax that may be chargeable; (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; 6. Dismisses the remainder of the applicants' claims for just satisfaction. Done in English, and notified in writing on 8 February 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Vincent BergerJohn HediganRegistrarPresident

FIRST SECTION CASE OF AVKHADOVA AND OTHERS v. RUSSIA (Application no. 47215/07) JUDGMENT STRASBOURG 14 March 2013 FINAL 09/09/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Avkhadova and Others v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Isabelle Berro-Lefèvre, President,Mirjana Lazarova Trajkovska,Julia Laffranque,Linos-Alexandre Sicilianos,Erik Møse,Ksenija Turković,Dmitry Dedov, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 19 February 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 47215/07) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by five Russian nationals, listed in paragraph 5 below (“the applicants”), on 15 February 2007. 2. The applicants were represented by lawyers of European Human Rights Advocacy Centre/Memorial. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights. 3. On 25 June 2009 the President of the First Section decided to apply Rule 41 of the Rules of Court, to grant priority to the application and to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (former Article 29 § 1). 4. The Government objected to the joint examination of the admissibility and merits of the application and to the application of Rule 41 of the Rules of Court. Having considered the Government’s objection, the Court dismissed it. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicants are: 1. Mrs Nurzhan Avkhadova, born in 1956; 2. Mrs Limon Avkhadova, born in 1984; 3. Mrs Luisa Avkhadova, born in 1986; 4. Mrs Khava Avkhadova, born in 1991 and 5. Mrs Kheda Avkhadova, born in 1992. 6. The first applicant is the mother of Mr Vakhit Avkhadov, born in 1979. The second to fifth applicants are Vakhit Avkhadov’s sisters. The applicants reside in the town of Urus-Martan, the Chechen Republic. A. Disappearance of Vakhit Avkhadov 1. The applicants’ account 7. The account of the events below is based on the information contained in the application form; the first applicant’s written statement made on 4 June 2007; a written statement of 5 June 2005 by R.A., the first applicant’s daughter, who is not an applicant in the present case; a written statement by the applicants’ neighbour, S.M., made on 8 June 2007; and a written statement by M.A., a resident of Urus-Martan, made on 4 December 2009. 8. On 24 April 2001 the first applicant, Vakhit Avkhadov and R.A. were at home, at 104 (subsequently re-numbered as 112) Sovetskaya Street in Urus-Martan. 9. At about 6 a.m. on 24 April 2001 the first applicant was woken up by a noise coming from outside. Through a window she saw several armed men climb over the fence and into the courtyard. She ran to the room where Vakhit Avkhadov was sleeping and alerted him about the intrusion. She then rushed downstairs to the front door, through which several armed men were already entering the house. Two of them guarded the front door while two others immediately started searching the house. All of the intruders were wearing new camouflage uniforms and were armed with submachine guns. While the first applicant was by the front door, she noticed behind the fence two armoured personnel carriers (hereinafter also “APC”) surrounded by numerous armed men wearing green camouflage uniforms. Unlike the uniforms of the men who had burst into the house, the uniforms of those beside the APCs were very dirty. 10. The armed intruders neither identified themselves nor explained the reasons for their intrusion. One of them asked the first applicant who was at home. She tried to ask him who they were looking for but by that time two intruders had already spotted Vakhit Avkhadov. One of them, a tall man, pointed his gun at Vakhit Avkhadov and ordered him in Russian to put his arms behind his neck and get out of his room. Vakhit Avkhadov was taken to the hallway and ordered to kneel. When the tall intruder raised his leg to kick Vakhit Avkhadov, the first applicant shouted at him, asking him why he was doing that to her son, but was ordered to be silent. At the same moment R.A. ran from her room and tried to approach Vakhit Avkhadov, but one of the men threatened her with his gun and made her return to her room. 11. The intruders then took Vakhit Avkhadov into the courtyard and placed him face-down on the ground. He was wearing only his underwear so the first applicant brought some of his clothes outside, in particular, a red T-shirt, a warm sports jacket with a white stripe on a sleeve and a black raincoat. She asked the intruders to allow her son to get dressed. One of them agreed, urging Vakhit Avkhadov to do so quickly, and even passed him a pair of shoes which had been by the front door. 12. Shortly thereafter the armed men who were searching the house went outside and asked the first applicant for Vakhit Avkhadov’s identity papers. She started crying and begged them not to take him away. She asked them at least to explain why they were arresting him. Vakhit Avkhadov asked her to calm down and to comply with the order. He explained to her where he kept his temporary identity card and she brought it outside and handed it over to one of the armed men. 13. The intruders then covered Vakhit Avkhadov’s head with his raincoat and led him outside the courtyard. The first applicant and R.A. followed them outside, where they saw three APCs and two UAZ all-terrain vehicles, and numerous armed men in camouflage uniforms and masks. All of the vehicles’ registration plates had been obscured with mud. The intruders put Vakhit Avkhadov in an APC and then the convoy of two APCs, two UAZ vehicles and a third APC drove off towards the centre of Urus-Martan. 14. According to M.A., at about 5.30 a.m. on 24 April 2001 a group of armed servicemen driving an APC broke the gate to the courtyard of her family house with their APC. Immediately after that the servicemen burst into her house, handcuffed her son L.-A.A., seized his identity papers and placed him in one of their two APCs, both parked at the house. The convoy of APCs then took Bolnichnaya street and turned into Sovetskaya street, where the applicants resided. 2. The Government’s account 15. The Government submitted that the domestic investigation had obtained no evidence that Vakhit Avkhadov had been abducted by State agents. B. The search for Vakhit Avkhadov and the related investigation 1. The applicants’ account (a) The applicants’ search for Vakhit Avkhadov 16. On 24 April 2001, immediately after the departure of the armed men with Vakhit Avkhadov, the first applicant’s neighbours came to her house. The first applicant and one of her neighbours rushed to the centre of Urus‑Martan. On the way, the women allegedly met Mrs K., who told them that her son had also been abducted by Russian servicemen in several APCs and that her husband, Mr K., would wait for her in the town centre in order to search for their abducted son. The first applicant decided to follow Mrs K. to the centre. 17. When the women reached the centre of Urus-Martan, Mr K. was already waiting for them. They set off in his minibus, following the mud tracks left on the road by the APCs. The tracks led in the direction of the village of Tangi-Chu. Furthermore, residents of Urus-Martan whom the first applicant and her fellow travellers met on the way indicated to them the direction taken by the APCs. In that manner the first applicant and Mr and Mrs K. reached the grounds of the Western Zone Alignment of the armed forces (группировка «Запад»), who were stationed at the material time to the south-west of Urus-Martan. The first applicant and her fellow travellers did not catch up with the APCs but clearly saw fresh tracks made by them at the entrance to the military grounds. They then attempted to question the servicemen present about those APCs but did not succeed in getting any information. At the same time local residents allegedly told the first applicant that the APCs had been “working hard” on the two previous nights, bringing to the military grounds young men of Chechen ethnic origin. It appears that the first applicant then returned home. 18. According to the first applicant, several young men had been apprehended in Urus-Martan on 24 April 2001, including Mr L.‑A.A., the son of M.A. and the then head of the Urus-Martan town administration, and also Mr G., a son of the person who subsequently held that post. 19. On the same date, the first applicant contacted, both orally and in writing, the local Department of the Interior, the prosecutor’s office, the office of the military commander and the local administration, complaining about the abduction of Vakhit Avkhadov. 20. According to the first applicant, on 26 April 2001 an elderly man who had identified himself as “Ali” had come to her house. Ali allegedly told her that on 24 April 2001 he had been apprehended by Russian servicemen together with Vakhit Avkhadov and several other men from Urus‑Martan. They had all been taken to the grounds of the Western Zone Alignment of the armed forces and placed in pits. Two to three hours later the servicemen had taken Vakhit Avkhadov and L.-A.A. out of the pit and led them away, following which Ali had heard the sound of a helicopter. On the same day Ali, Mr G. and the son of Mr and Mrs K. had been released. 21. On the following days the first applicant visited Mr and Mrs K. and asked them to testify about the events of 24 April 2001. However, they refused to do so because they feared for their lives. They told the first applicant that they had sent their son outside the Chechen Republic, also fearing for his life. 22. On an unspecified date the first applicant met with members of the A. family, whose son had also been apprehended on 24 April 2001, and they agreed to join together in their search efforts. 23. On an unspecified date in June 2001 the first applicant and the A. family allegedly managed to talk to a serviceman from the Western Zone Alignment. He allegedly confirmed that Vakhit Avkhadov and L.-A.A. had been brought to the grounds of the Western Zone Alignment and placed in pits. He did not know their names but described their appearance. In particular, he said that L.-A.A had had grey hair and had been wearing a red T‑shirt, which details were confirmed by the A. family. The serviceman also stated that at 9 a.m. on 24 April 2001 two persons, one of them tall and the other short and stout, had been taken away in a helicopter. According to the first applicant, the description of the second person corresponded to that of her son because he was 165 cm tall and corpulent. Moreover, the description of the “tall man” corresponded to L.-A.A. Lastly, the serviceman allegedly also described the appearance of those who had been released on 24 April 2001 (Ali, Mr G. and the son of Mr and Mrs K). In the submission of M.A., on 24 April 2001 and on several following days when she and her husband had applied to the Urus-Martan military commander’s office, the Western Zone Alignment and the local administration, the serviceman had confirmed that her son L.-A.A. had been arrested and had even told her that they had given him clothing because he had been arrested in a T-shirt and jeans and without shoes. 24. According to the first applicant, despite her immediate complaints to various authorities about the abduction of Vakhit Avkhadov, investigators did not call at her home until two months after the events of 24 April 2001 (see below). The investigators questioned the first applicant, inspected her house and left. 25. The applicants have had no news of Vakhit Avkhadov since his apprehension on 24 April 2001. (b) Investigation into the abduction of Vakhit Avkhadov 26. On 7 May 2001 the first applicant submitted a further complaint about her son’s abduction. On that occasion she lodged the complaint with the Urus-Martanovskiy District Court. In her complaint she submitted that she had previously applied to various authorities concerning her son’s disappearance but had received no responses. There is no indication that her complaint was ever answered. 27. On 28 July 2001 the prosecutor’s office of the Chechen Republic (hereinafter also “the republican prosecutor’s office”) forwarded a complaint lodged by the first applicant (the date of the complaint was not indicated) about the abduction of Vakhit Avkhadov to the prosecutors’ office of the Urus-Martanovskiy District (“the district prosecutor’s office”). The latter forwarded the complaint to the Urus-Martanovskiy Temporary Department of the Interior (hereinafter also “the VOVD”), instructing it to verify the first applicant’s submissions and, should they be confirmed, to open a criminal investigation, take the basic investigative measures and return the case to the district prosecutor’s office. 28. On 19 February 2002 the district prosecutor’s office notified the first applicant that on 16 August 2001 it had opened a criminal investigation into the abduction of Vakhit Avkhadov under Article 126 § 2 of the Criminal Code (aggravated abduction). The case file had been assigned the number 25350. The investigation appears to have been suspended between 16 August 2001 and 19 February 2002 as the letter also stated that the investigation had been resumed, but did not specify the relevant date. 29. On 20 May 2002 the first applicant complained to the military commander of the Urus-Martanovskiy District that at 5.45 a.m. on 24 October 2001 about 20 servicemen in masks and camouflage uniforms had come to her house in two APCs the number plates of which had been obscured with mud, had burst into the house and taken away Vakhit Avkhadov. She further submitted that she had followed the intruders to the village of Tangi-Chu, where the servicemen had been holding her son and from where he had been taken in a helicopter to Khankala. The first applicant submitted that she had not seen her son since, and requested assistance in establishing his whereabouts. On 29 and 31 May 2001 the first applicant addressed letters along the same lines to the head of the VOVD and the head of the administration of the Chechen Republic, Mr A. Kadyrov. 30. On 16 July 2002 the South Federal Circuit Department of the Prosecutor General’s Office forwarded a further complaint lodged by the first applicant about the abduction of Vakhit Avkhadov to the republican prosecutor’s office for examination. 31. On 23 July 2002 the office of the head of the administration of the Chechen Republic replied to the first applicant that they were supervising the search for Vakhit Avkhadov and had forwarded her complaint to the law-enforcement officials in charge of it. 32. On 24 July 2002 the republican prosecutor’s office forwarded the first applicant’s complaint about the abduction of Vakhit Avkhadov to the district prosecutor’s office and instructed the latter to verify the submissions contained therein and to append the complaint to the case file. 33. On 13 August 2002 the first applicant wrote to the district prosecutor’s office, asking to be granted victim status in connection with the proceedings in case no. 25350. She does not appear to have received a reply to her request. 34. On 16 August 2002 the Chief Military Prosecutor’s office transferred a further complaint lodged by the first applicant about the abduction of Vakhit Avkhadov to the military prosecutor of the North Caucasus Military Circuit for examination. The latter forwarded the complaint to the republican prosecutor’s office, which, in its turn, transferred it to the district prosecutor’s office. 35. On 6 September 2002 the Chief Military Prosecutor’s office forwarded yet another complaint lodged by the first applicant about the abduction of her son to the military prosecutor of military unit no. 20102 for examination. 36. On 17 October 2002 the military commander’s office of the Chechen Republic replied to the first applicant that they had no information on the apprehension or whereabouts of Vakhit Avkhadov. 37. On 26 December 2002 the Commission on Human Rights with the President of the Russian Federation transferred a complaint lodged by the first applicant about the abduction of Vakhit Avkhadov to the South Federal Circuit Department of the Prosecutor General’s Office. The latter notified the first applicant by a letter of 10 January 2003 that it had forwarded the complaint to the republican prosecutor’s office for examination. 38. On 16 May 2003 the Chief Military Prosecutor’s office forwarded complaints lodged by the first applicant on 8 and 12 April 2003 to the military prosecutor of the United Group Alignment (“the UGA”) for examination. 39. On 9 June 2003 the republican prosecutor’s office transferred the first applicant’s complaint about the abduction of her son to the district prosecutor’s office. The latter authority was instructed to verify the circumstances of Vakhit Avkhadov’s disappearance and, in the event that servicemen of the federal armed forces were implicated in the abduction, to refer the case to a military prosecutor’s office for investigation. The district prosecutor’s office was also requested to provide the republican prosecutor’s office with detailed information on the investigation results and, if the investigation had been suspended, to report on the justification for any such decision. Lastly, the district prosecutor’s office was instructed to apprise the first applicant of the results of the investigation and the measures taken to establish the whereabouts of Vakhit Avkhadov and to identify those responsible. A copy of the letter was forwarded to the first applicant. 40. On 17 June 2003 the military prosecutor’s office of military unit no. 20102 replied to the first applicant that her complaint had contained no information on the possible involvement of servicemen of the federal forces in the abduction of Vakhit Avkhadov. 41. In a letter dated 15 August 2003 the military prosecutor’s office of military unit no. 20102 notified the first applicant, in reply to her complaint, that they had made enquiries with the “security forces” (силовые структуры) of the Urus-Martanovskiy District about special operations carried out on 24 April 2001. According to the replies received and the reports on the special operations compiled by representatives of the federal forces and the head of the local administration, Vakhit Avkhadov had not been arrested in the course of those special operations. Having found no evidence of the implication of servicemen of the federal forces in the abduction of the first applicant’s son, the military prosecutor’s office forwarded the first applicant’s complaint to the district prosecutor’s office for examination. 42. Subsequently, the applicants systematically contacted the district prosecutor’s office. Its officials allegedly asked them not to apply to them in writing, since compiling formal replies to their queries would take time that could be used for the investigation of the case. The applicants followed their instruction. 43. On 13 June 2006 the first applicant complained to the district prosecutor’s office about the procrastination in the investigation into the abduction of Vakhit Avkhadov, the lack of any information on its progress and the absence of any tangible results. She asked to be granted victim status in connection with the proceedings in case no. 25350 and also sought access to the case file and the resumption of the investigation in the event that it had been suspended. 44. In reply, on 15 June 2006 the district prosecutor’s office notified the first applicant that on an unspecified date the investigation had been resumed and that operational and search measures aimed at establishing the whereabouts of Vakhit Avkhadov and identifying those responsible were under way. The first applicant was summoned to the district prosecutor’s office on 19 June 2006. 45. On 19 June 2006 the first applicant was granted victim status in connection with the proceedings in case no. 25350. She was notified of the decision on the same day. 46. On 8 June 2007 the first applicant applied to the district prosecutor’s office, seeking access to case file no. 25350. There is no indication that she received a reply to her request. 2. Information submitted by the Government 47. Despite specific requests by the Court, the Government refused to disclose most of the contents of criminal case no. 25350, referring to Article 161 of the Russian Code of Criminal Procedure. They only provided copies of: several decisions to open, suspend and resume the investigation; records of several witness interviews; requests for information addressed to various State authorities and some of the replies to them. Some of the documents submitted by the Government were illegible and others were only partially legible. In so far as the documents submitted by the Government were legible, the information they contained may be summarised as follows. (a) Opening of the investigation and transfer of the case file between various authorities 48. On 25 May 2001 the first applicant complained to the Chechen ombudsman about the abduction of her son. 49. On 1 August 2001 the acting prosecutor of the Urus-Martanovskiy District forwarded the first applicant’s complaint about her son’s abduction to the Urus-Martanovskiy VOVD and instructed the latter authority to immediately open a criminal investigation, take the basic investigative steps and return the opened case file to the district prosecutor’s office, should the first applicant’s submissions be confirmed. It follows from the stamp on the document that it was received by the VOVD on 5 August 2001. It is unclear from the document of 1 August 2001 which of the applicant’s complaints was forwarded to the VOVD, to which authority it was addressed and how it was dated. 50. On 16 August 2001 the Urus-Martanovskiy VOVD instituted criminal proceedings concerning Vakhit Avkhadov’s abduction. The decision stated that at about 5 a.m. on 24 April 2001 he had been taken away from his home at 112 Sovetskaya street in Urus-Martan by unidentified persons in camouflage uniforms and that his whereabouts remained unknown. 51. By a decision of 11 September 2001 the VOVD transferred criminal case no. 25350 to the district prosecutor’s office for further investigation. (b) Interviewing of witnesses 52. On 5 August (or September) 2001 (the date is partly illegible) a police officer of the Urus-Martanovskiy Department of the Interior took a written statement from the first applicant (объяснение). According to the statement, at about 6 a.m. on 24 April 2001 a group of armed camouflaged men had burst into her house and taken away her son, Vakhit Avkhadov, holding the first applicant and her daughters at gunpoint. The first applicant had followed the abductors’ APC in the direction of Tangi-Chu. 53. According to statements by Z.B. and Sh.S., given on 6 and 8 August 2001, they had learnt from Vakhit Avkhadov’s relatives that the latter had been abducted from his house by men in camouflage uniforms. From the relevant documents it does not appear that either Z.B. or Sh.S. resided in the same street as the applicants. 54. By a decision of 16 August 2001 the first applicant was granted victim status in the proceedings concerning her son’s abduction. The text of the decision did not mention whether she had been notified of that and if so, when, and did not contain her signature to that effect. 55. According to the record of an interview of the first applicant of 16 August 2001, at about 5 a.m. on 24 April 2001 a group of armed men in camouflage uniforms and masks had broken into the courtyard of her house by climbing over the fence. Five armed men had entered the house and taken away her son, who had been wearing a red T-shirt and a sports jacket with a white stripe on a sleeve. The intruders had spoken Russian and when they had taken her son outside they had put a raincoat over his head. The first applicant had noticed two APCs with number plates obscured with mud, and several more servicemen outside the courtyard. The two APCs went off in the direction of the village of Tangi-Chu. After the abduction the first applicant had immediately gone to the military commander’s office and had also contacted the prosecutor’s office. However, she had had no news of her son. 56. According to the Government, Mr N.S., interviewed as a witness on 17 August 2001, had stated that Vakhit Avkhadov had been his friend and that he had learnt about his abduction on 24 April 2001 from his mother. On that day six men had been abducted from Urus-Maran. Four had returned home, but Vakhit Avkhadov and L.-A.A. had not. A copy of the relevant interview record was not submitted by the Government. 57. T.Yu., interviewed as a witness on 18 August 2001, stated that the first applicant was his sister and that on 26 April 2001 she had visited him in Grozny and told him about the abduction of her son on 24 April 2001 by armed camouflaged men in two APCs. T.Yu. had subsequently assisted her in the search for Vakhit Avkhadov, during which they had learnt that on 24 April 2001 six men had been abducted from Urus-Martan, including Vakhit Avkhadov and L.-A.A. Four of them had subsequently been released. 58. According to the interview records of N.S. and A.B., both residents of Urus-Martan, dated 18 August 2001, they had learnt about Vakhit Avkhadov’s abduction from his relatives. From the relevant interview records it transpires that neither N.S. nor A.B. resided in the same street as the applicants. 59. According to the Government, on 19 June 2006 the first applicant was again granted victim status (повторно признана потерпевшей). The record of her interview of the same date shows that she confirmed her earlier submissions to the investigation concerning the circumstances of her son’s abduction: at about 6 a.m. on 24 April 2001 he had been taken away by armed camouflaged men in two APCs, which had left in the direction of Tangi‑Chu. Another resident of Urus-Martan, L.-A.A., had been abducted on the same day. (c) Further investigative steps 60. On 19 August 2001 the VOVD requested the Urus-Martan military commander’s office and the Chernokozovo remand prison to inform it whether Vakhit Avkhadov had been arrested by, or detained on the premises of, those authorities. 61. On an unspecified date in August 2001 the military commander’s office replied by letter to the VOVD that Vakhit Avkhadov had not been brought to that authority on 24 April 2001. 62. In a letter dated 15 June 2006 the district prosecutor’s office informed the first applicant that a criminal case into the abduction of her son had been opened; that operational and search measures aimed at identifying those responsible and establishing his whereabouts were under way; and that she had been summoned to the prosecutor’s office with a view to carrying out unspecified investigative measures. 63. On 15 and 16 June 2006 the district prosecutor’s office asked various hospitals, law-enforcement authorities and detention facilities in the Chechen Republic and neighbouring regions, whether Vakhit Avkhadov had applied to them for medical assistance, had been arrested or held in detention by them, and whether they were in possession of compromising materials (компрометирующий материал) in connection with him. From the replies of various authorities enclosed by the Government, it appears that the addressees of those requests for information denied having arrested or detained the missing man, and claimed that he had not contacted them for medical assistance and that they had no compromising material in connection with him. 64. In a report (рапорт) of 14 July 2006 the Department of the Interior of the Urus-Martanovskiy District (hereinafter also “the Urus-Martanovskiy ROVD” or “the ROVD”), informed the district prosecutor’s office that despite a door-to-door check (подворный обход) carried out in Urus‑Martan, it had proved impossible to identify witnesses to the abduction of Vakhit Avkhadov because he had been abducted early in the morning. 65. On 11 July 2006 the district prosecutor’s office instructed the ROVD to verify whether Vakhit Avkhadov had been arrested by servicemen of the Urus-Martanovskiy District and held in the district’s detention facilities. On the same date the district prosecutor’s office sent out similar requests to departments of the interior of other districts in the Chechen Republic. Those requests do not appear to have resulted in any relevant information. (d) Information concerning the decisions to suspend and resume the investigation and the applicants’ access to the case file 66. On 16 October 2001 the district prosecutor’s office decided to suspend the investigation in case no. 25350 and to send a copy of the decision to the prosecutor of the Urus-Martanovskiy District. However, the decision contained no reference as to whether the first applicant was to be notified and there is no indication that she was so informed. 67. On 15 June 2006 the acting prosecutor of the Urus-Martanovskiy District overturned the decision of 16 October 2001 to suspend the investigation on the grounds that it was premature and unfounded, and ordered it to be resumed. 68. On 13 July 2006 the district prosecutor’s office suspended the investigation of Vakhit Avkhadov’s abduction owing to the failure to identify those responsible. 69. In a letter of 16 June 2007 the deputy prosecutor of the Urus‑Martanovskiy District replied to a request for information about the investigation from the first applicant, saying that on 15 June 2006 the investigation in case no. 25350 had been resumed and that on 19 June 2006 she had been granted victim status in those proceedings. 70. On 8 June 2007 the first applicant had asked the district prosecutor’s office to grant her access to the case file concerning her son’s abduction and permission to make copies from it. She had submitted that she had had no information about the investigative steps taken and had received no reply to her previous request of 13 June 2006 for access to the case file. There is no indication that that request was ever replied to. 71. According to the Government, the investigation into the abduction of the applicants’ relative is pending. II. RELEVANT DOMESTIC LAW 72. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007). THE LAW I. THE GOVERNMENT’S OBJECTION REGARDING NON‑EXHAUSTION OF DOMESTIC REMEDIES A. Submissions by the parties 73. The Government contended that the complaint should be declared inadmissible for non-exhaustion of domestic remedies. They submitted that the investigation into Vakhit Avkhadov’s disappearance had not yet been completed. They further claimed that it had been open to the applicants to challenge the acts or omissions of the investigating authorities before the courts under Article 125 of the Code of Criminal Procedure (hereinafter also “the CCP”). In that respect they referred to the cases of A., S. and E. Furthermore, given that the first applicant had been granted victim status, she could have lodged complaints or petitions with the investigating authorities. Lastly, the Government asserted that it had been open to the applicants to pursue civil complaints for compensation of non-pecuniary damage under Articles 151 and 1069 of the Civil Code or to ask the civil courts to declare their missing relative dead, but that they had failed to do so. 74. The applicants contested that objection. They stated that the criminal investigation had proved to be ineffective. As regards the Government’s reference to the cases of A., S. and E., the applicants asserted that, to their knowledge, although the domestic courts in those cases had granted those persons’ complaints about the decisions to suspend the investigations or instructed the investigating authorities to grant them access to the case files, that had not influenced the relevant investigations in any way and they had remained ineffective. With reference to the Court’s practice, the applicants argued that they were not obliged to apply to the civil courts in order to exhaust domestic remedies. B. The Court’s assessment 75. The Court will examine the arguments of the parties in the light of the provisions of the Convention and its relevant practice (for a relevant summary, see Estamirov and Others v. Russia, no. 60272/00, §§ 73‑74, 12 October 2006). 76. As regards a civil action to obtain redress for damage sustained through the allegedly illegal acts or unlawful conduct of State agents, the Court has already found in a number of similar cases that this procedure alone cannot be regarded as an effective remedy in the context of claims brought under Article 2 of the Convention (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 119-21, 24 February 2005, and Estamirov and Others, cited above, § 77). In the Court’s view, the same holds true for their submission concerning the applicants’ ability to apply to the civil courts to have their relative declared missing or dead. In the light of the above, the Court confirms that the applicants were not obliged to pursue civil remedies. 77. As regards the parties’ submissions concerning the criminal investigation, the Court observes that the applicants complained to the law‑enforcement authorities shortly after the abduction of Vakhit Avkhadov and that an investigation has been pending since 16 August 2001. The applicants and the Government dispute the effectiveness of the investigation of the abduction. 78. The Court considers that the Government’s objection raises issues concerning the effectiveness of the investigation which are closely linked to the merits of the applicants’ complaints. Thus, it decides to join this objection to the merits of the case and considers that the issue falls to be examined below. II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 79. The applicants complained that Vakhit Avkhadov had been arrested by Russian servicemen, that he had then disappeared, and that the domestic authorities had failed to carry out an effective investigation of the matter. They relied on Article 2 of the Convention, which reads: “1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” A. Submissions by the parties 80. The Government argued that the applicants had failed to submit evidence “beyond reasonable doubt” that their relative had been abducted by State agents. The fact that the abductors had worn military uniforms and masks, had spoken Russian and had used APCs did not prove that they had belonged to Russian military forces. Vakhit Avkhadov’s body had never been discovered and there was no evidence that any special operations had been conducted in Urus-Martan on 24 April 2001, in particular, with a view to arresting him. 81. As regards the investigation, the Government submitted that it was not a matter of result but of means. Various complex investigative steps, including interviewing witnesses and sending out requests for information, had been carried out in the framework of the criminal case concerning the abduction of the applicants’ relative. The fact that those measures had produced no positive results could not be attributed to the Russian authorities. 82. The applicants claimed that there existed evidence “beyond reasonable doubt” that Vakhit Avkhadov had been abducted by servicemen on 24 April 2001 and should be presumed dead. In particular, they stressed that the Government had not disputed any of the circumstances surrounding their relative’s abduction, as presented by the applicants, and invited the Court to draw inferences from the Government’s refusal to produce an entire copy of the investigation file. They further submitted that the abductors had been armed and had worn camouflage uniforms and masks. They had spoken Russian and, more importantly, had arrived in several APCs, in which they had moved around freely despite the curfew and the presence of checkpoints, which at the material time had blocked the entry to and exit from the village. Moreover, the applicants emphasised that at about the same time on the same date, several other men had been abducted from their homes in Urus-Martan and that those who had been released had stated that they had been detained by servicemen and held on the premises of their military base. In the applicants’ submission, the Government had failed to adduce any evidence that insurgents or private persons could have used such military vehicles as APCs at the material time, and to do so was unrealistic. 83. The applicants further argued that the investigation into their relative’s disappearance had been pending for more than eight years. It had not been promptly opened, despite the fact that the first applicant had immediately alerted the authorities to the abduction of her son. None of the key witnesses, whose names had been provided by the first applicant, had been interviewed. The investigators had failed to identify and interview law‑enforcement officials from the Western Zone Alignment concerning the arrival of the APCs with the abductors of the applicants’ relative at their base on 24 April 2001. Other key investigative steps had not been carried out. The applicants had not been properly informed of the progress of the investigation, so as to ensure an adequate protection of their interests. In sum, the applicants concluded that the investigation into Vakhit Avkhadov’s disappearance had not satisfied the Convention requirements of effectiveness. B. The Court’s assessment 1. Admissibility The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court has already found that the Government’s objection concerning the alleged non‑exhaustion of domestic remedies should be joined to the merits of the complaint (see paragraph 78 above). The complaint under Article 2 of the Convention must therefore be declared admissible. 2. Merits (a) Alleged violation of the right to life of Vakhit Avkhadov (i) General principles 84. The Court reiterates that, given the importance of the protection afforded by Article 2, it must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances. Detained persons are in a vulnerable position and the obligation on the authorities to account for the treatment of a detained individual is particularly stringent where that individual dies or disappears thereafter (see, among other authorities, Orhan v. Turkey, no. 25656/94, § 326, 18 June 2002, and the authorities cited therein). Where the events at issue lie wholly or to a large extent within the exclusive knowledge of the authorities, as in the case of persons under their control in detention, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000‑VII, and Çakıcı v. Turkey [GC], no. 23657/94, § 85, ECHR 1999‑IV). (ii) The establishment of the facts 85. The Court observes that it has developed a number of general principles relating to the establishment of facts in dispute, in particular when faced with allegations of disappearance under Article 2 of the Convention (for a summary of these, see Bazorkina v. Russia, no. 69481/01, §§ 103‑09, 27 July 2006). The Court also notes that the conduct of the parties when evidence is being obtained has to be taken into account (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25). 86. The applicants alleged that at about 6 a.m. on 24 April 2001 their relative, Vakhit Avkhadov, had been abducted by servicemen and had then disappeared. They invited the Court to draw inferences as to the well‑founded nature of their allegations from the Government’s failure to provide the documents requested from them. They submitted that several people had witnessed Vakhit Avkhadov’s abduction and that at the same time on the same day further men had been abducted in the same manner. The applicants enclosed those witnesses’ statements to support that submission. 87. The Government did not contest any of the applicants’ factual allegations and conceded that Vakhit Avkhadov had been abducted on 24 April 2001 by unidentified armed camouflaged men, who had driven several APCs. However, they denied that the abductors had been servicemen, referring to the absence of conclusions from the ongoing investigation. 88. The Court notes that despite its requests for a copy of the investigation file, the Government refused to produce most of the documents from the case file, referring to Article 161 of the Code of Criminal Procedure. The Court reiterates that in previous cases it has already found that explanation insufficient to justify the withholding of key information requested by it (see Imakayeva v. Russia, no. 7615/02, § 123, ECHR 2006‑XIII (extracts)). 89. Consequently, and bearing in mind the principles referred to above, the Court finds that it can draw inferences from the Government’s conduct in respect of the well-founded nature of the applicants’ allegations. 90. Having regard to the applicants’ submissions concerning the circumstances of the abduction of their relative, the Court cannot but observe that they have remained consistent, detailed and coherent before both the domestic authorities and this Court (see paragraphs 9-14, 16-18, 29, 52, 55 and 59 above). Furthermore, the applicants furnished several witness statements in support of their allegations (see paragraph 7 above), which were not only uncontested by the Government but appeared to be confirmed, albeit indirectly, by the witness statements collected during the investigation carried out by the domestic authorities (see paragraphs 53 and 56-58 above). 91. The Court further points out that the Government did not dispute the applicants’ submission that, at the time of their relative’s abduction, the town of Urus-Martan had been under curfew and that the authorities had maintained manned checkpoints on the roads in and out of it. 92. It is also significant for the Court that one of the witnesses, on whose statement the applicants relied, explicitly submitted that her son had been apprehended and taken away at the same time, on the same day and in the same manner, namely by armed camouflaged persons driving APCs (see paragraph 14 above) and that a number of witnesses interviewed by the investigators stated that six men had been abducted in Urus-Martan on the same day as the applicants’ relative (see paragraphs 56 and 57 above). Those submissions, as well as the reply to the first applicant by the military prosecutor’s office of military unit no. 20102 of 15 August 2003 (see paragraph 41 above), appear to seriously undermine the Government’s assertion that the law-enforcement authorities had not carried out any special operations in Urus-Martan on the day the applicants’ relative was abducted. 93. In the Court’s view, the fact that a large group of armed men in camouflage uniforms, driving in a convoy of several military vehicles, including APCs, was able to pass freely through checkpoints during curfew hours and proceeded to arrest the applicants’ relative and, as it transpires, a number of other individuals, in a manner similar to that of State agents, strongly supports the applicants’ allegation that the abductors were State servicemen and that they were conducting a special operation in Urus‑Martan at the time of Vakhit Avkhadov’s abduction. 94. The Court notes that in their applications to the authorities the applicants consistently maintained that their relative had been detained by unknown servicemen and asked the investigating authorities to look into that possibility. It further notes that after more than 11 years the investigation has produced no tangible results. 95. The Court observes that where an applicant makes out a prima facie case and the Court is prevented from reaching factual conclusions owing to a lack of relevant documents, it is for the Government to argue conclusively why the documents in question cannot serve to corroborate the allegations made by the applicant, or to provide a satisfactory and convincing explanation of how the events in question occurred. The burden of proof is thus shifted to the Government and if they fail in their arguments, issues will arise under Article 2 and/or Article 3 (see, among many other authorities, Toğcu v. Turkey, no. 27601/95, § 95, 31 May 2005, and Akkum and Others v. Turkey, no. 21894/93, § 211, ECHR 2005‑II (extracts)). 96. Taking into account the above elements, the Court is satisfied that the applicants have made a prima facie case that their relative was abducted by State agents. The Government’s argument that the investigation had found no evidence that servicemen had been involved in the abduction is insufficient to discharge them from the above-mentioned burden of proof. Drawing inferences from the Government’s failure to submit the remaining documents requested, which were in their exclusive possession, or to provide another plausible explanation for the events in question, the Court finds that Vakhit Avkhadov was arrested on 24 April 2001 by servicemen during an unacknowledged security operation. 97. There has been no reliable news of Vakhit Avkhadov since the date of the abduction. His name has not been found in any official detention facility records. Lastly, the Government have not submitted any explanation as to what happened to him after his arrest. 98. Having regard to the previous cases concerning disappearances in Chechnya which have come before it (see, among many others, Bazorkina, cited above; Imakayeva, cited above; Luluyev and Others v. Russia, no. 69480/01, ECHR 2006‑VIII (extracts); Baysayeva v. Russia, no. 74237/01, 5 April 2007; Akhmadova and Sadulayeva, cited above; Alikhadzhiyeva v. Russia, no. 68007/01, 5 July 2007; and Umayevy v. Russia, no. 47354/07, 12 June 2012), the Court finds that in the context of the conflict in the Chechen Republic, when a person is detained by unidentified servicemen without any subsequent acknowledgment of the detention, this can be regarded as life-threatening. The absence of Vakhit Avkhadov or of any news of him for more than eleven years supports that assumption. 99. Accordingly, the Court finds that the available evidence permits it to establish that Vakhit Avkhadov must be presumed dead following his unacknowledged detention by State agents. (iii) The State’s compliance with Article 2 100. Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivation of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances (see, among other authorities, McCann and Others v. the United Kingdom, 27 September 1995, §§ 146-47 Series A no. 324, and Avşar v. Turkey, no. 25657/94, § 391, ECHR 2001‑VII (extracts)). 101. The Court has already found it established that the applicants’ relative must be presumed dead following his unacknowledged detention by State servicemen. Noting that the authorities do not rely on any justification in respect of the use of lethal force by their agents, it follows that liability for his presumed death is attributable to the respondent Government. 102. Accordingly, the Court finds that there has been a violation of Article 2 in its substantive aspect in respect of Vakhit Avkhadov. (b) Alleged inadequacy of the investigation 103. The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, McCann and Others, cited above, § 161, and Kaya v. Turkey, 19 February 1998, § 86, Reports of Judgments and Decisions 1998‑I). The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. This investigation should be thorough, independent, accessible to the victim’s family, carried out with reasonable promptness and expedition, effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances or otherwise unlawful, and afford a sufficient element of public scrutiny of the investigation or its results (see Hugh Jordan v. the United Kingdom, no. 24746/94, §§ 105-09, ECHR 2001‑III (extracts); Douglas-Williams v. the United Kingdom (dec.), no. 56413/00, 8 January 2002; Esmukhambetov and Others v. Russia, no. 23445/03, §§ 115-18, 29 March 2011, and Umarova and Others v. Russia, no. 25654/08, §§ 84-88, 31 July 2012). 104. The Court notes at the outset that the Government refused to produce most of the documents from case file no. 25350 and furnished only copies of several documents summarised above. It therefore has to assess the effectiveness of the investigation on the basis of the very sparse information submitted by the Government and the few documents available to the applicants which they provided to the Court. 105. Turning to the facts of the present case, the Court observes that Vakhit Avkhadov was abducted on 24 April 2001 and that the investigation into his abduction was opened on 16 August 2001 (see paragraph 28 above), namely three months and twenty-two days later. The applicants submitted that on 24 April 2001 they had complained about their relative’s disappearance to various authorities, both orally and in writing (see paragraph 19 above). However, they did not provide copies of their complaints. The Government did not contest that submission. It further follows from the materials submitted by the applicants that on 7 and 25 May 2001 the first applicant complained about the abduction of her son to the district court and the ombudsman (see paragraphs 26 and 48 above). Whilst in her complaint to the district court she explicitly stated that her earlier complaints to the authorities had yielded no results and the copy of that complaint was furnished by the applicants, the complaint to the ombudsman was furnished by the Government and apparently included in the investigation file (see ibid.). 106. Against that background, the Court is unable to attribute the responsibility for the delay in the opening of the investigation to any of the parties in the period between 24 April and 25 May 2001. Nonetheless, having regard to the available documents, it considers that as of 25 May 2001 at the latest the domestic authorities became aware of the crime allegedly committed and it was for them to report the matter to the appropriate prosecutor’s office via the official channels of communication that should exist between various law-enforcement agencies (see Khalidova and Others v. Russia, no. 22877/04, § 93, 2 October 2008, and Vakayeva and Others v. Russia, no. 2220/05, §§141-42, 10 June 2010). Accordingly, it finds that the delay of two months and twenty-two days in the opening of the investigation is attributable to the domestic authorities (compare Gerasiyev and Others v. Russia, no. 28566/07, § 96, 7 June 2011). In this connection, it stresses that such an important postponement per se is liable to affect the investigation of an abduction in life-threatening circumstances, where crucial action has to be taken in the first days after the event. 107. As regards the scope of the investigative measures taken, the Court considers it important to note the following. 108. First, it notes that between 6 and 18 August 2001 officers of the VOVD interviewed the first applicant and five residents of Urus‑Martan (see paragraphs 53-58 above). In this connection it takes note of the applicants’ submission that the majority of the residents of Urus‑Martan interviewed by the investigators did not reside in the same street as the applicants. Accordingly, it does not appear that the investigators took genuine attempts to identify and interview possible eyewitnesses to the abduction of Vakhit Avkhadov. The reason why the investigators omitted to interview members of the applicants’ family, other than the first applicant, who had been present at the time of the abduction of Vakhit Avkhadov, also remained unexplained. In this connection, the Court also cannot but note that the first attempt to identify possible witnesses to the abduction residing in the same street does not appear to have been carried out until July 2006, namely more than five years after the events (see paragraph 64 above). Even assuming that that was a genuine attempt to identify possible eyewitnesses to the abduction, given the time that had lapsed since the events in question, the Court doubts whether that investigative step could have brought about any positive results. 109. It further follows from the materials submitted by the Government that a number of investigative steps were taken with a considerable delay. In particular, in so far as the Government referred to numerous requests for information on Vakhit Avkhadov’s possible whereabouts and/or arrest and detention, it transpires from the documents made available by the respondent party that those requests were mainly made in June and July 2006, that is more than five years after the abduction (see paragraphs 63‑65 above). 110. Those delays, for which there has been no explanation in the instant case, constitute a breach of the obligation to exercise exemplary diligence and promptness in dealing with such a serious crime (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 86, ECHR 2002‑II). 111. Furthermore, it appears that a number of investigative steps have not been taken at all. In particular, the Court observes that, during more than eleven years in which the investigation has been pending, the investigators made no attempt to verify information concerning the use of military vehicles by the abductors and their possible itinerary, despite the fact that the first applicant, when interviewed, provided the relevant information. Moreover, there is no indication that the investigators took any steps to verify the applicants’ allegation that their relative had been taken to the premises of the Western Zone Alignment. Having regard to the witness statements obtained by the investigators in August 2001 and, in particular, to the fact that many of them submitted that the abduction of Vakhit Avkhadov had not been an isolated incident but that several other men had been abducted in the same manner and at the same time from Urus‑Martan (see paragraphs 52-59 above), the Court notes that the investigators made no attempt to take such basic steps as identifying the servicemen who participated in the operation, establishing their chain of command, and obtaining information from the checkpoints about the possible passage through them of the convoy of military vehicles. 112. It is further pointed out that the Government failed to explain why the first applicant was twice granted victim status. However, bearing that fact in mind and having regard to the documents submitted by them and the first applicant’s request to be granted victim status made in 2002, it transpires, at the very least, that she was not aware of the decision to grant her victim status issued in 2001 (see paragraphs 33 and 54 above). Furthermore, in view of the applicants’ repeated requests for access to the case file and to be provided with information on the progress of the investigation (see paragraphs 42, 43 and 46 above), the Court seriously doubts that they were informed of important developments in the investigation. Accordingly, the investigators failed to ensure that the investigation received the required level of public scrutiny or to safeguard the interests of the next of kin in the proceedings (see Oğur v. Turkey [GC], no. 21594/93, § 92, ECHR 1999‑III). 113. Lastly, it follows from the information submitted by the Government that the investigation was repeatedly suspended and resumed (see paragraphs 66-71 above). The Court emphasises in this respect that while the adjourning or reopening of proceedings is not in itself a sign that the proceedings are ineffective, it appears in the present case that the decisions to adjourn were made without the necessary investigative steps being taken, which led to numerous periods of inactivity and thus unnecessary protraction. Moreover, owing to the time that had elapsed since the events complained of, certain investigative measures that ought to have been carried out much earlier could no longer usefully be conducted. 114. Having regard to the part of the Government’s objection that was joined to the merits of the complaint, inasmuch as it concerns the fact that the domestic investigation is still pending, the Court notes that the investigation, having been repeatedly suspended and resumed and plagued by inexplicable delays, has been ongoing for many years and has produced no tangible results. Accordingly, the Court finds that the remedy relied on by the Government was ineffective in the circumstances and rejects their objection in this part. 115. In so far as the Government argued that it had been open to the applicants to challenge the investigating authorities’ acts or omissions before the courts or before the investigators themselves, the Court observes that, as has already been pointed out, the effectiveness of the investigation had already been undermined in its early stages by the authorities’ failure to take necessary and urgent investigative measures. The investigation was repeatedly suspended and resumed, but it appears that no significant investigative measures were taken to identify those responsible for the abduction. In such circumstances, the Court considers that the applicants could not be required to challenge in court every single decision of the district prosecutor’s office. Moreover, as it has established above, the applicants received only fragmentary and incomplete information about the course of the investigation and the investigative measures taken. Against that background, the Court finds that the remedy cited by the Government was ineffective in the circumstances and dismisses their preliminary objection as regards the applicants’ failure to exhaust domestic remedies within the context of the criminal investigation. 116. In the light of the foregoing, the Court holds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance of Vakhit Avkhadov, in breach of Article 2 in its procedural aspect. III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 117. The applicants relied on Article 3 of the Convention, submitting that, as a result of their relative’s disappearance and the State’s failure to investigate it properly, they had endured psychological distress in breach of Article 3 of the Convention, which reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Submissions by the parties 118. The Government argued that there had been no breach of the applicants’ rights under Article 3 because all their complaints had been examined in accordance with the applicable legislation. 119. The applicants maintained the complaint. B. The Court’s assessment 1. Admissibility 120. The Court notes that this complaint under Article 3 of the Convention 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. 2. Merits 121. The Court has found on many occasions that in a situation of enforced disappearance, close relatives of the victim may themselves be victims of treatment in violation of Article 3. The essence of such a violation does not mainly lie in the fact of the “disappearance” of the family member, but rather concerns the authorities’ reactions and attitudes to the situation when it is brought to their attention (see Orhan, cited above, § 358, and Imakayeva, cited above, § 164). 122. In the present case, the Court notes that the first applicant is the mother of the disappeared person and that the second to fifth applicants are his sisters. The first applicant witnessed her son’s abduction. The applicants have not had any news of their relative for more than eleven years. During this period they have made enquiries of various official bodies, both in writing and in person, about their missing relative. Despite their attempts, the applicants have never received any plausible explanation or information about what became of Vakhit Avkhadov following his detention. Most of the responses they received denied State responsibility for his arrest or simply informed them that the investigation was ongoing. The Court’s findings under the procedural aspect of Article 2 are also of direct relevance. 123. The Court therefore concludes that there has been a violation of Article 3 of the Convention in respect of the applicants. IV. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 124. The applicants further stated that Vakhit Avkhadov had been detained in violation of the guarantees contained in Article 5 of the Convention, which reads, in so far as relevant: “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:... (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; ... 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” A. Submissions by the parties 125. The Government asserted that no evidence had been obtained by the investigators to confirm that Vakhit Avkhadov had been deprived of his liberty by State agents. He had not been listed among the names of people kept in detention centres and none of the regional law-enforcement agencies had information about his detention. 126. The applicants reiterated the complaint. B. The Court’s assessment 1. Admissibility 127. 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. 2. Merits 128. The Court has previously noted the fundamental importance of the guarantees contained in Article 5 to secure the right of individuals in a democracy to be free from arbitrary detention. It has also stated that unacknowledged detention is a complete negation of these guarantees and discloses a very grave violation of Article 5 (see Çiçek v. Turkey, no. 25704/94, § 164, 27 February 2001; Luluyev, cited above, § 122, and El Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, § 233, 13 December 2012). 129. The Court has found that Vakhit Avkhadov was abducted by State servicemen on 24 April 2001 and has not been seen since. His detention was not acknowledged, was not logged in any custody records and no official trace of his subsequent whereabouts or fate exists. In accordance with the Court’s practice, this fact in itself must be considered a most serious failing, because it enables those responsible for an act of deprivation of liberty to conceal their involvement in a crime, to cover their tracks and to escape accountability for the fate of a detainee. Furthermore, the absence of detention records noting such matters as the date, time and location of detention and the name of the detainee, as well as the reasons for the detention and the name of the person effecting it, must be seen as incompatible with the very purpose of Article 5 of the Convention (see Orhan, cited above, § 371). 130. The Court further considers that the authorities should have been more alert to the need for a thorough and prompt investigation of the applicants’ complaints that their relative had been detained and taken away in life-threatening circumstances. However, the Court’s findings above in relation to Article 2 and, in particular, the conduct of the investigation leave no doubt that the authorities failed to take prompt and effective measures to safeguard him against the risk of disappearance. 131. In view of the foregoing, the Court finds that Vakhit Avkhadov was held in unacknowledged detention without any of the safeguards contained in Article 5. This constitutes a particularly grave violation of the right to liberty and security enshrined in Article 5 of the Convention. V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 132. The applicants complained that they had been deprived of effective remedies in respect of the aforementioned violations of Articles 2, 3 and 5, contrary to Article 13 of the Convention, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Submissions by the parties 133. The Government contended that the applicants had had effective remedies at their disposal, as required by Article 13 of the Convention, and that the authorities had not prevented them from using those remedies. 134. The applicants maintained the complaint. B. The Court’s assessment 1. Admissibility 135. 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. 2. Merits 136. The Court reiterates that in circumstances where, as in the instant case, a criminal investigation into a disappearance has been ineffective and the effectiveness of any other remedy that might have existed, including civil remedies suggested by the Government, has consequently been undermined, the State has failed in its obligation under Article 13 of the Convention (see Khashiyev and Akayeva, cited above, § 183). 137. Consequently, there has been a violation of Article 13 in conjunction with Articles 2 and 3 of the Convention. 138. As regards the applicants’ reference to Article 5 of the Convention, the Court considers that, in the circumstances, no separate issue arises in respect of Article 13, read in conjunction with Article 5 of the Convention (see Aziyevy v. Russia, no. 77626/01, § 118, 20 March 2008, and Alikhadzhiyeva, cited above, § 96). VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 139. 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 140. The applicants made no claim in respect of pecuniary damage. As regards non-pecuniary damage, they submitted that, as a result of the alleged violations of Articles 2, 3, 5 and 13 of the Convention, they had endured mental and emotional suffering which could not be compensated for solely by a finding of a violation of those Convention provisions. They asked the Court to award them non-pecuniary damages, leaving the amount to the Court’s discretion. 141. The Government submitted that, should the Court find a violation of any of the Convention provisions, a finding of such a violation would constitute a sufficient just satisfaction. 142. The Court has found a violation of Articles 2, 5 and 13 of the Convention on account of the unacknowledged detention and disappearance of the applicants’ son and brother. The applicants themselves have been found to have been victims of a violation of Article 3 of the Convention on account of their mental suffering endured as a result of the disappearance of their relative and the authorities’ attitude to that fact. The Court thus accepts that they have suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations. It finds it appropriate to award the first applicant 45,000 euros (EUR) and the second to fifth applicants EUR 15,000 jointly under this heading, plus any tax that may chargeable to them. B. Costs and expenses 143. The applicants were represented by lawyers from the NGO European Human Rights Advocacy Centre/Memorial. The aggregate claim in respect of costs and expenses related to the applicants’ legal representation amounted to 1,911.05 pounds sterling (GBP), to be paid into the representatives’ account in the United Kingdom. The amount claimed was broken down as follows: (a) GBP 700 for six hours of legal drafting of documents submitted to the Court at a rate of GBP 100 and 150 per hour; (b) GBP 1,036.05 for translation costs, and (c) GBP 175 for administrative and postal costs. 144. The Government pointed out that the applicants should be entitled to the reimbursement of their costs and expenses only in so far as it had been shown that they had actually been incurred and were reasonable as to quantum (see Skorobogatova v. Russia, no. 33914/02, § 61, 1 December 2005). 145. The Court now has to establish whether the costs and expenses indicated by the applicants’ relative were actually incurred and whether they were necessary (see McCann and Others, cited above, § 220). 146. Having regard to the details of the information and the timesheets submitted by the applicants, the Court is satisfied that those rates are reasonable and reflect the expenses actually incurred by the applicant’s representatives. Accordingly, it considers it appropriate to award the applicants’ representatives the amount claimed, that is GBP 1,911.05, in respect of costs and expenses, plus any tax that may be chargeable to the applicants, the award to be paid into the representatives’ bank account in the United Kingdom, as identified by the applicants. C. Default interest 147. 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 to the merits the Government’s objection as to non‑exhaustion of criminal domestic remedies and rejects it; 2. Declares the application admissible; 3. Holds that there has been a substantive violation of Article 2 of the Convention in respect of Vakhit Avkhadov; 4. Holds that there has been a violation of Article 2 of the Convention in respect of the failure to conduct an effective investigation into the circumstances in which Vakhit Avkhadov disappeared; 5. Holds that there has been a violation of Article 3 of the Convention in respect of the applicants on account of their mental suffering; 6. Holds that there has been a violation of Article 5 of the Convention in respect of Vakhit Avkhadov; 7. Holds that there has been a violation of Article 13 of the Convention in respect of the alleged violation of Articles 2 and 3 of the Convention; 8. Holds no separate issue arises under Article 13 of the Convention in respect of the alleged violation of Article 5 of the Convention; 9. Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement, save in the case of the payment in respect of costs and expenses: (i) EUR 45,000 (forty-five thousand euros) to the first applicant and EUR 15,000 (fifteen thousand euros) to the second to fifth applicants jointly, plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) GBP 1,911.05 (one thousand nine hundred and eleven pounds and five pence), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be paid into the representatives’ bank account in the United Kingdom; (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. Done in English, and notified in writing on 14 March 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenIsabelle Berro-LefèvreRegistrarPresident

FIRST SECTION CASE OF TER-SARGSYAN v. ARMENIA (Application no. 27866/10) JUDGMENT STRASBOURG 27 October 2016 FINAL 27/01/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Ter-Sargsyan v. Armenia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Mirjana Lazarova Trajkovska, President,Ledi Bianku,Kristina Pardalos,Aleš Pejchal,Armen Harutyunyan,Pauliine Koskelo,Tim Eicke, judges,and Abel Campos, Section Registrar, Having deliberated in private on 4 October 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 27866/10) against the Republic of Armenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Armenian national, Mr Vaghinak Ter-Sargsyan (“the applicant”), on 11 May 2010. 2. The applicant was born in 1970 and lived in Armavir prior to his imprisonment. He was represented by Mr G. Papoyan, a lawyer practising in Armavir. The Armenian Government (“the Government”) were represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia at the European Court of Human Rights. 3 The applicant alleged, in particular, that he was denied a fair trial since his conviction had been based on the pre-trial statements of witnesses whom he had no opportunity to examine at any stage of the proceedings and video recordings that had not been examined in court. 4. On 4 June 2013 the complaints concerning the impossibility for the applicant to obtain the attendance and examination of witnesses against him and the use of video recordings were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. The criminal proceedings against the applicant in Kazakhstan 5. On 7 October 2000 S.M. was stabbed by two persons during an event in a café in the town of Kostanay, Kazakhstan. He died on the way to hospital. 6. The following day the authorities of Kazakhstan started an investigation into the incident, the applicant and his friend, B.M., being the main suspects. 7. A number of eyewitnesses were questioned. In particular, witness Kh.H., the owner of the café, stated that he had seen the applicant and B.M. having a conversation with the victim and his nephew, G.T. At the time of the incident he had been outside the café and went back in when he heard the noise. Thereafter he learnt from those present that B.M. and the applicant had stabbed the victim and escaped. Witness K.H., Kh.H.’s son, stated that he had been in the kitchen when he heard the noise and came out into the hall. He then saw the applicant with a knife in his hands going towards the victim. Witness G.T. stated that he had been with his uncle, the victim, in the café and had witnessed the applicant and B.M. stabbing him. Witness O.D., the cook who worked in the café at the relevant time, stated that she had seen the applicant and B.M. having an argument with the victim and stabbing him, after which both of them had fled. Witness V.H., Kh.H.’s brother, who had also been in the café that night, stated that he had seen B.M. and the victim having an argument, after which the former had stabbed the victim, and then the applicant had also stabbed him. Witness G.A. submitted that he had been in the café with his wife on the day of the incident and had witnessed B.M. and the applicant attacking the victim and that he had seen a knife in the applicant’s hands. A number of other persons, namely A.O. and A.G., singers, V.K. and E.B., guests, and L.T., the camera person in charge of filming the event, were also questioned. These witnesses did not provide any concrete details or mention any names and stated that they had either been far away from those fighting or for some other reason had not seen exactly what happened. Witness L.T. had recognised the applicant in a photograph shown to him during the investigation. 8. On 21 January 2004 the investigative authorities of Kazakhstan brought charges against the applicant and his detention was ordered. Since his whereabouts were unknown, a search was initiated for him. 9. On 5 November 2004 the applicant was arrested in Armenia. 10. In May 2005 the applicant was released after no agreement was reached between the law enforcement authorities of Armenia and Kazakhstan as regards his extradition. 11. On 29 May 2006 the Kostanay Regional Court found B.M. guilty of murder and sentenced him to seventeen years’ imprisonment. 12. As regards the applicant, the case was sent to Armenia for him to be prosecuted in his country of nationality. B. The criminal proceedings against the applicant in Armenia 13. On 8 July 2008 the Vagharshapat Police investigation unit took over the case and the charges against the applicant were brought into conformity with the relevant provisions of the Criminal Code of Armenia. The applicant was charged with premeditated murder. 14. On 21 August 2008 the applicant was arrested. He was questioned on the same day and refused to make any statement in respect of the events of 7 October 2000. 15. In the course of the investigation the applicant requested a confrontation with witnesses V.H., G.A., G.T., K.H., L.T. and O.D. The investigator dismissed his motion on the ground that both in the course of the investigation and at B.M.’s trial those witnesses had reinstated their statements against him. 16. On 20 October 2008 the case file, including the finalised indictment, was transmitted to the Southern Criminal Court (one of the first instance criminal courts before the relevant amendments to the Code of Criminal Procedure) to be set down for trial. 17. On an unspecified date the applicant’s lawyer filed a motion seeking to remit the case for further investigation on the ground that, inter alia, it was necessary to carry out several confrontations given that there were substantial contradictions between the applicant’s statements and the statements of witnesses V.H., G.A., G.T., K.H., L.T. and O. D. It appears that the Southern Criminal Court never examined this request. 18. Following the amendments to the Code of Criminal Procedure the case was taken over by the Armavir Regional Court. C. The applicant’s trial 19. According to the applicant, the eleven witnesses residing in Kazakhstan (see paragraph 7 above), who had made statements against him, were not properly summoned and the Regional Court did not obtain any proof that they had been notified about the trial. The applicant further claimed that at the preparatory hearing the victim’s legal heir, S.M.’s wife, had submitted declarations from five out of the eleven witnesses stating their reasons for being unable to attend the hearings. The declarations, drafted in Russian, were not properly examined by the Regional Court but were included in the case file and it was decided to continue the examination of the case in the absence of all the witnesses. 20. The Government argued that all eleven witnesses were properly summoned to the applicant’s trial. However, it had not been possible to locate all of them, while eight of the witnesses submitted to the trial court declarations certified by a notary in Kazakhstan stating their inability to attend the trial for financial, family or work-related issues. 21. The applicant pleaded not guilty at the trial and contested the veracity of the statements of the witnesses made during the investigation of the case in Kazakhstan. 22. The victim’s legal heir testified before the trial court that on 7 October 2000 her husband, S.M., had attended an event in the café together with G.T. She had then been told by relatives that her husband had been stabbed during a fight. 23. At the hearing of 26 May 2009 the applicant filed a motion seeking to have examined in court the video recordings from the crime scene included in the case file. He claimed that it was necessary to identify other witnesses of the incident and clarify the colour of his outerwear on the day of the crime. The Regional Court dismissed this motion. 24. On 19 June 2009 the Regional Court convicted the applicant of murder and sentenced him to fourteen years’ imprisonment. In doing so, the Regional Court stated, in particular, the following: “The Court, taking into account and having assessed the evidence supporting the accusation, finds that [the applicant’s] guilt in the offence was established by the following evidence that has been collected in the course of the investigation and examined in the court proceedings: The [trial] statement of the victim’s legal heir ... according to which at around 8 p.m. on 7 October 2000 her husband S.M. attended an event in ... the café together with G.T. She was told ... by the relatives that during a fight in the café Armenian men [B.M.] and [the applicant] had stabbed her husband... The statement of witness Kh.H. ... (witness Kh.H.’s pre-trial statement was read out) The statement of witness K.H. ... (witness K.H.’s pre-trial statement was read out). The statement of witness G.T. ... (witness G.T.’s pre-trial statement was read out). The statement of witness O.D. ... (witness O.D.’s pre-trial statement was read out). The statement of witness V.H. ... (witness V.H.’s pre-trial statement was read out). The statement of witness G.A. ... (witness G.A.’s pre-trial statement was read out). The statement of witness A.O. ... (witness A.O.’s pre-trial statement was read out). The statement of witness A.G. ... (witness A.G.’s pre-trial statement was read out). The statement of witness V.K. ... (witness V.K.’s pre-trial statement was read out). The statement of witness L.T. ... (witness L.T.’s pre-trial statement was read out). The statement of witness E.B. ... (witness E.B.’s pre-trial statement was read out). [The applicant’s] guilt ... has been substantiated also by: The judgment of 29.05.2006 of Kostanay Regional Court ... ... clarifications provided by expert ... during the above-mentioned court proceedings that there were two penetrating knife injuries on the body ... each one of the injuries could by itself have caused the death. The statement of technical expert [during the proceedings before the Kostanay Regional Court] ... The conclusion of the forensic medical examination of 31.10.2000 ... S.M.’s death had been caused by extensive haemorrhage as a result of liver wounds. The statement of forensic medical expert [during the proceedings before the Kostanay Regional Court] ... Each stab wounded the liver. The conclusion of technical forensic examination of 21.10.2005 ... according to which ... the traces of two penetrating wounds ... discovered on S.M.’s vest could have been inflicted by a ... knife. The records of examination of the crime scene, records of ... examination of victim S.M.’s clothes, two video recordings of the event, the video recording of the examination of the body during the examination of the crime scene and forensic medical examination.” 25. The applicant lodged an appeal claiming, inter alia, that there had been no confrontation between him, B.M. and the witnesses against him during the investigation of the case, either in Kazakhstan or in Armenia. He further complained that the Regional Court had failed to summon properly the witnesses and relied on their pre-trial statements without good reason. He also complained about the fact that the video recordings from the crime scene had not been examined during the trial, although the Regional Court relied on them as evidence against him. 26. On 31 August 2009 the Criminal Court of Appeal upheld the applicant’s conviction with reliance on the same evidence. As regards the non-attendance of witnesses the Court of Appeal stated that, according to the materials of the case, the witnesses had been properly summoned but had submitted statements about their inability to appear before the court due to lack of funds or reasons relating to family or work and reinstated their statements made during the pre-trial investigation. 27. The applicant lodged an appeal on points of law raising arguments similar to those submitted in his previous appeal. 28. On 12 November 2009 the Court of Cassation declared the applicant’s appeal on points of law inadmissible for lack of merit stating, inter alia, that the Court of Appeal had reached the correct conclusion as regards the applicant’s complaints about his inability to examine the witnesses against him. II. RELEVANT DOMESTIC AND INTERNATIONAL LAW A. The Code of Criminal Procedure 29. Article 86 (§§ 3 and 4) states that a witness is obliged to appear upon the summons of the authority dealing with the case in order to testify or to participate in investigative and other procedural activities. The failure of a witness to comply with his obligations shall result in imposition of sanctions prescribed by the law. 30. According to Article 105, in criminal procedure it is illegal to use as evidence or as a basis for accusation facts obtained by violation of the defence rights of the suspect and accused. 31. A witness may be compelled to appear by a reasoned decision of the court and shall inform the summoning authority of any valid reasons for not appearing within the set time-limit (Article 153 § 2). 32. According to Article 216 § 1 the investigator is entitled to carry out a confrontation of two persons who have been questioned previously and whose statements contain substantial contradictions. The investigator is obliged to carry out a confrontation if there are substantial contradictions between the statements of the accused and some other person. 33 If a summoned witness fails to appear, the court, having heard the opinions of the parties, decides whether to continue or adjourn the trial proceedings. The proceedings may be continued if the failure to appear of any such person does not impede the thorough, complete and objective examination of the circumstances of the case (Article 332 § 1). 34. Article 342 § 1 permits the reading out at the trial of witness statements made during the inquiry, the investigation or a previous court hearing if the witness is absent from the court hearing for reasons which rule out the possibility of his appearance in court, if there is substantial contradiction between those statements and the statements made by that witness in court, and in other cases prescribed by this Code. 35. Article 426.1 § 1 states that only final acts are subject to review on the ground of newly-discovered or new circumstances. On the ground of newly-discovered or new circumstances a judicial act of the court of first instance is reviewed by the appeal court, while the judicial acts of the appeal court and the Court of Cassation are reviewed by the Court of Cassation (Article 426.1 § 2). 36. According to Article 426.4 § 1 (2) judicial acts may be reviewed on the ground of new circumstances if a violation of a right guaranteed by an international convention to which Armenia is a party has been found by a final judgment or decision of an international court. B. The Minsk Convention of 22 January 1993 on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters 37. The Minsk Convention of 22 January 1993 on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters came into force in respect of Armenia and Kazakhstan in 1994. The relevant provisions of this Convention read as follows: Article 9Summoning witnesses, victims, civil plaintiffs, civil defendants, their representatives and experts “... 3. The requesting Contracting Party shall reimburse travel and subsistence expenses to the witnesses, experts, the victim and his legal representatives as well as the salary for the days of absence from work; the expert also has the right to be paid for the expertise. The summons shall mention the payments to which the summoned persons are entitled; the judicial body of the requesting Party shall make an advance payment for the relevant expenses upon their request.” Article 16Finding out addresses and other data “1. If requested the Contracting Parties shall, in accordance with their legislation, provide assistance in finding out addresses of persons residing on their territory, if it is necessary for the exercise of the rights of their citizens ...” C. The Chişinău Convention of 7 October 2002 on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters 38. The Chişinău Convention of 7 October 2002 on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters, a follow-up to the Minsk Convention of 22 January 1993 which did not supersede it, took effect in Armenia and Kazakhstan in 2005 and 2004 respectively. The relevant provisions of this Convention read as follows: Article 12Validity of documents “1. Documents which have been issued or certified on the territory of one of the Contracting Parties by a competent institution or a person specially vested with such power within its competence and in compliance with the prescribed manner and attested with the Coat of Arms seal, are valid in the territories of other Contracting Parties without any special certification. 2. Documents which are considered as official on the territory of one Contracting Party have the legal effect of official documents on the territories of other Contracting Parties.” THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION 39. The applicant complained that he had been deprived of the opportunity to examine the witnesses against him at any time during the criminal proceedings and that the video recordings, which were part of the evidence against him, were not examined in court. He alleged a breach of Article 6 §§ 1 and 3(d) of the Convention, the relevant provisions of which read as follows: “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: (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.” 40. The Government contested that argument. A. Admissibility 41. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 1. Admission at the applicant’s trial of the evidence of absent witnesses (a) The parties’ submissions 42. The applicant submitted that his conviction was mainly based on evidence of witnesses whom he had been unable to question at any stage of the proceedings. In particular, none of the eleven witnesses whose pre-trial statements were relied on by the trial court when convicting him were properly summoned to his trial. The Regional Court had failed to verify whether the witnesses in question had in fact received their summonses, which indeed had not been the case. As for the declarations submitted by some but not all the witnesses, the reasons advanced in them such as insufficient financial means, work or family issues could not be considered as good reasons for not attending his trial. 43. The Government contended that all prosecution witnesses had been duly summoned to the applicant’s trial. They submitted court summonses notifying eleven witnesses about the hearings of 3, 16 and 29 April 2009 and also summonses notifying six of them about the hearing of 13 May 2009. The Government submitted that the trial court took due note of the declarations by eight witnesses about their inability to attend the applicant’s trial for various reasons. Moreover, these declarations, which had been certified by a notary in Kazakhstan and were thus considered as documents having a legal value in Armenia, contained their requests to admit their pre‑trial statements. The Government further submitted that the pre-trial statements of the absent witnesses were not the sole and decisive evidence against the applicant. In addition to their evidence, the applicant’s conviction was based on the judgment of Kostanay Regional Court in respect of B.M., the results of forensic examinations and investigative activities, the records of questioning of experts which were read out in court and the trial statement of the victim’s legal heir. (b) The Court’s assessment (i) General principles 44. The Court reiterates that the guarantees in paragraph 3 (d) of Article 6 are specific aspects of the right to a fair hearing set forth in paragraph 1 of this provision (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118, ECHR 2011); it will therefore consider the applicant’s complaint under both provisions taken together (see Windisch v. Austria, 27 September 1990, § 23, Series A no. 186). 45. The Court further reiterates that all evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. There are exceptions to this principle, but they must not infringe the rights of the defence; as a general rule, Article 6 §§ 1 and 3 (d) require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statements or at a later stage (see Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, § 707, 25 July 2013). 46. In Al-Khawaja and Tahery, cited above, §§ 119‑147 the Grand Chamber clarified the principles to be applied when a witness does not attend a public trial. These principles may be summarised as follows: (i) the Court should first examine the preliminary question of whether there was a good reason for admitting the evidence of an absent witness, keeping in mind that witnesses should as a general rule give evidence during the trial and that all reasonable efforts should be made to secure their attendance; (ii) typical reasons for non-attendance are, like in the case of Al‑Khawaja and Tahery (cited above), the death of the witness or the fear of retaliation. There are, however, other legitimate reasons why a witness may not attend trial; (iii) when a witness has not been examined at any prior stage of the proceedings, allowing the admission of a witness statement in lieu of live evidence at trial must be a measure of last resort; (iv) the admission as evidence of statements of absent witnesses results in a potential disadvantage for the defendant, who, in principle, in a criminal trial should have an effective opportunity to challenge the evidence against him. In particular, he should be able to test the truthfulness and reliability of the evidence given by the witnesses, by having them orally examined in his presence, either at the time the witness was making the statement or at some later stage of the proceedings; (v) according to the “sole or decisive rule”, if the conviction of a defendant is solely or mainly based on evidence provided by witnesses whom the accused is unable to question at any stage of the proceedings, his defence rights are unduly restricted; (vi) in this context, the word “decisive” should be narrowly understood as indicating evidence of such significance or importance as is likely to be determinative of the outcome of the case. Where the untested evidence of a witness is supported by other corroborative evidence, the assessment of whether it is decisive will depend on the strength of the supportive evidence: the stronger the other incriminating evidence, the less likely that the evidence of the absent witness will be treated as decisive; (vii) however, as Article 6 § 3 of the Convention should be interpreted in the context of an overall examination of the fairness of the proceedings, the sole or decisive rule should not be applied in an inflexible manner; (viii) in particular, where a hearsay statement is the sole or decisive evidence against a defendant, its admission as evidence will not automatically result in a breach of Article 6 § 1. At the same time, where a conviction is based solely or decisively on the evidence of absent witnesses, the Court must subject the proceedings to the most searching scrutiny. Because of the dangers of the admission of such evidence, it would constitute a very important factor to balance in the scales and one which would require sufficient counterbalancing factors, including the existence of strong procedural safeguards. The question in each case is whether there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place. This would permit a conviction to be based on such evidence only if it is sufficiently reliable given its importance to the case. 47. Those principles have been further clarified in the case of Schatschaschwili (see Schatschaschwili v. Germany [GC], no. 9154/10, §§ 111 – 131, ECHR 2015) in which the Grand Chamber confirmed that the absence of good reason for the non-attendance of a witness could not, of itself, be conclusive of the lack of fairness of a trial, although it remained a very important factor to be weighed in the balance when assessing the overall fairness, and one which might tip the balance in favour of finding a breach of Article 6 §§ 1 and 3(d). Furthermore, given that its concern was to ascertain whether the proceedings as a whole were fair, the Court should not only review the existence of sufficient counterbalancing factors in cases where the evidence of the absent witness was the sole or the decisive basis for the applicant’s conviction, but also in cases where it found it unclear whether the evidence in question was sole or decisive but nevertheless was satisfied that it carried significant weight and its admission might have handicapped the defence. The extent of the counterbalancing factors necessary in order for a trial to be considered fair would depend on the weight of the evidence of the absent witness. The more important that evidence, the more weight the counterbalancing factors would have to carry in order for the proceedings as a whole to be considered fair (see Seton v. the United Kingdom, no. 55287/10, §§ 58 and 59, 31 March 2016). (ii) Application of these principles to the present case (α) Whether there was good reason for the non-attendance of the witnesses at trial 48. The Court notes that the applicant was convicted by the courts in Armenia of murder committed on the territory of Kazakhstan, where the offence was investigated without the participation of the applicant. The murder had been committed in a public place during an event in the presence of a number of individuals. These individuals, namely Kh.H., K.H., G.T., O.D., V.H. and G.A., when questioned during the criminal proceedings in Kazakhstan, had pointed to the applicant as the person who, together with B.M., had stabbed the victim. The rest of the eyewitnesses, namely A.O., A.G., V.K., L.T. and E.B., who were also questioned by the Kazakh investigative authorities, had described the events without indicating the applicant’s name as the alleged perpetrator while L.T. had recognised him when shown his picture (see paragraph 7 above). The Court further notes that none of these eleven witnesses attended the applicant’s trial. 49. The Court observes that no reasons were provided by the trial court for admitting the evidence of absent witnesses, while the justification relied on by the Court of Appeal for not securing their attendance was that they had been properly summoned by the trial court but had stated their inability to attend due to financial, family and work issues (see paragraph 26 above). However, the Court is not convinced that this could be considered a good reason justifying the failure to have these witnesses examined and for admitting their evidence. Notably, the fact that the domestic courts were unable to locate the witness concerned or the fact that a witness was absent from the country in which the proceedings were conducted was found not to be sufficient in itself to satisfy the requirements of Article 6 § 3 (d), which require the Contracting States to take positive steps to enable the accused to examine or have examined witnesses against him (see Gabrielyan v. Armenia, no. 8088/05, § 81, 10 April 2012; Lučić v. Croatia, no. 5699/11, § 79, 27 February 2014). Such measures form part of the diligence which the Contracting States have to exercise in order to ensure that the rights guaranteed by Article 6 are enjoyed in an effective manner (see Gabrielyan, cited above, § 81, with further references). Otherwise, the witness’s absence is imputable to the domestic authorities (see Tseber v. the Czech Republic, no. 46203/08, § 48, 22 November 2012, and Lučić, cited above, § 79). 50. The Court accepts that the trial court made certain efforts to secure the attendance of the witnesses. Thus, according to postal receipts submitted by the Government, the eleven witnesses questioned during the investigation conducted by the Kazakh authorities were summoned to at least three hearings before the trial court. However, only witnesses L.T., O.D. and Kh.H received one or more of their summonses. The Court notes that eight out of the eleven witnesses submitted to the trial court written declarations certified by a notary in Kazakhstan stating various reasons for their inability to attend the trial and requesting the courts to accept their statements made during the investigation. In particular, witnesses V.H. and E.B. stated that they were unable to attend the trial due to lack of financial means; witness O.D. referred to family issues while witnesses A.G., G.T., V.K., L.T. and K.H. stated that they could not appear because of work. In addition to work issues, witnesses L.T. and K.H. also referred to the lack of financial means. It is not entirely clear how some of the witnesses, who had not received their summonses, were notified about the applicant’s trial so that they submitted the relevant declarations. In any event, the Court takes note of the fact that at least eight witnesses were aware of the applicant’s trial in Armenia while witness Kh.H., having received his summons, had neither attended the trial nor submitted a declaration similar to the others. 51. The Court is not persuaded that all reasonable efforts can be said to have been made to secure the attendance of witnesses Kh.H., K.H., G.T., O.D., V.H., G.A., A.O., A.G., V.K., L.T. and E.B. The trial court could have resorted to international legal assistance in accordance with the Minsk Convention of 22 January 1993 (see paragraph 37 above) to which both Armenia and Kazakhstan are parties. Furthermore, the courts in Armenia readily accepted the reasons advanced in the declarations submitted by eight witnesses, namely that they were unable to attend the applicant’s trial due to lack of financial means, family or work, without even considering the possibility of reimbursing the costs of their travel and subsistence which possibility existed under the above-mentioned Minsk Convention (ibid.). Thus, it cannot be said that there were good reasons for the failure to have witnesses Kh.H., K.H., G.T., O.D., V.H., G.A., A.O., A.G., V.K., L.T. and E.B. examined. However, the absence of a good reason for their non‑attendance at the trial of the applicant is not the end of the matter. This is a consideration which is not of itself conclusive of the lack of fairness of a criminal trial, although it constitutes a very important factor to be weighed in the overall balance together with the other relevant considerations (see Schatschaschwili, cited above, § 113). (β) Whether the evidence of the absent witness was “sole or decisive” 52. As to the second stage of the test, the Court notes that the trial court explicitly referred to the evidence of the eleven absent witnesses when substantiating the applicant’s guilt (see paragraph 24 above). It is not in doubt that, as pointed out by the Government, this evidence did not constitute the only item of evidence on which the trial court relied in its judgment (ibid.). The Court therefore needs to determine whether the evidence produced by the absent witnesses was “decisive” for the applicant’s conviction (see Schatschaschwili, cited above, § 123 and Al‑Khawaja and Tahery, cited above, § 131). In view of the fact that the domestic courts did not express their position on this issue, the Court must make its own assessment of the weight of the evidence given by these witnesses, having regard to the additional incriminating evidence available (see Schatschaschwili, cited above, § 143; Poletan and Azirovik v. the former Yugoslav Republic of Macedonia, no. 26711/07, 32786/10 and 34278/10, § 88, 12 May 2016). 53. The Court observes in this regard that the additional incriminating evidence relied on by the trial court when convicting the applicant included the statement of the victim’s legal heir before it, the judgment of 29 May 2006 of Kostanay Regional Court in respect of the applicant’s co-offender, the statements made by forensic experts during the latter’s trial in Kazakhstan, the results of forensic examinations, the records of various investigative activities conducted in Kazakhstan and the video recordings of the event. The Court, having regard to these elements of evidence, cannot but note that witnesses Kh.H., K.H., G.T., O.D., V.H., G.A., A.O., A.G., V.K., L.T. and E.B were the only eyewitnesses of the offence whereas the victim’s legal heir, although examined at the applicant’s trial, had not personally witnessed the offence. The other evidence available was not conclusive as to the fact that it was indeed the applicant who had stabbed S.M. The Court therefore considers that the evidence of the absent witnesses was “decisive” for the applicant’s conviction. (γ) Whether there were sufficient “counterbalancing factors” 54. The Court must lastly determine whether there were sufficient counterbalancing factors in place, including measures that permitted a fair and proper assessment of the reliability of the evidence of the absent witnesses to take place. 55. The Court observes that the applicant had no opportunity to examine the witnesses in question at any stage of the proceedings. It is true that the applicant did not participate in the criminal proceedings against him in Kazakhstan for reasons not attributable to the authorities. He therefore did not have the opportunity to cross-examine those witnesses either at the pre‑trial stage when they made their statements or at later stages of the proceedings in Kazakhstan. The Court notes, however, that the applicant was eventually deprived of the possibility of examining those witnesses during the criminal proceedings against him in Armenia, including at his trial. The Court further notes that no procedural measures were taken to compensate for the lack of opportunity to cross-examine the witnesses at the trial. Furthermore, the trial court did not assess the credibility of the absent witnesses and the reliability of their statements in a careful manner and merely listed them as evidence substantiating the applicant’s guilt (see paragraph 24 above). 56. The foregoing considerations are sufficient to enable the Court to conclude that the applicant was unreasonably restricted in his right to examine witnesses whose testimony played a decisive role in securing his conviction. 57. Accordingly, there has been a violation of Article 6 § 3 (d) taken together with Article 6 § 1 of the Convention in this respect. 2. The refusal by the trial court to examine the video recordings (a) The parties’ submissions 58. The applicant submitted that two video recordings of the event, which were not examined by the trial court, were relied on in its judgment as evidence substantiating his guilt. The trial court had refused to examine those recordings, despite the specific request of the defence in view of the fact that their examination could have contributed to the establishment of the facts of the case, including those present at the event and the applicant’s outerwear on that day. 59. The Government contended that the non-examination of the video recordings did not affect the fairness of the applicant’s trial. The facts that the applicant sought to have established had already been established by the Kostanay Regional Court in the judgment of 29 May 2006 which, in accordance with the Minsk and Chişinău Conventions, was an official document having evidentiary force in Armenia. (b) The Court’s assessment 60. The Court reiterates that the concept of a fair hearing implies, inter alia, the right to an adversarial trial which means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party (see Brandstetter v. Austria, 28 August 1991, § 67, Series A no. 211). In this respect, the Court notes that it is possible that a procedural situation which does not place a party at any disadvantage vis-à-vis his or her opponent still represents a violation of the right to adversarial proceedings if the party concerned did not have an opportunity to have knowledge of, and comment on, all evidence adduced or observations filed, with a view to influencing the court’s decision (see Krčmář and Others v. the Czech Republic, no. 35376/97, §§ 38-46, 3 March 2000 and Gregačević v. Croatia, no. 58331/09, § 50, 10 July 2012). 61. The Court observes that in its judgment the trial court listed the two video recordings in question among other evidence substantiating the applicant’s guilt in the offence (see paragraph 24 above) without any further reasoning which would enable the Court to determine the evidentiary value of this piece of evidence. The Court further observes that the defence requested those recordings to be examined, claiming that this would have assisted the trial court in determining certain facts which, in its opinion, could have influenced the trial court’s decision. 62. In the absence of any reasoning by the domestic courts with regard to the evidentiary value of the video recordings, the Court is not willing to speculate on the degree of influence the recordings had on the trial court’s decision. Nevertheless, the Court notes that the video recordings in question had been filmed in the café on the day of the events and they were admitted in material evidence against the applicant without having been examined by the trial court in the course of the proceedings, which fact deprived the defence of the opportunity to put forward arguments in relation to them. 63. The Government argued that the facts sought to be allegedly established by the examination of the recordings had already been established in the judgment of the Kostanay Regional Court of 29 May 2006. The Court observes, however, that this judgment concerned the conviction of the applicant’s co-offender based on the assessment of the evidence, including the video recordings at issue, by the trial court in Kazakhstan. The Court further observes that there is nothing in the case file to suggest that there was any new evidence gathered by the Armenian investigative authorities in addition to the evidence transmitted to them by the Kazakh authorities that had conducted the investigation (see paragraphs 13, 14, 15 and 16 above). Nevertheless, the Court finds that the non‑examination of the video recordings by the Armenian trial court in order to make its own assessment of this evidence was not in line with the requirements of adversarial proceedings under Article 6 § 1 of the Convention, given that the defence was eventually deprived of any possibility to comment on this piece of evidence. 64. Accordingly, there has been a violation of Article 6 § 1 of the Convention in this respect also. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 65. 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 66. The applicant claimed 50,000 euros (EUR) in respect of non‑pecuniary damage. 67. The Government submitted that the finding of a violation would constitute sufficient just satisfaction. In any event, the applicant’s claims were excessive. 68. The Court accepts that the applicant has suffered non‑pecuniary damage, which is not sufficiently compensated by the finding of a violation. Making its assessment on an equitable basis and having regard to the circumstances of the case, the Court awards the applicant EUR 3,100 in respect of non-pecuniary damage. 69. Furthermore, the Court considers it necessary to point out that a judgment in which it finds a violation of the Convention or its Protocols imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, if any, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court and make all feasible reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000‑VIII; Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 487, ECHR 2004‑VII; and Lungoci v. Romania, no. 62710/00, § 55, 26 January 2006). In the case of a violation of Article 6 of the Convention, the applicant should as far as possible be put in the position he would have been in had the requirements of this provision not been disregarded (see, mutatis mutandis, Sejdovic v. Italy [GC], no. 56581/00, § 127, ECHR 2006‑II; and Yanakiev v. Bulgaria, no. 40476/98, § 89, 10 August 2006). 70. The Court notes in this connection that Articles 426.1 and 426.4 of the Code of Criminal Procedure allow the reopening of the domestic proceedings if the Court has found a violation of the Convention or its Protocols (see paragraphs 35 and 36 above). The Court is in any event of the view that the most appropriate form of redress in cases where it finds that a trial was held in breach of the fair trial guarantees of Article 6 of the Convention would, as a rule, be to reopen the proceedings in due course and re-examine the case in keeping with all the requirements of a fair trial (see, mutatis mutandis, Lungoci, cited above, § 56). B. Costs and expenses 71. The applicant did not submit any claims under this head. C. Default interest 72. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 read in conjunction with Article 6 § 3 (d) of the Convention as regards the applicant’s inability to question the witnesses against him; 3. Holds that there has been a violation of Article 6 § 1 of the Convention as regards the non-examination of video recordings; 4. 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 3,100 (three thousand one hundred euros), plus any tax that may be chargeable, in respect of non‑pecuniary damage to be converted into Armenian drams 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 amount 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 applicant’s claim for just satisfaction. Done in English, and notified in writing on 27 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Abel CamposMirjana Lazarova TrajkovskaRegistrarPresident

FIRST SECTION CASE OF PERIĆ v. CROATIA (Application no. 34499/06) JUDGMENT STRASBOURG 27 March 2008 FINAL 27/06/2008 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 Perić v. Croatia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Khanlar Hajiyev,Dean Spielmann,Sverre Erik Jebens,Giorgio Malinverni,George Nicolaou, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 6 March 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 34499/06) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mrs Ilonka Perić (“the applicant”), on 8 August 2006. 2. The applicant was represented by Mr M. Zrilić, a lawyer practising in Rijeka. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik. 3. On 10 April 2007 the Court decided to communicate the complaint concerning the applicant’s right to a fair trial to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1919 and lives in Opatija. 5. On 23 October 2002 the applicant brought a civil action in the Opatija Municipal Court (Općinski sud u Opatiji) against D. K. and J. K., seeking termination of a contract for lifelong maintenance (ugovor o doživotnom uzdržavanju). She enclosed a copy of the contract in question, drawn up on 3 August 1993, and its annex of 30 November 1999. The contract stipulated that the defendants were to care for the applicant until her death in order to acquire all her property post mortem. She also asked that two witnesses, E. P. and Š. T., be heard. The defendants submitted receipts for monthly payments for the applicant’s maintenance and asked that four witnesses be heard. 6. At the hearing held on 6 February 2003 the Municipal Court heard evidence from the parties and after that, in the presence of the applicant’s counsel, scheduled the next hearing for 17 March 2003. The applicant’s counsel fell ill and had to be hospitalised pending urgent surgery. On 11 March 2003 he sent a fax to the Municipal Court excusing himself from the hearing scheduled for 17 March and asked for an adjournment of the hearing. However, the Municipal Court proceeded with the hearing and heard two witnesses, Lj. M. and Š. M., the parents of one of the defendants. It also scheduled a further hearing for 23 April 2003 and ordered that two other witnesses, also called on behalf of the defendants, be heard. Neither the applicant nor her counsel were notified of the hearing. 7. The counsel did attend the hearing of 23 April 2003, which he had learned about by chance when at the Opatija Municipal Court on that day for other reasons. The Municipal Court heard two witnesses for the defendants, A. A. and I. P., as scheduled, but refused the proposal of the applicant’s counsel that five other witnesses be heard. The relevant parts of the transcript of the hearing read as follows: “Counsel for the plaintiff asks that the plaintiff’s neighbours M. C., S. R., V. G., N. I. and N. Z. be heard as witnesses about the circumstances of the applicant’s daily life and the care she has received from them in the past two years and in particular in the period of four months following her release from a hospital, when she was immobile. ... Counsel for the plaintiff withdraws his request that E. P. be called as a witness since, according to the plaintiff, that person is not able to attend a hearing at the court. The judge decides that evidence is not to be heard from Š. T., E. P., M. C., S. R., V. G., N. I. and N. Z. and no further evidence is to be presented.” The Municipal Court proceeded by closing the proceedings and pronouncing its judgment, dismissing the applicant’s claim. The relevant part of the judgment read as follows: “In view of the above, the court considers that the factual background has been fully established on the basis of the parties’ testimony and in particular in the contract for lifelong maintenance and its annex and the enclosed receipts for payment. For that reason the court declined to hear evidence from the witnesses called on behalf of the plaintiff, because these witnesses cannot tell the court anything of influence on its judgment, save for the fact that they, owing to the plaintiff’s age, have been increasingly assisting her on a daily basis. For precisely that reason the court is not relying on the evidence heard from the witnesses Lj. M., Š. M. and A. A.” 8. A subsequent appeal by the applicant was dismissed by the Rijeka County Court (Županijski sud u Rijeci) on 10 December 2003. 9. On 12 February 2004 the applicant lodged a constitutional complaint alleging, inter alia, that her right to a fair trial had been infringed, because the hearing of 17 March 2003 had been held in the absence of her counsel who had duly excused himself due to his urgent hospitalisation and that she had thus been prevented from questioning two witnesses. Furthermore, neither she nor her counsel had been notified of the hearing scheduled for 23 April 2003. Although her counsel did attend the hearing, which he had learned about by chance on the very same day, he had not been able to prepare himself to question the two further witnesses who had been heard at that hearing. Thus, she had been prevented from questioning any of the four witnesses, all of whom had been heard on behalf of the defendants. Finally, she complained that the Opatija Municipal Court had refused to hear any of her seven witnesses. On 21 June 2006 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the complaint as ill-founded. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 10. The applicant complained that the civil proceedings instituted by her were unfair, relying on Article 6 § 1 of the Convention which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” 11. The Government contested that argument. A. Admissibility 12. 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 13. The applicant contended that in the civil proceedings instituted upon her action the Opatija Municipal Court had refused to hear any of her six witnesses while it had heard four witnesses on behalf of the defendants. She further argued that she had been prevented from questioning two witnesses, Lj. M. and Š. M, heard on behalf of her opponents, and also that she had not been adequately represented at the hearing held on 23 April 2003 since neither she nor her counsel had been notified of the date of the hearing. Although her counsel had attended the hearing, of which he had learned by chance, having been at the Opatija Municipal Court on that date for other reasons, he had not known that two witnesses were to be heard at that hearing and therefore he had had no chance to prepare himself properly to question those witnesses. 14. The Government asserted that the applicant had enjoyed the benefits of a fair trial, stressing that the trial court had accepted the following as evidence from the applicant: her own testimony and a copy of the contract for lifelong care with its annex; while on behalf of the defendants it had heard four witnesses and had seen the receipts for payment of monthly sums for the applicant’s maintenance. They further contended that the relevant domestic law empowered trial courts to decide what evidence to admit. In the proceedings at issue the trial court had established relevant facts from the evidence heard by the parties and the documents submitted. Hence, there had been no need to hear the witnesses called on behalf of the applicant. Furthermore, the trial court had given adequate reasons for dismissing the applicant’s further evidence. 15. As to the applicant’s contention that she had not been given an opportunity to question two witnesses, namely Lj. M. and Š. M, the second defendant’s parents, the Government maintained that the trial court had expressly stated that its judgment had not relied on the evidence heard from these witnesses. 16. As to the applicant’s allegations that neither she not her counsel had been duly informed of the hearing held on 23 April 2003, the Government submitted that the applicant’s counsel had nevertheless attended the hearing in question, questioned the witnesses and asked that five further witnesses be heard, which showed that the applicant had been sufficiently and adequately represented at that hearing. 17. The Court reiterates that while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see Schenk v. Switzerland, judgment of 12 July 1988, Series A no. 140, p. 29, §§ 45-46, and Garcia Ruiz v. Spain [GC] no. 30544/96, ECHR 1999-I, § 28). Similarly, it is in the first place for the national authorities, and notably the courts, to interpret domestic law and the Court will not substitute its own interpretation for theirs in the absence of arbitrariness. This principle applies, inter alia, to the application of procedural rules concerning the nomination of witnesses by parties (see Tamminen v. Finland, no. 40847/98, § 38, 15 June 2004). In this connection, the Court further reiterates that it is not within its province to substitute its own assessment of the facts for that of the national courts. However, under the Court’s case-law, the requirements of fairness of the proceedings include the way in which the evidence is taken and submitted. The Court’s task is to ascertain whether the proceedings in their entirety, including the way in which evidence was taken and submitted, were fair within the meaning of Article 6 § 1 (see, inter alia, Dombo Beheer B.V. v. the Netherlands, judgment of 27 October 1993, Series A no. 274, pp. 18,19, § 31.). 18. The requirements inherent in the concept of fair hearing are not necessarily the same in cases concerning the determination of civil rights and obligations as they are in cases concerning the determination of a criminal charge. This is borne out by the absence of detailed provisions such as paragraphs 2 and 3 of Article 6 applying to cases of the former category. Thus, although these provisions have a certain relevance outside the strict confines of criminal law (see, mutatis mutandis, Albert and Le Compte v. Belgium, judgment of 10 February 1983, Series A no. 58, p. 20, § 39), the Contracting States have greater latitude when dealing with civil cases concerning civil rights and obligations than they have when dealing with criminal cases (see Pitkänen v. Finland, no. 30508/96, § 59, 9 March 2004). 19. Nevertheless, certain principles concerning the notion of a fair hearing in cases concerning civil rights and obligations emerge from the Court’s case-law. Most significantly for the present case, it is clear that the requirement of equality of arms, in the sense of a fair balance between the parties, applies in principle to such cases as well as to criminal cases (see Feldbrugge v. the Netherlands, judgment of 29 May 1986, Series A no. 99, p. 17, § 44 and Dombo Beheer, cited above, p. 19, § 33). In that connection the Court considers that as regards litigation involving opposing private interests, equality of arms implies that each party must be afforded a reasonable opportunity to present his case - including his evidence - under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent. It is left to the national authorities to ensure in each individual case that the requirements of a fair hearing are met (see Dombo Beheer, cited above, p. 19, § 33). 20. As to the present case, the Court notes that the applicant initially, when bringing her civil action, proposed that evidence be heard from two witnesses, E. P. and Š. T. Later on, at the hearing held on 23 April 2003, the applicant withdrew her request that E. P. be heard, and proposed that the court hear evidence from further five witnesses, M. C., S. R., V. G., N. I. and N. Z. She stated that the relevance of their evidence was that they could provide information on the care provided to her by persons other than the defendants, who had undertaken an obligation to care for the applicant in order to acquire all her property post mortem. Thus, the evidence heard from these witnesses would, in the applicant’s view, show that the defendants had failed to provide her with adequate care and hence had failed to fulfil their contractual obligations, which entitled the applicant to seek the termination of the contract in question. 21. As to the reasons given by the domestic courts for not admitting the evidence adduced by the applicant, the Court notes that, even though a domestic court has a certain margin of appreciation when choosing arguments in a particular case and admitting evidence in support of the parties’ submissions, an authority is obliged to justify its activities by giving reasons for its decisions (see Suominen v. Finland, no. 37801/97, § 36, 1 July 2003). 22. In the instant case the Opatija Municipal Court justified its refusal to hear evidence from six witnesses called on behalf of the applicant by saying that the factual background of the case had been sufficiently established from the parties’ statements and the supporting documents, namely the contract for lifelong maintenance and its annex and the receipts for payments made by the defendants to the applicant. In this connection, the Court notes that the contract in question together with its annex was submitted by the applicant as an enclosure when her civil action was lodged on 23 October 2002. The receipts for payment were submitted by the defendants at the beginning of the trial and the parties’ evidence was heard at the hearing held on 6 February 2003. 23. Thus, according to the Opatija Municipal Court’s arguments, the facts had already been sufficiently established on 6 February 2003, which was the only reason for not admitting any further evidence proposed by the applicant. The Court notes however that after that date four more witnesses called on behalf of the defendants were heard as follows: at the hearing held on 17 March 2003, in the absence of the applicant and her counsel, Lj. M. and Š. M., the parents of one of the defendants, were heard, while on the hearing held on 23 April 2003 R. P. and A. A. were heard. 24. The Court notes that, while refusing to hear any of the six witnesses called on behalf of the applicant, the trial court nevertheless heard four witnesses called on behalf of the defendants even after it considered that the factual background of the case had already been fully established. In this connection the Court observes that, although it is not its task to examine whether the court’s refusal to admit the evidence submitted by the applicant was well-founded, in its assessment of compliance of the procedure in question with the principle of equality of arms which is a feature of the wider concept of a fair trial (see Ekbatani v. Sweden, judgment of 26 May 1988, Series A no. 134, p. 14, § 30), significant importance is attached to appearances and to the increased sensitivity of the public to the fair administration of justice (see Borgers v. Belgium, judgment of 30 October 1991, Series A no. 214‑B, p. 31, § 24). 25. Bearing in mind the above considerations viewed in the light of the applicable principles, the Court finds that the applicant did not have a fair trial in the proceedings in question, in so far as the trial court refused to hear evidence from any of the six witnesses called on behalf of the applicant, for reasons which contradicted the trial court’s agreement to hear evidence from four witnesses called on behalf of the defendants. There has therefore been a violation of Article 6 § 1. 26. In view of the above findings the Court does not need to examine the remainder of the applicant’s complaints of fairness of proceedings. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 27. The applicant complained that she had had no effective remedy in respect of her Article 6 complaints. She relied on Article 13 of the Convention which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 28. The Court notes that the applicant was able to lodge an appeal against the first instance judgment and a constitutional complaint whereby she was able to advance the same complaints that she is now presenting before the Court The fact that the remedies used by the applicant were unsuccessful does not render them ineffective for the purposes of Article 13 of the Convention. 29. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 30. 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 31. The applicant claimed 100,000 Croatian kunas (HRK) in respect of non-pecuniary damage. 32. The Government deemed the sum claimed excessive and unfounded as there had been no causal link between the violations complained of and the applicant’s financial expectations. 33. The Court cannot speculate about the outcome of the trial had it been in conformity with Article 6 and therefore, an award of just satisfaction can only be based on the fact that the applicant did not have the benefit of the guarantees of that Article. The Court, accepting that the lack of such guarantees has caused the applicant non-pecuniary damage which cannot be made good by the mere finding of a violation, awards her 2,000 euros (EUR) in that respect. B. Costs and expenses 34. The applicant also claimed HRK 4,392 for the costs and expenses incurred before the domestic courts and HRK 13,505 for those incurred before the Court. 35. The Government made no comments in this respect. 36. According to the Court’s case-law, an applicant is entitled to reimbursement of his 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 information in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 1,800 for the proceedings before the Court. C. Default interest 37. 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 1. Declares the complaint concerning the applicant’s right to a fair trial admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. 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, the following amounts which are to be converted into the national currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 2,000 (two thousand euros) in respect of non-pecuniary damage; (ii) EUR 1,800 (one thousand eight hundred euros) in respect of costs and expenses; (iii) any tax that may be chargeable on the above amounts; (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; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 27 March 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident

FIRST SECTION CASE OF BEĆIROVIĆ v. CROATIA (Application no. 45379/10) JUDGMENT STRASBOURG 18 December 2012 This judgment is final but it may be subject to editorial revision. In the case of Bećirović v. Croatia, The European Court of Human Rights (First Section), sitting as a Committee composed of: Khanlar Hajiyev, President,Nina Vajić,Julia Laffranque, judges,and André Wampach, Deputy Section Registrar, Having deliberated in private on 27 November 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 45379/10) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Ibrahim Bećirović (“the applicant”), on 3 May 2010. 2. The applicant was represented by Ms V. Pušić Miličević, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3. On 6 July 2011 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1954 and lives in Zagreb. A. Civil proceedings 5. On 21 November 2005 Ms M.S. brought a civil action against the applicant in the Rab Municipal Court (Općinski sud u Rabu) seeking that the loan agreement concluded between her and the applicant be declared null and void. The plaintiff’s statement of claim was served on the applicant on 12 January 2006. 6. On 16 May 2007 the Supreme Court (Vrhovni sud Republike Hrvatske) ordered that the case be transferred to the Rijeka Municipal Court (Općinski sud u R ijeci). 7. On 30 September 2011 the Rijeka Municipal Court delivered a judgment ruling for the plaintiff in part. 8. Following appeals by both parties, on 5 September 2012 the Rijeka County Court (Županijski sud u Rijeci) quashed the first-instance judgment and remitted the case. 9. The proceedings are currently again pending before the Rijeka Municipal Court. B. Proceedings following the applicant’s request for the protection of the right to a hearing within a reasonable time Merits 10. Meanwhile, on 19 March 2009 the applicant lodged a request for the protection of the right to a hearing within a reasonable time (zahtjev za zaštitu prava na suđenje u razumnom roku) with the Rijeka County Court, complaining about the length of the above civil proceedings. 11. On 14 May 2009 the Rijeka County Court found a violation of the applicant’s right to a hearing within a reasonable time, awarded him 4,000[1] Croatian kunas (HRK) in compensation and ordered the Rijeka Municipal Court to give a decision in the applicant’s case within ten months of service of its decision. According to the Government, the County Court’s decision was served on the Rijeka Municipal Court on the same day. 12. On 31 August 2009 the Supreme Court dismissed an appeal by the applicant and upheld the first-instance decision. The Supreme Court’s decision was served on the applicant’s representative on 14 October 2009. II. RELEVANT DOMESTIC LAW 13. The relevant provisions of the Courts Act (Zakon o sudovima, Official Gazette nos. 150/05, 16/07 and 113/08), governing the request for the protection of the right to a hearing within a reasonable time, as the remedy for the length of judicial proceedings in Croatia, are set out in Praunsperger v. Croatia, no. 16553/08, § 21, 22 April 2010. 14. Section 64 of the Constitutional Act on the Constitutional Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette nos. 99/99, 29/02 and 49/02 – “the Constitutional Court Act”) provides that a constitutional complaint may be lodged within the time-limit of thirty days which begins on the day that the contested decision is received. 15. According to the Constitutional Court’s practice, that court is not competent to supervise the implementation of higher courts’ decisions ordering lower courts to decide a case within a certain time-limit (see, for example, Pavić v. Croatia, no. 21846/08, § 11, 28 January 2010). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 16. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 17. The Government contested that argument. 18. The period to be taken into consideration began on 12 January 2006, when the plaintiff’s statement of claim was served on the applicant, and has not yet ended. Thus, the case has so far been pending for six years and nine months, at two levels of jurisdiction. A. Admissibility 1. The applicant’s victim status 19. The Government first submitted that on 14 May 2009 the Rijeka County Court had accepted the applicant’s request, found a violation of his right to a hearing within reasonable time and awarded him appropriate compensation. The violation complained of had, therefore, been remedied before the domestic authorities and, as a result, the applicant had lost his victim status. 20. The applicant replied that he could still be considered a victim of the violation complained of. 21. The Court first notes that at the time of the Rijeka County Court’s decision of 14 May 2009, the proceedings had been pending for some three years and four months, at one level of jurisdiction (see paragraph 11 above). It also notes that the County Court awarded the applicant the equivalent of approximately 545 euros (EUR). The compensation awarded by that court does not correspond to what the Court would have been likely to award under Article 41 of the Convention in respect of the same period. 22. The Court further notes that in the same decision the Rijeka County Court also ordered the Rijeka Municipal Court to decide the applicant’s case within ten months of the service of its decision. Given that the County Court’s decision was, according to the Government, served on the Rijeka Municipal Court on 14 May 2009 (see paragraph 11 above), the above time-limit expired on 14 March 2010. However, the Rijeka Municipal Court adopted a judgment in the applicant’s case only on 30 September 2011 (see paragraph 7 above), thereby exceeding the time-limit left to it by some one and a half year. 23. Having regard in particular to the fact that the Rijeka Municipal Court did not comply with the County Court’s order to deliver a decision within ten months, the compensation awarded cannot be regarded as adequate in the circumstances of the case (see the principles established under the Court’s case-law in Cocchiarella v. Italy [GC], no. 64886/01, §§ 65-107, ECHR 2006-V, or Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 178-213, ECHR 2006-V). Therefore, in respect of the period covered by the County Court’s finding, the applicant has not lost his victim status within the meaning of Article 34 of the Convention. 2. Exhaustion of domestic remedies 24. The Government also invited the Court to declare the application inadmissible for non-exhaustion of domestic remedies. They submitted that the applicant should have lodged a constitutional complaint against the Supreme Court’s decision. They further submitted that, as regards the length of proceedings in the period following the Rijeka County Court’s decision, the applicant should have lodged a second request for the protection of the right to a hearing within reasonable time. However, he had failed to resort to those remedies. 25. The applicant replied that, even though his appeal had been dismissed, he had eventually been satisfied with the Supreme Court’s decision because at that time he had believed that the Rijeka Municipal Court would comply with the order of the Rijeka County Court and decide his case within ten months. Therefore, at that moment he had not had any interest to lodge a constitutional complaint against the Supreme Court’s decision. The applicant also submitted that, in view of the fact that the Rijeka Municipal Court had not observed the order of the Rijeka County Court to decide his case within the specified time-limit, he was not required to lodge a second request for the protection of the right to a hearing within reasonable time to complain about the length of the proceedings in the period after the Rijeka County Court’s decision. 26. As regards the Government’s argument that the applicant should have lodged a constitutional complaint against the Supreme Court’s decision, the Court first observes that this decision was served on the applicant’s representative on 14 October 2009. Having regard to section 64 of the Constitutional Court Act (see paragraph 14 above), it follows that the applicant could have lodged a constitutional complaint against it the latest on 13 November 2009. The Court further refers to its above finding that the applicant can still claim to be the victim of the violation of his right to a hearing within a reasonable time primarily because the Rijeka Municipal Court did not comply with the Rijeka County Court’s order to deliver a decision in his case within ten months (see paragraphs 22-23 above). That became evident on 14 March 2010 when that time-limit expired. However, at that moment the statutory time-limit for lodging a constitutional complaint against the Supreme Court’s decision had already elapsed. In any event, given that the Constitutional Court is not competent to supervise the implementation of higher courts’ decisions ordering lower courts to decide a case within a certain time-limit (see paragraph 15 above), the Court does not see, and the Government has not demonstrated, how lodging a constitutional complaint would have remedied the failure of the Municipal Court to comply with the County Court’s order in the present case. 27. As regards the Government’s argument that the applicant should have lodged a second request for the protection of the right to a hearing within reasonable time to complain about the length of the proceedings in the period following the Rijeka County Court’s decision, the Court notes that it has already rejected similar objections raised by the Government in a number of length-of-proceedings cases against Croatia (see, for example, Lonza v. Croatia, no. 14062/07, §§ 25-26, 1 April 2010; Kvartuč v. Croatia (no. 2), no. 34830/07, §§ 34-36, 22 April 2010, and Čiklić v. Croatia, no. 40033/07, §§ 26-28, 22 April 2010) and sees no reason to hold otherwise in the present case. 28. It follows that both objections by the Government’s as to the exhaustion of domestic remedies must be rejected. 3. Conclusion 29. The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It also notes, having regard to the foregoing, that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 30. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 31. The Court notes that in its decision of 14 May 2009 the Rijeka County Court found that the proceedings had lasted unreasonable long. The Court sees no reason to hold otherwise as it has itself frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar as the present case (see, for example (see, for example, Jelavić-Mitrović v. Croatia (dec.), no. 9591/02, ECHR, 13 January 2005). Therefore, already in the period which was subject to the County Court’s scrutiny the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. It has retained that character throughout the subsequent period that has so far lasted some three years and five months after the delivery of the County Court’s decision (see paragraph 18 above). 32. In the light of the foregoing, the Court considers that there has been a breach of Article 6 § 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 33. 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 34. The applicant did not submit any claim in respect of pecuniary or non-pecuniary damage. The Court therefore considers that there is no call to award him any sum on that account. B. Costs and expenses 35. The applicant claimed HRK 3,075 for the costs and expenses incurred before the domestic courts and HRK 6,150 for those incurred before the Court. 36. The Government contested these claims. 37. Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 180 for costs and expenses in the domestic proceedings and EUR 750 for the proceedings before the Court, plus any tax that may be chargeable to the applicant on these amounts. C. Default interest 38. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months, EUR 930 (nine hundred and thirty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be converted into Croatian kunas, 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 18 December 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. André WampachKhanlar HajiyevDeputy RegistrarPresident [1]. Approximately 545 euros (EUR).

FOURTH SECTION CASE OF HARASZTHY AND OTHERS v. HUNGARY (Application no. 71256/11) JUDGMENT STRASBOURG 14 June 2016 This judgment is final but it may be subject to editorial revision. In the case of Haraszthy and Others v. Hungary, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: Krzysztof Wojtyczek, President,Egidijus Kūris,Iulia Motoc, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 24 May 2016, Delivers the following judgment, which was adopted on that date: FACTS AND PROCEDURE 1. The case originated in an application (no. 71256/11) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by six Hungarian nationals, Mr László Haraszthy, Mr György László Márton, Mr Gábor Horn, Ms Nóra Siska, Mr Zoltán Pintér and Ms Mária Terézia Oszter (“the applicants”), on 11 November 2011. 2. The applicants were represented by Mr I. P. Horváth, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Justice. 3. On 31 August 2015 the applicants’ complaints under Article 1 of Protocol No. 1 to the Convention concerning the imposition of 98% tax on their severance payment were communicated to the Government. I. THE FIRST FIVE APPLICANTS 4. On 9 November 2015 and 4 January 2016 the Court received friendly settlement declarations signed by the Government and by five applicants under which these five applicants agreed to waive any further claims against Hungary in respect of the facts giving rise to their complaints against an undertaking by the Government to pay Mr László Haraszthy EUR 12,800 (twelve thousand eight hundred euros), Mr Görgy László Márton EUR 3,200 (three thousand two hundred euros), Mr Gábor Horn EUR 1,000 (one thousand euros), Ms Nóra Siska EUR 5,300 (five thousand three hundred euros) and Mr Zoltán Pintér EUR 7,100 (seven thousand one hundred euros) to cover any pecuniary and non-pecuniary damage as well as costs and expenses, which will be converted into Hungarian forints at the rate applicable on the date of payment, and will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court. In the event of failure to pay this sum within the said three-month period, the Government undertook to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case in respect of these five applicants. II. THE SIXTH APPLICANT 5. The sixth applicant, Ms Mária Terézia Oszter was born in 1949 and lives in Budakeszi. From 1 July 1997 she was employed at the State-owned National Asset Management Ltd. Her employment was terminated on 30 May 2011. A certain part of her severance payment was subject to special tax at a 98% rate. Accordingly, special tax was levied on her severance payment in the amount of HUF 2,195,835 (approximately EUR 7,300). THE LAW 6. The Court takes note of the friendly settlement reached between the Government and the five applicants. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the first five applicants’ complaints. In view of the above, it is appropriate to strike this part of the application out of the list. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 7. The sixth applicant complained about the imposition of 98 % tax on part of her remuneration due on termination of her employment. She relied on Article 1 of Protocol No. 1. The Government did not dispute the applicant’s allegations. 8. The Court notes that the 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. 9. The Court observes that virtually identical circumstances gave rise to a violation of Article 1 of Protocol No. 1 in the case of R.Sz. v. Hungary (no. 41838/11, 2 July 2013, §§ 54-62); and is satisfied that there is no reason to hold otherwise in the present application. It follows that there has been a violation of Article 1 of Protocol No. 1. 10. Relying on Article 41 of the Convention, the sixth applicant claimed some pecuniary and non-pecuniary damage to be awarded in line with the Court’s case-law. 11. Having regard to the fact that, in the absence of the 98% tax rate, the applicant’s severance would have been in all likelihood subject to the general personal income taxation, the Court awards the sixth applicant EUR 6,100 (six thousand one hundred euros) in respect of pecuniary and non-pecuniary damage combined. 12. The sixth applicant claimed the reimbursement of costs and expenses incurred before the Court to be awarded in line with the Court’s case-law. 13. Having regard to all materials in the case file, the Court finds it reasonable to award the sixth applicant EUR 500 each, plus any tax that may be chargeable. 14. 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. Takes note of the friendly settlement reached between the Government and the first five applicants; 2. Decides to strike the application out of its list of cases in so far as it relates to the complaints of the first five applicants in accordance with Article 39 of the Convention; 3. Declares the remainder of the application admissible; 4. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention with regard to the sixth applicant; 3. Holds (a) that the respondent State is to pay the sixth applicant, Ms Mária Terézia Oszter, within three months the following amounts, to be converted into Hungarian forints at the rate applicable at the date of settlement: (i) EUR EUR 6,100 (six thousand one hundred euros), plus any tax that may be chargeable, in respect of pecuniary and non-pecuniary damage; and (ii) EUR 500 (five hundred euros), plus any tax that may be chargeable to the applicant, 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 14 June 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıKrzysztof WojtyczekDeputy RegistrarPresident

THIRD SECTION CASE OF GRBIĆ v. SERBIA (Application no. 5409/12) JUDGMENT STRASBOURG 23 October 2018 This judgment is final but it may be subject to editorial revision. In the case of Grbić v. Serbia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Pere Pastor Vilanova, President,Branko Lubarda,Georgios A. Serghides, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 2 October 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 5409/12) against Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Serbian national, Mr Rajko Grbić (“the applicant”), on 3 October 2011. 2. The applicant was represented by Mr N. Kosanović, a lawyer practising in Bečej. The Serbian Government (“the Government”) were represented by their Agent, Ms. N. Plavšić. 3. On 1 December 2016 the complaint under Article 6 § 1 was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. 4. The Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejects it. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1962 and lives in Bečej, where he was employed as a police officer. 6. On 24 January 2003 the Bečej Municipal Court (“the Municipal Court”) started judicial investigation proceedings against the applicant for the alleged commission of a number of criminal offences concerning the performance of his duties. 7. On 26 May 2003 the competent directorate of the Ministry of Interior dismissed the applicant from the police force (effective as of 30 May 2003). The decision noted that the criminal proceedings had been instituted against the applicant and that Article 45, in conjunction with Article 34 (1)(2), of the Ministry of Interior Act 1991, which was in force at the time of the dismissal, should be applied. According to this provision a police officer could be dismissed, at the discretion of the Ministry of Interior, if he no longer met the requirements for being a police officer, which included the requirement that criminal proceedings of a particular type should not be pending against him. The applicant lodged an appeal against this decision, but on 30 June 2003 his appeal was rejected and the dismissal thus confirmed. 8. On 23 July 2003 the applicant lodged a claim with the Municipal Court seeking his reinstatement. 9. On 31 October 2003 the Municipal Court partly discontinued the criminal proceedings against the applicant based on the applicable procedural prescription period. 10. On 12 November 2003 the remainder of the criminal proceedings were discontinued because the public prosecutor had withdrawn the charges. 11. On 30 December 2003 the Municipal Court annulled the decision on the applicant’s dismissal of 26 May 2003 by partial judgment, establishing that everyone charged with a criminal offence should be presumed innocent until proven guilty by a court of law, and that a broad interpretation of Article 45 of the Ministry of Interior Act 1991 in regards to the persons who were not found guilty could be only to their detriment. 12. On 17 June 2004 the Novi Sad District Court (“the District Court”) upheld this judgment. The applicant’s former employer thereafter submitted an appeal on points of law. 13. In the meantime, the applicant was reinstated to his previous post by decision of the Ministry of Interior of 13 January 2005. The decisions of 26 May and 30 June 2003 were also repealed. 14. On 9 March 2005, however, the Supreme Court upheld the appeal on points of law, reversed the judgments of 30 December 2003 and 17 June 2004 and rejected the applicant’s claim for reinstatement. It found that the dismissal of 26 May 2006 had been in accordance with the Article 45, read in conjunction with Article 34 (1)(2) of the Ministry of Interior Act 1991, and that the mere fact that the criminal proceedings had been pending against the applicant was sufficient reason for the applicant’s dismissal. 15. On 4 July 2005 the applicant was thus again dismissed from his job, which decision was upheld on 11 August 2005 by the Minister of Interior. 16. On 4 August 2005, the applicant brought another set of the proceedings for the annulment of his second dismissal. However, the Municipal Court, the District Court and the Supreme Court, by their judgments of 27 October 2005, 10 May 2007 and 18 December 2007, respectively, all ruled against him and upheld his dismissal on the basis of Article 45, read in conjunction with Article 34 (1)(2), of the Ministry of Interior Act 1991. 17. On 14 March 2008 the applicant lodged an appeal with the Constitutional Court concerning the outcome, fairness and the length of the civil proceedings concerning his dismissal, the right to be presumed innocent until proven guilty and the “right to work”. 18. On 17 February 2011 the Constitutional Court rejected the applicant’s appeal. In regards to the court judgments of 31 October 2003, 17 June 2004 and 9 March 2005 the Constitutional Court established that the his complaints were inadmissible ratione temporis given that the Serbian Constitution had come into force on 8 November 2006, i.e. after the first set of the proceedings concerning the applicant’s dismissal. On the other hand, with respect to the judgments of 27 October 2005, 10 May and 18 December 2007, the Constitutional Court found that they were not arbitrary, and upheld the legality of the applicant’s second dismissal on the basis of Article 45, read in conjunction with Article 34 (1)(2), of the Ministry of Interior Act 1991. In the Constitutional Court’s view, the fact that the applicant was ultimately dismissed on 4 July 2005, instead of on 26 May 2003, was only in the applicant’s favour, and that fact alone could not affect the legality of his “dismissal as such”. 19. Before this on 19 January 2011, the Constitutional Court rendered a decision in the case of Stefanović v. Serbia (UŽ 753/2008), concerning the same legal issue in which it ruled in favour of the appelant in that case (see Milojević and Others v. Serbia, nos. 43519/07 and 2 others, §§ 36-37, 12 January 2016). II. RELEVANT DOMESTIC LAW AND PRACTICE 20. The relevant domestic law and practice is set out in the Milojević case (see Milojević, cited above, §§ 31-37). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 21. The applicant complained that the decisions of the domestic authorities in civil proceedings regarding his dismissal were arbitrary and lacked sufficient reasons. He relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows: “1. In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly...” A. Admissibility 1. As regards the compatibility of the applicant’s complaint ratione materiae 22. The Government stated that the decision of 4 July 2005 and the courts’ decisions adopted thereafter were only of a declaratory character, as they only confirmed the legality of the original dismissal of 26 May 2003. As a consequence, the said decisions were not directly decisive for the civil rights and obligations of the applicant, and Article 6 § 1 could not be therefore applied in the present case. 23. The applicant maintained that Article 6 § 1 was applicable. 24. The Court observes that the applicant was dismissed from the police force only by decision of 4 July 2005, which outcome was thus decisive for the exercise of his civil rights and triggered the subsequent court proceeding, wherein the courts themselves never questioned this decisiveness even though they ultimately ruled against the applicant. The Court, therefore, dismisses the Government’s objection in this regard. 2. As regards the exhaustion of domestic remedies 25. The Government submitted that neither the applicant’s second claim (see paragraphs 15-16) nor the ensuing constitutional appeal constituted effective remedies in the present case. In the Government’s view, the applicant should have submitted his application following the judgment of the Supreme Court of 9 March 2005, as the applicants did in the Milojević case (cited above), and that the applicant’s failure to do so amounted to the application being submitted out of time. 26. The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention requires applicants first to use the remedies provided by the national legal system, thus dispensing States from answering before the Court for their acts before they have had an opportunity to put matters right through their own legal system. The burden of proof is on the Government claiming non-exhaustion to satisfy the Court that an effective remedy was available in theory and in practice at the relevant time; that is to say, that the remedy was accessible, capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (see, inter alia, T. v. the United Kingdom [GC], no. 24724/94, § 55, 16 December 1999; and Vinčić and Others v. Serbia, nos. 44698/06 and 30 others, § 49, 1 December 2009). 27. As regards legal systems which provide constitutional protection for fundamental human rights and freedoms, such as the one in Serbia, the Court recalls that it is incumbent on the aggrieved individual to test the extent of that protection (see, inter alia, Mirazović v. Bosnia and Hercegovina (dec.), no. 13628/03, 16 May 2006; and Vinčić, cited above, § 51). With this in mind, given the power of the Serbian Constitutional Court as evidenced through its case-law, the Court established that a constitutional appeal should, in principle, be considered as an effective domestic remedy within the meaning of Article 35 § 1 of the Convention in respect of all applications introduced as of 7 August 2008, that being the date when the Constitutional Court’s first decisions on the merits of the said appeals had been published in the respondent State’s Official Gazette (see Vinčić, cited above, § 51). 28. In any case, the Court reiterates, an individual is not required to try more than one avenue of redress when there are several available. It is for the applicant to choose the legal remedy that is most appropriate in the circumstances of the case (see, among other authorities, Airey v. Ireland, 9 October 1979, § 23, Series A no. 32, Boicenco v. Moldova, no. 41088/05, § 80, 11 July 2006, and Borzhonov v. Russia, no. 18274/04, § 54, 22 January 2009). 29. Turning to the facts of the present case, the Court firstly notes that the decision of 4 July 2005 contained an instruction on a legal remedy to be pursued (pouka o pravnom leku). According to this instruction the applicant could submit an objection against the decision within eight day from service, and he had in fact done so. Had the applicant not made use of this opportunity, this omission would have amounted to the non-exhaustion of domestic remedies. 30. Secondly, the Court notes that the applicant lodged his application with the Court on 3 October 2011. This was after 7 August 2008, and because the issue of whether domestic remedies have been exhausted is normally determined by reference to the date when the application was lodged (see Vinčić, cited above, § 51), the Court considers that the applicant had indeed had an obligation to exhaust this particular avenue of redress before turning to Strasbourg and that he had effectively done so. In these circumstances, as well as given the Court’s finding in paragraph 24 above, the Government’s objection concerning the exhaustion of domestic remedies must be dismissed. 3. Other admissibility issues 31. The Court otherwise considers that the applicant’s 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 32. The applicant submitted that the his former employer had misapplied the relevant domestic law, that the decision of 4 July 2005 had been unfounded, that the subsequent court judgments in the civil proceedings had been arbitrary and had lacked sufficient reasoning, and that the Constitutional Court had arbitrarily upheld such reasoning. The applicant pointed out that his case had been almost identical, both factually and legally, as certain other cases considered by the Constitutional Court (see paragraph 18 above; also see Milojević, cited above, §§ 36-37) and that the same principles should have been applied in his case, as well. 33. The Government disagreed. They claimed that the applicant’s dismissal was lawful and based on the Ministry of Interior Act 1991, and that the impugned court judgments were clearly and sufficiently reasoned in regards to the applicant’s dismissal. Further, the Government stated that the case-law referred to in the Milojević case could not be applied in the instant case, in view of different circumstances of this case and the different temporal context. 34. The Court reiterates that according to its established case-law, reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (see Ruiz Torija v. Spain and Hiro Balani v. Spain, 9 December 1994, §§ 27, 29, Series A nos. 303-A and 303-B; Higgins and Others v. France, 19 February 1998, § 42, Reports 1998-I; and Milojević, cited above, § 83). Although Article 6 § 1 obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument of the parties involved (see Van de Hurk v. the Netherlands, 19 April 1994, § 61, Series A no. 288; Milojević, cited above). When applying legal rules lacking in precision, however, the domestic courts must show particular diligence in giving sufficient reasons as to why such a rule was applied in a particular manner, given the circumstances of each specific case. Merely citing the language of the imprecise provision cannot be regarded as sufficient reasoning (see H. v. Belgium, 30 November 1987, § 53, Series A no. 127‑B; and Milojević, cited above). 35. The Court has already dealt with the quality of the legal provision on the ground of which the applicant was dismissed and the conduct of the domestic courts in applying this provision (see Milojević, cited above, §§ 32-33, 65-68, 84). Also, the Court established that the Constitutional Court had already had an opportunity to deal with cases raising substantially identical issues to those brought by the applicant before this Court wherein it concluded that both the law, on the basis of which the applicants had been dismissed, and the judicial decisions, which were identical to those rendered in the applicant’s case, had been arbitrary and in violation of the right to a fair trial (see Milojević, cited above, § 84). In regards to the Government’s objection as to the different temporal context, the Court notes that the only difference between this case and Milojević is that the applicants in Milojević referred to the Court immediately after being dismissed, whereas the applicant in present case tried and exhausted all domestic remedies he had at his disposal (see paragraph 29). The legal grounds on which the applicant got dismissed from the police force remain the same as in Milojević case. Therefore, in light of almost identical factual and legal circumstances of the cases, the Court sees no reason to depart from its findings adopted in the Milojević. There has accordingly been a violation of Article 6 § 1 of the Convention of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 36. 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 37. The applicant claimed 36,465 euros (EUR) in respect of pecuniary damage, comprised of salary arrears and pensions which he “would have earned” had he continued working as a police officer, and EUR 5,000 in respect of non-pecuniary damage. 38. The Government maintained that the amounts claimed in respect of pecuniary and non-pecuniary damages were excessive. Also, the Government deemed that there was no causal link between a potential violation of Article 6 § 1 and the pecuniary damage. 39. With regard to pecuniary damage, the Court finds that the applicant’s just satisfaction claim is unsubstantiated. Specifically, the applicant failed to provide the Court with an adequate explanation as to why he was unable to find other employment or could not secure another source of labor-related income, which would have been of particular significance for the proper calculation of the pecuniary damage sought. The Court therefore rejects the applicant’s claim for pecuniary damage. 40. With regard to non-pecuniary damage, the Court considers that the applicant must have suffered distress and anxiety on account of the violation found. Ruling on an equitable basis, it awards the applicant EUR 2,400 in respect of non-pecuniary damage. B. Costs and expenses 41. The applicant also claimed EUR 9,275 for the costs and expenses incurred before the domestic courts and the Court itself. In support of these claims the applicant submitted a calculation sheet and requested that the award should be paid directly to his lawyer, Mr N. Kosanović, whom he authorised to receive this sum. 42. The Government contested this claim as unsubstantiated and insufficiently specified. 43. 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 (Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000‑XI; Milojević, cited above, § 98). That is, the applicant must have paid them, or be bound to pay them, pursuant to a legal or contractual obligation, and they must have been unavoidable in order to prevent the violation found or to obtain redress. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,700 covering costs under all heads, to be paid directly to the applicant’s legal representative Mr N. Kosanović (see Hajnal v. Serbia, no. 36937/06, § 154, 19 June 2012). C. Default interest 44. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay, within three months, the following amounts: (i) to the applicant EUR 2,400 (two thousand four hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, and (ii) directly to the applicant’s representative EUR 1,700 (one thousand seven hundred euros), plus any tax that may be chargeable on this amount, in respect of costs and expenses; (b) that the amounts specified above shall be converted into the national currency of the respondent State at the rate applicable at the date of settlement; (c) 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; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 23 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıPere Pastor VilanovaDeputy RegistrarPresident

FIRST SECTION CASE OF YEVGENIY ALEKSEYENKO v. RUSSIA (Application no. 41833/04) JUDGMENT STRASBOURG 27 January 2011 FINAL 27/04/2011 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Yevgeniy Alekseyenko v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Anatoly Kovler,Khanlar Hajiyev,Dean Spielmann,Giorgio Malinverni,George Nicolaou, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 6 January 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 41833/04) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Yevgeniy Yuryevich Alekseyenko (“the applicant”), on 2 December 2003. 2. The applicant, who had been granted legal aid, was represented by Ms Y. Yefremova and Ms K. Moskalenko, lawyers practising in Moscow. The Russian Government (“the Government”) were initially represented by Mrs V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their Representative, Mr G. Matyushkin. 3. The applicant alleged, in particular, that he had been detained in appalling conditions in the Izhevsk detention facility from 30 January 2002 to 16 July 2004, that he had contracted tuberculosis in detention and had not been provided with adequate medical assistance in the facility, that he had been subjected to ill-treatment by warders and had not benefited from an effective investigation into the events, that the criminal proceedings against him had been excessively long, that there had been no remedy for the violation of his right to trial within a reasonable time, and that the authorities had interfered with his right of individual petition. 4. On 5 July 2007 the President of the First Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). 5. On 28 April 2008 the Judge appointed as rapporteur requested the Government pursuant to Rule 49 § 2 of the Rules of Court to submit factual information concerning the alleged interference with the applicant's right of individual petition. 6. The Government objected to the joint examination of the admissibility and merits of the application. Having examined the Government's objection, the Court dismissed it. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1972 and lived until his arrest in the town of Kuybyshev in the Novosibirsk Region. He is now serving his prison sentence in a correctional colony in the Novosibirsk Region. A. Criminal proceedings against the applicant 8. On 12 October 2001 the Kuybyshev Town Court found the applicant guilty of having threatened a person with murder and sentenced him to a suspended term of one year's imprisonment. 9. In December 2001 the applicant was arrested on suspicion of manslaughter. On 24 April 2002 the Supreme Court of the Udmurtiya Republic found the applicant guilty of unintentional manslaughter and aggravated disorderly behaviour and sentenced him to thirteen years' imprisonment. B. New set of criminal proceedings against the applicant 10. On 16 January 2002 criminal proceedings were instituted against the applicant on suspicion of robbery. On an unspecified date the criminal charges against him were amended: he was charged with several counts of aggravated robbery, unlawful possession and manufacturing of weapons, car hijacking and theft of identification documents. 11. On 17 June 2002 the applicant was served with the bill of indictment. A month later the pre-trial investigation was completed and the applicant was committed to stand trial before the Supreme Court of the Udmurtiya Republic. 12. On 5 August 2002 the Supreme Court fixed a preliminary hearing for 13 August 2002. At that hearing the Supreme Court returned the case to a prosecutor's office for five days, finding that the applicant had been served with an illegible copy of the bill of indictment. The following preliminary hearing was fixed for 30 September 2002. That hearing was rescheduled for 3 December 2002 because the applicant was participating in a hearing before another court. 13. On 3 December 2002 the Supreme Court remitted the case to the prosecutor's office for the drafting of a new bill of indictment. It noted that the bills of indictment which had been served on the defendants did not include the list of evidence on which the prosecution grounded their accusations. The following preliminary hearing scheduled for 4 January 2003 was adjourned because two counsel for the defendants had failed to attend. 14. From 13 to 20 January 2003 the Supreme Court held four preliminary hearings. At the hearing on 20 January 2003 the applicant unsuccessfully sought the removal of the entire bench, alleging that the judges could have been influenced by various publications concerning his case. 15. On 20 January 2003 the Supreme Court fixed the first trial hearing for 18 February 2003. The applicant and his co-defendants were to be tried by a jury. 16. On 19 February 2003 the Supreme Court remitted the case to the prosecutor's office for correction of defects in the bill of indictment. At the beginning of March 2003 the prosecutor's office returned the case file to the Supreme Court and the first preliminary hearing was fixed for 19 March 2003. At that hearing the prosecution dropped certain charges against the defendants and the Supreme Court transferred the case to the Industrialniy District Court of Izhevsk, which acquired subject-matter jurisdiction. The applicant was to be tried by professional judges. The District Court fixed a preliminary hearing for 29 April 2003. 17. At the hearing of 29 April 2003 the District Court remitted the case file to the prosecutor's office because a defendant, Mr H., had been served with an illegible copy of the bill of indictment. On 19 May 2003 Mr H. received the bill of indictment and on 4 June 2003 the District Court fixed a preliminary hearing for 11 June 2003. However, the hearing fixed for 11 June 2003, as well as that listed for 19 June 2003, was adjourned in view of counsel's failure to attend. 18. On 3 July 2003 the District Court held the first trial hearing. At the following hearing on 7 July 2003 the applicant requested the District Court to dismiss his counsel, Mr Ch., from the proceedings owing to the fact that their positions regarding the defence strategy did not coincide. Of the six hearings listed between 14 July and 15 September 2003, three were adjourned because the defendants were ill, two were rescheduled because counsel Ch. had refused to represent the applicant and had not attended, and two were annulled because witnesses defaulted. On 9 September 2003 the District Court appointed Mr B. to act as the applicant's counsel. As shown by the Government's submissions, some time later the applicant refused Mr B.'s services and on 16 December 2003 Ms Zh. was assigned to the case as the applicant's representative. Between 5 March and 21 April 2004 the defendants and their lawyers studied the case-file materials. 19. In the meantime, at a hearing of 12 April 2004 the applicant unsuccessfully sought the dismissal of his counsel, Ms Zh., from the proceedings. Ms Zh. did not attend the two subsequent hearings, on 21 and 27 April 2004, and did not inform the District Court about the reasons for her absence. On 12 May 2004 the District Court appointed Ms G. to act as the applicant's counsel and stayed the proceedings until 24 May 2004 to allow the applicant's new lawyer to familiarise herself with the case. 20. On 9 June 2004, having received the applicant's petition for a dismissal of his counsel, Ms G., from the case, the District Court stayed the proceedings until 29 June 2004. On 2 July 2004 Ms G. successfully asked the District Court to be released from her duty as the applicant's representative. Two weeks later Mr S. was assigned the task of representing the applicant. The District Court granted a two-week stay in the proceedings for Mr S. to read the case file and develop the defence strategy with the applicant. 21. According to the parties, between 17 August 2004 and 25 January 2005 the District Court scheduled and held hearings at regular intervals. 22. On 25 January 2005 the Industrialniy District Court of Izhevsk found the applicant guilty of several counts of aggravated robbery and car hijacking and sentenced him to seventeen years and six months' imprisonment. The District Court acquitted the applicant of the remaining charges. 23. On 27 September 2005 the Supreme Court of the Udmurtiya Republic amended the judgment, reducing the applicant's sentence to seventeen years' imprisonment. C. Conditions of the applicant's detention 24. The applicant complained about the conditions of his detention in temporary detention facility no. IZ-18/1 in Izhevsk from 30 January 2002 to 16 July 2004. 25. Relying on submissions by the three inmates who had been detained in facility no. 1 in Izhevsk, the applicant alleged that he had been detained in severely overcrowded cells. Having indicated the average number of inmates for each cell in which he had been detained and the number of sleeping places, the applicant argued that he had usually had less than two square metres of personal space. Given the lack of beds, inmates had slept in shifts. They were not provided with bedding. 26. The applicant further submitted that the sanitary conditions had been appalling. The cells were infested with insects but the management did not provide any insecticide. The walls in the cells were covered with a thick layer of mould. The applicant submitted that the windows were covered with metal blinds which blocked access to natural light and air. The artificial ventilation system did not function. It was impossible to take a shower as inmates were given only fifteen minutes and several men had to use one shower-head at the same time. That situation was further aggravated by the fact that the applicant frequently missed a “bathing day” if he had to take part in a hearing before the court. For instance, he was denied an opportunity to shower for two months in December 2003 and January 2004. Inmates had to wash and dry their laundry indoors, creating excessive humidity in the cells. They were also allowed to smoke in the cells. In the majority of the cells the lavatory pan was not separated from the living area by a small partition. However, even if a small partition was installed, it did not afford any privacy. In fact, at no time did inmates have complete privacy. Anything they happened to be doing – using the toilet, sleeping – was in view of the guard or fellow inmates. No toiletries were provided. The food was of poor quality and in scarce supply. Inmates were afforded an hour of outdoor recreation per day. 27. According to certificates issued on 27 August 2007 by a deputy director of the facility and produced by the Government, the applicant was kept in eighteen different cells measuring from 6 to 37.3 square metres. The Government submitted that, given the average number of inmates which had been detained together with the applicant and the size of the cells, the applicant had never been afforded less than four square metres of personal space. They further noted that at all times he had had an individual bunk and bedding. 28. Relying on the information provided by the deputy director of the facility, the Government further argued that the sanitary conditions in the cells were satisfactory. In particular, they submitted that the cells received natural light and ventilation through one or two windows each measuring no less than one square metre. Each cell was equipped with a lavatory pan separated from the living area by a one-metre-high partition, a sink, a tap with running water, bunks and a table. Inmates were allowed to take a shower once every seven days for no less than fifteen minutes. Clean bedding was also provided once a week. The cells were disinfected. The Government, relying on the information provided by the deputy director of the facility, further stated that the applicant was given food “in accordance with the established norms”. D. Contraction of tuberculosis and quality of medical assistance in detention 29. On 30 January 2002, on his admission to detention facility no. IZ-18/1, the applicant was examined by the prison doctor and given a chest fluorography examination, which revealed no signs of tuberculosis. According to the Government, between February 2002 and June 2004 the applicant was subjected to three fluorography tests. The most recent fluorography test in the series performed on 20 February 2004 revealed no pathology in the applicant's lungs. On 20 June 2004, in the course of a medical check-up, also involving an X-ray examination, tuberculosis changes in the applicant's lungs were detected. That finding was confirmed by another radiography test performed on 25 June 2004. 30. On 16 July 2004 the applicant was transferred to prison tuberculosis hospital no. 4 in the Udmurtiya Republic. Following a number of medical analyses carried out in the hospital he was diagnosed with infiltrative tuberculosis (“TB”) of the left lung in the disintegration stage. A number of sputum smear tests performed in the hospital showed that the applicant was smear-negative. On 23 July 2004 the applicant was released from the hospital, having failed to comply with the hospital's internal regulations. He was, however, prescribed continuation of the treatment started in the hospital under intensive chemotherapy regimen and comprising a number of drugs: isoniazid, pyrazinamide, rifampicin, ethambutol, antihistamines, etc. (so-called “2HRZE” regimen). The applicant was transferred to the medical unit of detention facility no. 18/1. 31. As shown by a copy of the applicant's medical record produced by the Government, during the initial stage of the treatment the applicant adhered to a strict medication regime, having received prescribed doses of anti-bacteriological medicines. An intake of every dose was observed by the facility medical staff. Attending tuberculosis specialists examined the patient on a regular basis, sometimes daily, to react to his concomitant complaints about the state of his health and to identify whether a correction of the drug regimen was necessary. Clinical blood and urine analyses, sputum monitoring, as well as regular chest radiography and liver examinations, were conducted regularly. In the first few months of the treatment the doctors already noted a positive dynamic in the clinical TB symptoms. 32. On the completion of the intensive phase of the treatment, the continuation phase of the therapy commenced, accompanied by a special dietary ration. That phase of the treatment ended in March 2005. 33. The applicant's medical history contained a number of entries made by attending tuberculosis specialists, recording the applicant's negative attitude towards the treatment, his refusal to take anti-bacteriological medicines and his decisions to go on a hunger-strike. The attending doctors had conversations with the applicant, persuading him to continue the treatment and warning about negative effects of treatment interruption and fasting. 34. Following medical examinations of the applicant in April and May 2005 it was established that the infiltrative tuberculosis had gone into the resolution stage. Recommendations to continue treatment on a reduced chemotherapy regimen were made and followed through. 35. On 14 October 2005 the applicant was examined by a medical panel comprising a number of specialists. Having studied his medical history, including results of the most recent X-ray examinations, blood and urine analysis and sputum smear tests, the panel issued the following diagnosis: “clinical recovery from infiltrative tuberculosis”. The applicant's medical record shows that he continued to remain under close medical supervision, undergoing necessary medical testing and being prescribed seasonal retreatment chemotherapy courses to prevent relapse of the illness. E. Events of 10 July 2003 and investigation into alleged ill-treatment by warders 36. According to the applicant, at a trial hearing on 9 July 2003 he informed the Industrialniy District Court of his intention to waive his right to attend hearings and participate in the trial because the trial court was impartial and violated his rights as a defendant. On the following day warders attempted to take the applicant to the courthouse. He agreed to proceed to a prison van but informed the warders about his refusal to take part in the hearing. After the van had arrived at the courthouse, the applicant refused to leave it. The warders dragged him out of the van, accompanying their actions with kicks and blows. After the District Court had recessed for lunch, the applicant was taken back to facility no. IZ-18/1. After lunch the applicant was driven to the courthouse. He again refused to leave the prison van. A warder tried to force the applicant out of the van and, in response to the applicant's resistance, hit him with handcuffs on the head. The applicant's forehead started bleeding. He was taken to a warder's office, where he remained until approximately 5 p.m. On arrival back at the detention facility in the evening of 10 July 2003 the applicant was examined by a prison doctor, who recorded a laceration on his forehead. No other injuries were discovered during the examination. 37. The Government provided the following version of events. On 10 July 2003 the applicant and another inmate, Mr H., refused to leave a prison van to take part in a trial hearing. Acting on an order from the presiding judge, warders, Mr K., Mr P., Mr I. and Mr Ka., used physical force and handcuffs to ensure the defendants' presence in the courtroom. The applicant resisted, hit and kicked a warder. He slipped, having fallen in the van and injured his head. In the evening of the same day the applicant was examined by a prison doctor in facility no. IZ-18/1. A laceration measuring four millimetres in length and two millimetres in depth covered by a crust of dried blood was recorded on his forehead. 38. On 11 July 2003 the applicant complained to the Prosecutor of the Udmurtiya Republic alleging that the warders had hit him on the head on 10 July 2003 in response to his refusal to leave the prison van. He asked the prosecutor to initiate an investigation into the events and consider the warders criminally liable. Having provided the Court with a copy of the applicant's complaint to the prosecutor, the Government submitted that the applicant had never asked for criminal proceedings to be brought against the warders. The Government also produced a copy of the applicant's co-defendant's complaint to the prosecutor's office. The co-defendant alleged that warders had threatened him with violence and that he perceived those threats as real because the warders had already beaten the applicant up on 10 July 2003, causing him a head injury. 39. On 11 July 2003 the applicant was examined by experts of the Forensic Medical Expert Bureau of the Udmurtiya Republic, who confirmed the findings of the prison doctor. The experts concluded that the head injury was minor, that the applicant had been afforded necessary medical assistance and that he did not require placement in a hospital. 40. The head of the warders' service issued a written report describing the events of 10 July 2003. Without providing any details, he stated that the applicant had refused to leave the prison van and had injured his forehead inside the vehicle. 41. An investigator of the Industrialniy District prosecutor's office interviewed the applicant about the events of 10 July 2003. As shown by a copy of the interview record submitted by the Government, the applicant testified that in the morning of 10 July 2003 the warders had grabbed him by the hands to force him out of the prison van. In the afternoon of the same day, when the warders had again ordered him to leave the van, the applicant had attempted to bite a warder. The latter responded by hitting the applicant on the head with handcuffs, cutting his forehead open. The investigator also interrogated inmate H., who had been in the prison van during the alleged beatings, the applicant's lawyer and a co-defendant, Mr S. Mr H. corroborated the applicant's account of events, noting that a warder had placed handcuffs on his fist in a knuckle-duster manner and hit the applicant on the forehead. Mr S. testified that on 10 July 2003 he had seen the applicant in a courtroom. His forehead was bleeding. The lawyer confirmed seeing an injury on the applicant's forehead. 42. The investigator also questioned the warders who had witnessed the events of 10 July 2003. The warders testified that on arrival at the courthouse the applicant and Mr H. had started acting aggressively, having refused to leave the van. The applicant had given a warder a head-butt and had attempted to hit and kick other warders. The warders had lifted the applicant and Mr H. and carried them to the courthouse. In the courtroom the applicant and Mr H. had screamed obscenities, thrown personal belongings at the warders and threatened them with violence. Similar events had occurred again in the afternoon when the applicant had injured his forehead and had refused to leave the prison van. 43. On 8 August 2003 the investigator issued a decision, finding that the warders' actions had constituted a lawful response to the applicant's improper behaviour. The applicant was provided with a copy of the decision and with an opportunity, following his request, to study materials from the prosecution investigation. 44. On 9 December 2003 the Industrialniy District Court, on the applicant's request, quashed the decision of 8 August 2003 finding that it was premature because the investigator had not questioned all witnesses who had been present when the applicant had been injured. The District Court ordered an additional investigation. 45. Having once again interviewed the warders, the applicant and inmate H., on 15 June 2004, the investigator refused to institute criminal proceedings against the warders, finding no prima facie case of ill-treatment. The participants in the events of 10 July 2003 did not amend their previous statements, save for the applicant, who added that in addition to a head injury the warder had cut his lip. The investigator concluded that the use of force against the applicant had been necessary and had been the result of his unlawful behaviour. 46. On 29 November 2004 the Ustinovskiy District Court of Izhevsk quashed the decision of 15 June 2004 and sent the case for additional investigation. The relevant part of the decision read as follows: “After having heard the parties to the proceedings and having examined the case file, the court considers that [the applicant's] claims are substantiated and should be upheld on the following grounds. The decision of the investigator, Mr N., is based on the conclusion that the use of physical force against [the applicant] was caused by his unlawful behaviour and was conducted in accordance with orders and instructions of the Ministry of Internal Affairs of the Udmurtiya Republic, as a result of which [the investigator] refused to institute criminal proceedings in accordance with Article 24 § 1 (2) of the Code of Criminal Procedure of the Russian Federation – absence of criminal conduct. At the same time, as shown by the decision of the investigator, Mr N., [the applicant], in fact, sustained an injury; however, the person who had caused that damage was not established. The investigator only refers in his decision to statements by the warders who had participated in escorting [the applicant], and who had used the following formula: “a member of the warders' team”, in order to describe the person who had injured [the applicant], without referring to the particular individual.” 47. On 7 February 2005 the investigator dismissed the applicant's complaint against the warders, finding that the applicant had been injured as a result of his unlawful behaviour in the prison van. That decision was quashed on 18 April 2005 by the Ustinovskiy District Court, which concluded that the investigation was “incomplete” as the investigator had not questioned all the warders who had taken the applicant to the courthouse after lunch and had not established whether the applicant could have hurt himself as had been stated by the warders. 48. On 4 July 2005 the investigator issued a decision finding no criminal conduct in the warders' actions. The decision was based on statements by the entire staff of the warders' service. In particular, warder B. testified that on 10 July 2003 the applicant and inmate H. had resisted lawful orders, had refused to leave the prison van and had several times hit warder P. The warders had used force, lifted the applicant and carried him to a courtroom. The applicant had used offensive language, threatened the warders and spat on them. On the same day, warders who had escorted the applicant to the courthouse after lunch had told Mr B. that the applicant had injured his forehead in the prison van. When the applicant and inmate H. had been taken back to the detention facility after the hearing, the warders had used force and handcuffed them to prevent unlawful behaviour. The applicant had not had any visible injuries. Warder K. confirmed the statements given by warder B. Warder I. stated that he had escorted the applicant from the detention facility to the prison van. The applicant had not had any visible injuries. After the applicant had refused to leave the prison van, the warders had reported this to a judge. The judge had ordered that the applicant be brought to the courthouse against his will. The applicant had refused to leave the van and the warders had forced him out. Warder I. testified that the applicant had blood on his face. Warder P. explained that on 10 July 2003, in the morning, the applicant had hit him several times in the prison van. The warders who had taken the applicant to the courthouse after lunch had told Mr P. that the applicant had hit his head against the door of the prison van. The investigator noted that the applicant's injury had been “acquired as a result of his unlawful behaviour in the Industrialniy District Court of Izhevsk and in the prison van... That conclusion was corroborated by the injuries received by warder P.” 49. On 18 October 2005 the Ustinovskiy District Court upheld the decision of 4 July 2005, having found that the prosecution investigation had been meticulous, objective and thorough. The District Court noted that the investigator had heard eyewitnesses, had authorised a medical examination of the applicant and of the warder who had been injured by the applicant, and had assessed the warders' actions and those of the applicant on the basis of the evidence before him and the requirements of the domestic legal norms. 50. In the spring of 2006 the applicant, who had been duly served with a copy of the District Court's judgment on 20 October 2005, appealed against it. However, the leave to appeal was rejected because the applicant had missed the ten-day time-limit stipulated by Russian law. F. Assault in December 2001 and criminal proceedings 51. According to the applicant, on 7 December 2001 a police patrol had found him in a street. He had been severely beaten up by unidentified individuals. The police had taken him to a nearby police station and later to a hospital. Criminal proceedings were instituted, but they were closed on 31 August 2002 because the investigation had been unable to identify the perpetrators of the offence. G. Publications 52. The applicant complained that numerous articles had been published in the local press concerning the last set of criminal proceedings against him and his co-defendants. They had been referred to as “a gang of Mr Alekseyenko”. The applicant's attempts to institute criminal proceedings against the newspapers and reporters had been unsuccessful. 53. On 7 April 2008 the applicant's representative sent a letter to the Court alleging that following the communication of the case to the Government the applicant had been visited on a number of occasions by Ms I. Rassadina, the Ombudsman of the Udmurtiya Republic, who had urged him “to settle the case before the Court and to withdraw his application”. In return Ms Rassadina had allegedly promised that the applicant would be allowed to continue serving his sentence in the Udmurtiya Republic instead of being transferred back to a correctional colony in the Novosibirsk Region. 54. A letter from the applicant was attached to the representative's letter of 7 April 2008. The applicant submitted that the authorities had suggested that he sell his flat in Novosibirsk. The sale could have legitimised his stay in the Udmurtiya Republic as he would no longer have been resident in Novosibirsk. 55. In response to the Court's request for factual information, the Government submitted that on 20 and 22 August 2007 the applicant had had meetings with a high-ranking official of the Federal Service for Execution of Sentences in the Udmurtiya Republic, Ms I. Rassadina. The meetings had been organised on a request from the office of the Representative of the Russian Federation at the European Court of Human Rights to determine the applicant's position regarding a friendly settlement in the case. Relying on written statements from Ms Rassadina and the head of the detention facility, Mr Galiyev, the Government argued that during the first meeting held in Mr Galiyev's presence Ms Rassadina had interviewed the applicant about his terms for settling the case. The applicant had allegedly responded by putting forward one requirement, namely that he would continue to serve his sentence in the Udmurtiya Republic. On 22 August 2007, when Ms Rassadina arrived at the detention facility with the draft of the friendly settlement agreement, the applicant, without providing any further explanation, had refused to sign it. 56. In May 2008 the applicant was transferred to a correctional colony in the Novosibirsk Region. 57. On 19 September 2008 the Court received another letter from the applicant's representative in which she alleged that in July 2008 the authorities had delayed dispatching the applicant's two letters to the Court by approximately four days. Having been uncertain about the fate of those letters, the applicant gave copies to his wife during a conjugal visit several days later. At the same time the applicant was also allowed to have a short telephone conversation with his representative before the Court. 58. Copies of the applicant's letters were attached to his representative's letter of 19 September 2008. In those letters the applicant alleged that the conditions of his detention in the colony in the Novosibirsk Region were inferior to those in the detention facility in the Udmurtiya Republic and that his transfer to the Novosibirsk colony had been carried out merely for the sake of expedience. 59. The letters which the applicant allegedly sent directly to the Court in July 2008 have never been received. II. RELEVANT DOMESTIC LAW A. Health care of detainees 1. Federal Law of 18 June 2001 no. 77-FZ “On Prevention of Dissemination of Tuberculosis in the Russian Federation” Section 7. Organisation of anti-tuberculosis aid “1. Provision of anti-tuberculosis aid to individuals suffering from tuberculosis is guaranteed by the State and is performed on the basis of the principles of legality, compliance with the rights of the individual and citizen, [and] general accessibility in the amount determined by the Programme of State guarantees for provision of medical assistance to citizens of the Russian Federation, free of charge. 2. Anti-tuberculosis aid shall be provided to citizens when they voluntarily apply [for such aid] or when they consent [to such aid], save for cases indicated in Sections 9 and 10 of the present Federal law and other federal laws...” Section 8. Provision of anti-tuberculosis aid “1. Individuals suffering from tuberculosis who are in need of anti-tuberculosis aid shall receive such aid in medical anti-tuberculosis facilities licensed to provide [it]. 2. Individuals who are or have been in contact with an individual suffering from tuberculosis shall undergo an examination for the detection of tuberculosis in compliance with the laws of the Russian Federation...” Section 9. Regular medical examinations 1. Regular medical examinations of persons suffering from tuberculosis shall be performed in compliance with the procedure laid down by a competent federal executive body... 2. Regular medical examinations of persons suffering from tuberculosis shall be performed irrespective of the patients' or their representatives' consent. 3. A medical commission appointed by the head of a medical anti-tuberculosis facility... shall take decisions authorising regular medical examinations or terminating them and record such decisions in medical documents...; an individual in respect of whom such a decision has been issued, shall be informed in writing about the decision taken.” Section 10. Mandatory examinations and treatment of persons suffering from tuberculosis “2. Individuals suffering from contagious forms of tuberculosis who... intentionally avoid medical examinations aimed at detecting tuberculosis, or avoid treating it, shall be admitted, by court decision, to specialised medical anti-tuberculosis establishments for mandatory examinations and treatment.” Section 12. Rights of individuals.... suffering from tuberculosis “2. Individuals admitted to medical anti-tuberculosis facilities for examinations and (or) treatment, shall have a right to: receive information from the administration of the medical anti-tuberculosis facilities on the progress of treatment, examinations... have meetings with lawyers and clergy in private; take part in religious ceremonies, if they do not have a damaging impact on the state of their health; continue their education... 3. Individuals... suffering from tuberculosis shall have other rights provided for by the laws of the Russian Federation on health care...” Section 13. Obligations of individuals... suffering from tuberculosis “Individuals... suffering from tuberculosis shall; submit to medical procedures authorised by medical personnel; comply with the internal regulations of medical anti-tuberculosis facilities when they stay at those facilities; comply with sanitary and hygiene conditions established for public places when persons not suffering from tuberculosis [visit them].” Section 14. Social support for individuals... suffering from tuberculosis “4. Individuals... suffering from tuberculosis shall be provided with medication free of charge for out-patient treatment of tuberculosis by federal specialised medical facilities in compliance with the procedure established by the Government of the Russian Federation...” 60. Russian law gives detailed guidelines for the provision of medical assistance to detained individuals. These guidelines, found in joint Decree no. 640/190 of the Ministry of Health and Social Development and the Ministry of Justice, on Organisation of Medical Assistance to Individuals Serving Sentences or Detained (“the Regulation”), enacted on 17 October 2005, are applicable to all detainees without exception. In particular, section III of the Regulation sets out the procedure for initial steps to be taken by medical personnel of a detention facility on admission of a detainee. On arrival at a temporary detention facility all detainees must be subjected to preliminary medical examination before they are placed in cells shared by other inmates. The examination is performed with the aim of identifying individuals suffering from contagious diseases or in need of urgent medical assistance. Particular attention must be paid to individuals suffering from contagious conditions. No later than three days after the detainee's arrival at the detention facility, he should receive an in-depth medical examination, including fluorography. During the in-depth examination a prison doctor should record the detainee's complaints, study his medical and personal history, record injuries if present, and recent tattoos, and schedule additional medical procedures if necessary. A prison doctor should also authorise laboratory analyses to identify sexually transmitted diseases, HIV, tuberculosis and other illnesses. 61. Subsequent medical examinations of detainees are performed at least twice a year or at detainees' request. If a detainee's state of health has deteriorated, medical examinations and assistance should be provided by medical personnel of the detention facility. In such cases a medical examination should include a general medical check-up and additional methods of testing, if necessary, with the participation of particular medical specialists. The results of the examinations should be recorded in the detainee's medical history. The detainee should be fully informed of the results of the medical examinations. 62. Section III of the Regulation also sets the procedure for cases of refusals by detainees to undergo medical examination or treatment. In each case of refusal, a corresponding entry should be made in the detainees' medical record. A prison doctor should fully explain to the detainee the consequences of his refusal to undergo the medical procedure. 63. Detainees take prescribed medicines in the presence of a doctor. In a limited number of cases the head of the medical department of the detention facility may authorise his medical personnel to hand over a daily dose of medicines to the detainee for unobserved intake. 64. Section X of the Regulation regulates medical examinations, monitoring and treatment of detainees suffering from tuberculosis. It lays down a detailed account of medical procedures to be employed, establishes their frequency, and regulates courses of treatment for new tuberculosis patients and previously treated ones (relapsing or defaulting detainees). In particular, it provides that when a detainee exhibits signs of a relapse of tuberculosis, he or she should immediately be removed to designated premises (infectious unit of the medical department of the facility) and should be sent for treatment to an anti-tuberculosis establishment. The prophylactic and anti-relapse treatment of tuberculosis patients should be performed by a tuberculosis specialist. Rigorous checking of the intake of anti-tuberculosis drugs by the detainee should be put in place. Each dose should be recorded in the detainee's medical history. A refusal to take anti-tuberculosis medicine should also be noted in the medical record. A discussion of the negative effects of the refusal should follow. Detainees suffering from tuberculosis should also be put on a special dietary ration. 65. On 21 March 2003 the Ministry of Health adopted Decree no. 109 on Improvement of Anti-Tuberculosis Measures in the Russian Federation (“the Anti-Tuberculosis Decree” or “Decree”). Having acknowledged a difficult epidemic situation in the Russian Federation in connection with a drastic increase in the number of individuals suffering from tuberculosis, particularly among children and detainees, and a substantial rise in the number of tuberculosis-related deaths, the Decree laid down guidelines and recommendations for country-wide prevention, detection and therapy of tuberculosis which conform to international standards, identifying forms and types of tuberculosis and categories of patients suffering from them, establishing types of necessary medical examinations, analyses and testing to be performed in each case and giving extremely detailed instructions on their performance and assessment; it also laid down rules on vaccination, determined courses and regimens of therapy for particular categories of patients, and so on. 66. In particular, Addendum 6 to the Decree contains an Instruction on chemotherapy for tuberculosis patients. The aims of treatment, essential anti-tuberculosis drugs and their dose combinations, as well as standard regimens of chemotherapy laid down by the Instruction for Russian tuberculosis patients conformed to those recommended by the World Health Organisation in Treatment of Tuberculosis: Guidelines for National Programs (see below). B. Conditions of detention 67. Section 22 of the Detention of Suspects Act (Federal Law no. 103-FZ of 15 July 1995) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by the Government of the Russian Federation. Section 23 provides that detainees should be kept in conditions which satisfy health and hygiene requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell. C. Investigation into criminal offences 68. The Code of Criminal Procedure of the Russian Federation (in force since 1 July 2002, “the CCrP”) provides that a criminal investigation can be initiated by an investigator or a prosecutor upon a complaint by an individual or on the investigative authorities' own initiative, where there are reasons to believe that a crime has been committed (Articles 146 and 147). The prosecutor is responsible for the overall supervision of the investigation (Article 37). He or she can order specific investigative measures, transfer the case from one investigator to another or order an additional investigation. If there are no grounds upon which to initiate a criminal investigation, the prosecutor or investigator shall give a reasoned decision to that effect, which must be brought to the attention of the interested party. The decision is amenable to appeal to a higher-ranking prosecutor or to a court of general jurisdiction in accordance with a procedure established by Article 125 of the CCrP (Article 148). Article 125 of the CCrP provides for judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of parties to proceedings or prevent access to court. D. Authorities' response to alleged instances of ill-treatment in detention facilities 69. Russian law sets out detailed guidelines for the detention of individuals in temporary detention facilities. These guidelines are found in Ministry of Justice Decree no. 189 on Internal Regulations of Temporary Detention Facilities (“the Decree”), enacted on 14 October 2005. In particular, Section II of the Decree provides that an investigation should be carried out into the circumstances in which a detainee sustained injuries. Case-file materials drawn up as part of the investigation into the circumstances of a possible offence should be transferred to a prosecutor's office which has to take a decision on the institution or refusal to institute criminal proceedings in compliance with the requirements of the Russian Code of Criminal Procedure (paragraph 16 of section II). E. New remedy for a violation of the right to trial within a reasonable time 70. On 30 April 2010 the Russian Parliament enacted Federal Law no. 68-FZ “On Compensation for Violation of the Right to a Trial within a Reasonable Time or the Right to Enforcement of a Judgment within a Reasonable Time” (“the Compensation Act”). The Compensation Act entered into force on 4 May 2010. It provides that in case of a violation of the right to trial within a reasonable time, an individual is entitled to seek compensation for the non-pecuniary damage. Federal Law № 69-FZ, also enacted on 30 April 2010, introduced the pertinent changes to the Russian legislation. 71. Section 6.2 of the Compensation Act provides that all individuals who have complained to the European Court of Human Rights that their right to a trial within a reasonable time has been violated may claim compensation in domestic courts under the Act within six months of its entry into force, provided the European Court has not ruled on the admissibility of the complaint. 72. Section 73 of the Russian Code on the Execution of Criminal Sentences (no. 1-FZ adopted on 8 January 1997) provides that an individual sentenced to imprisonment, save in exceptional cases, should serve his sentence in correctional institutions in a region where he lived prior to conviction or where he was convicted. In exceptional cases, in view of poor health, for considerations of personal safety or with his consent, he may be sent to serve the sentence in a correctional institution in another region. If there is no corresponding correctional facility in the region where the individual resided or where he was convicted, he should be sent to a correctional institution in another region following consultations with higher-ranking authorities within the system for execution of criminal sentences. III. RELEVANT INTERNATIONAL REPORTS AND DOCUMENTS A. General health care issues 1. Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules, adopted on 11 January 2006 at the 952nd meeting of the Ministers' Deputies (“the European Prison Rules”) 73. The European Prison Rules provide a framework of guiding principles for health services. The relevant extracts from the Rules read as follows: “Health care 39. Prison authorities shall safeguard the health of all prisoners in their care. Organisation of prison health care 40.1 Medical services in prison shall be organised in close relation with the general health administration of the community or nation. 40.2 Health policy in prisons shall be integrated into, and compatible with, national health policy. 40.3 Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation. 40.4 Medical services in prison shall seek to detect and treat physical or mental illnesses or defects from which prisoners may suffer. 40.5 All necessary medical, surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose. Medical and health care personnel 41.1 Every prison shall have the services of at least one qualified general medical practitioner. 41.2 Arrangements shall be made to ensure at all times that a qualified medical practitioner is available without delay in cases of urgency. ... 41.4 Every prison shall have personnel suitably trained in health care. Duties of the medical practitioner 42.1 The medical practitioner or a qualified nurse reporting to such a medical practitioner shall see every prisoner as soon as possible after admission, and shall examine them unless this is obviously unnecessary. ... 42.3 When examining a prisoner the medical practitioner or a qualified nurse reporting to such a medical practitioner shall pay particular attention to: ..; b. diagnosing physical or mental illness and taking all measures necessary for its treatment and for the continuation of existing medical treatment; ... f. isolating prisoners suspected of infectious or contagious conditions for the period of infection and providing them with proper treatment; ... 43.1 The medical practitioner shall have the care of the physical and mental health of the prisoners and shall see, under the conditions and with a frequency consistent with health care standards in the community, all sick prisoners, all who report illness or injury and any prisoner to whom attention is specially directed. ... Health care provision 46.1 Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals when such treatment is not available in prison. 46.2 Where a prison service has its own hospital facilities, they shall be adequately staffed and equipped to provide the prisoners referred to them with appropriate care and treatment.” 2. 3rd General Report of the European Committee for the Prevention of Torture (“the CPT Report”) 74. The complexity and importance of health care services in detention facilities was discussed by the European Committee for the Prevention of Torture in its 3rd General Report (CPT/Inf (93) 12 - Publication Date: 4 June 1993). The following are the extracts from the Report: “33. When entering prison, all prisoners should without delay be seen by a member of the establishment's health care service. In its reports to date the CPT has recommended that every newly arrived prisoner be properly interviewed and, if necessary, physically examined by a medical doctor as soon as possible after his admission. It should be added that in some countries, medical screening on arrival is carried out by a fully qualified nurse, who reports to a doctor. This latter approach could be considered as a more efficient use of available resources. It is also desirable that a leaflet or booklet be handed to prisoners on their arrival, informing them of the existence and operation of the health care service and reminding them of basic measures of hygiene. 34. While in custody, prisoners should be able to have access to a doctor at any time, irrespective of their detention regime... The health care service should be so organised as to enable requests to consult a doctor to be met without undue delay... 35. A prison's health care service should at least be able to provide regular out-patient consultations and emergency treatment (of course, in addition there may often be a hospital-type unit with beds)... Further, prison doctors should be able to call upon the services of specialists. As regards emergency treatment, a doctor should always be on call. Further, someone competent to provide first aid should always be present on prison premises, preferably someone with a recognised nursing qualification. Out-patient treatment should be supervised, as appropriate, by health care staff; in many cases it is not sufficient for the provision of follow-up care to depend upon the initiative being taken by the prisoner. 36. The direct support of a fully-equipped hospital service should be available, in either a civil or prison hospital... 38. A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly. There should be appropriate supervision of the pharmacy and of the distribution of medicines. Further, the preparation of medicines should always be entrusted to qualified staff (pharmacist/nurse, etc.). ... 39. A medical file should be compiled for each patient, containing diagnostic information as well as an ongoing record of the patient's evolution and of any special examinations he has undergone. In the event of a transfer, the file should be forwarded to the doctors in the receiving establishment. Further, daily registers should be kept by health care teams, in which particular incidents relating to the patients should be mentioned. Such registers are useful in that they provide an overall view of the health care situation in the prison, at the same time as highlighting specific problems which may arise. 40. The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service. ... 54. A prison health care service should ensure that information about transmittable diseases (in particular hepatitis, AIDS, tuberculosis, dermatological infections) is regularly circulated, both to prisoners and to prison staff. Where appropriate, medical control of those with whom a particular prisoner has regular contact (fellow prisoners, prison staff, frequent visitors) should be carried out.” 3. Committee of Ministers Recommendation No. R (98) 7 on Health care in Prisons 75. A further elaboration of European expectations towards health care in prisons is found in the appendix to Recommendation no. R (98) 7 of the Committee of Ministers to Member States on the ethical and organisational aspects of health care in prison (adopted on 8 April 1998 at the 627th meeting of the Ministers' Deputies). Primarily restating the European Prison Rules and CPT standards, the Recommendation went beyond reiteration of the principles in some aspects to include more specific discussion of the management of certain common problems including transmissible diseases. In particular, in respect of cases of tuberculosis, the Committee of Ministers stressed that all necessary measures should be applied to prevent the propagation of this infection, in accordance with relevant legislation in this area. Therapeutic intervention should be of a standard equal to that outside prison. The medical services of the local chest physician should be requested in order to obtain the long-term advice that is required for this condition, as is practised in the community, in accordance with relevant legislation (Section 41). B. Health care issues related to transmissible diseases 1. Committee of Ministers Recommendation no. R (93) 6 on Control of Transmissible Diseases in Prisons 76. The fact that transmissible diseases in European prisons have become an issue of considerable concern prompted a recommendation of the Committee of Ministers to Member States concerning prison and criminological aspects of the control of transmissible diseases and related health problems in prison (adopted on 18 October 1993 at the 500th meeting of the Ministers' Deputies). The relevant extracts from the Recommendation read as follows: “2. The systematic medical examination carried out on entry into prison should include measures to detect intercurrent diseases, including treatable infectious diseases, in particular tuberculosis. The examination also gives the opportunity to provide health education and to give prisoners a greater sense of responsibility for their own health.... 15. Adequate financial and human resources should be made available within the prison health system to meet not only the problems of transmissible diseases and HIV/Aids but also all health problems affecting prisoners.” 2. 11th General Report of activities of the European Committee for the Prevention of Torture 77. An expanded coverage of the issue related to transmissible diseases in detention facilities was given by the European Committee for the Prevention of Torture in its 11th General Report (CPT/INF (2001) 16 published on 3 September 2001), a discussion prompted by findings of serious inadequacies in health provision and poor material conditions of detention which were exacerbating the transmission of the diseases. Addressing the issue, the CPT reported as follows: “31. The spread of transmissible diseases and, in particular, of tuberculosis, hepatitis and HIV/AIDS has become a major public health concern in a number of European countries. Although affecting the population at large, these diseases have emerged as a dramatic problem in certain prison systems. In this connection the CPT has, on a number of occasions, been obliged to express serious concerns about the inadequacy of the measures taken to tackle this problem. Further, material conditions under which prisoners are held have often been found to be such that they can only favour the spread of these diseases. The CPT is aware that in periods of economic difficulties - such as those encountered today in many countries visited by the CPT - sacrifices have to be made, including in penitentiary establishments. However, regardless of the difficulties faced at any given time, the act of depriving a person of his liberty always entails a duty of care which calls for effective methods of prevention, screening, and treatment. Compliance with this duty by public authorities is all the more important when it is a question of care required to treat life-threatening diseases. The use of up-to date methods for screening, the regular supply of medication and related materials, the availability of staff ensuring that prisoners take the prescribed medicines in the right doses and at the right intervals, and the provision when appropriate of special diets, constitute essential elements of an effective strategy to combat the above-mentioned diseases and to provide appropriate care to the prisoners concerned. Similarly, material conditions in accommodation for prisoners with transmissible diseases must be conducive to the improvement of their health; in addition to natural light and good ventilation, there must be satisfactory hygiene as well as an absence of overcrowding. Further, the prisoners concerned should not be segregated from the rest of the prison population unless this is strictly necessary on medical or other grounds... In order to dispel misconceptions on these matters, it is incumbent on national authorities to ensure that there is a full educational programme about transmissible diseases for both prisoners and prison staff. Such a programme should address methods of transmission and means of protection as well as the application of adequate preventive measures. It must also be stressed that appropriate information and counselling should be provided before and - in the case of a positive result - after any screening test. Further, it is axiomatic that patient-related information should be protected by medical confidentiality. As a matter of principle, any interventions in this area should be based on the informed consent of the persons concerned. Moreover, for control of the above-mentioned diseases to be effective, all the ministries and agencies working in this field in a given country must ensure that they co-ordinate their efforts in the best possible way. In this respect the CPT wishes to stress that the continuation of treatment after release from prison must be guaranteed.” 1. The CPT Report on Russia 78. The CPT report on the visit to the Russian Federation carried out from 2 to 17 December 2001 (CPT/INF (2003) 30) provides as follows: “102. The CPT is also seriously concerned by the practice of transferring back from SIZO [temporary detention facility] to IVS [temporary detention ward in police departments] facilities prisoners diagnosed to have BK+ tuberculosis (and hence highly contagious), as well as by the interruption of TB treatment while at the IVS. An interruption of the treatment also appeared to occur during transfers between penitentiary establishments. In the interest of combating the spread of tuberculosis within the law-enforcement and penitentiary system and in society in general, the CPT recommends that immediate measures be taken to put an end to the above-mentioned practice.” 2. The World Bank Report on Tuberculosis and Aids Control Project in Russia 79. On 23 December 2009 the World Bank published the Implementation Completion and Results Report (Report no. ICR00001281, Volume I) on a loan granted to the Russian Federation for its Tuberculosis and Aids Control Project. The relevant part of the Report read as follows: “According to the World Health Organization (WHO), Russia was one of the 22 high-burden countries for TB in the world (WHO, Global Tuberculosis control: Surveillance, Planning, Financing, Geneva, 2002). The incidence of TB increased throughout the 1990s. This was due to a combination of factors, including: (i) increased poverty, (ii) under-funding of TB services and health services in general, (iii) diagnostic and therapeutic approaches that were designed for a centralized command-and-control TB system, but were unable to cope with the social mobility and relative freedom of the post-Soviet era, and (iv) technical inadequacies and outdated equipment. Migration of populations from ex-Soviet republics with high TB burdens also increased the problem. Prevalence rates were many times higher in the prison system than in the general population. Treatment included lengthy hospitalizations, variations among clinicians and patients in the therapeutic regimen, and frequent recourse to surgery. A shrinking health budget resulted in an erratic supply of anti-TB drugs and laboratory supplies, reduced quality control in TB dispensaries and laboratories, and inadequate treatment. The social conditions favouring the spread of TB, combined with inadequate systems for diagnosis, treatment, and surveillance, as well as increased drug resistance, produced a serious public health problem. TB control in the former Union of Soviet Socialist Republics (USSR) and in most of Russia in the 1990s was heavily centralized, with separate hospitals (TB dispensaries), TB sanatoriums, TB research institutes and TB specialists. The system was designed in the 1920s to address the challenges of the TB epidemic. Case detection relied strongly on active mass screening by X-ray (fluorography). Specificity, sensitivity, and cost-effectiveness considerations were not features of this approach. Bacille Calmette-Guerin (BCG) immunization was a key feature of the TB control system... By 2000, there was more than a two-fold increase in TB incidence, and mortality from TB increased 3 times, compared with 1990. The lowered treatment effectiveness of the recent years resulted in an increase in the number of TB chronic patients, creating a permanent 'breeding ground' for the infection. At that moment, the share of pulmonary TB cases confirmed by bacterioscopy did not exceed 25%, and the share of such cases confirmed by culture testing was no more than 41% due to suboptimal effectiveness of laboratory diagnosis, which led to poor detection of smear-positive TB cases. Being a social disease, TB affected the most socially and economically marginalized populations in Russia.” 80. The following are extracts from Treatment of Tuberculosis: Guidelines for National Programmes, World Health Organisation, 1997, pp. 27, 33 and 41: “Treatment regimens have an initial (intensive) phase lasting 2 months and a continuation phase usually lasting 4-6 months. During the initial phase, consisting usually of 4 drugs, there is rapid killing of tubercle bacilli. Infectious patients become non-infectious within about 2 weeks. Symptoms improve. The vast majority of patients with sputum smear-positive TB become smear-negative within 2 months. In the continuation phase fewer drugs are necessary but for a longer time. The sterilizing effect of the drugs eliminates remaining bacilli and prevents subsequent relapse. In patients with smear positive pulmonary TB, there is a risk of selecting resistant bacilli, since these patients harbour and excrete a large number of bacilli. Short-course chemotherapy regimens consisting of 4 drugs during the initial phase, and 2 drugs during the continuation phase, reduce this risk of selecting resistant bacilli. These regimens are practically as effective in patients with initially resistant organisms as in those with sensitive organisms. In patients with smear negative pulmonary or extra-pulmonary TB there is little risk of selecting resistant bacilli since these patients harbour fewer bacilli in their lesions. Short-course chemotherapy regimens with three drugs during the initial phase, and two drugs in the continuation phase, are of proven efficacy... Patients with sputum smear-positive pulmonary TB should be monitored by sputum smear examination. This is the only group of TB patients for whom bacteriological monitoring is possible. It is unnecessary and wasteful of resources to monitor the patient by chest radiography. For patients with sputum smear-negative pulmonary TB and extra-pulmonary TB, clinical monitoring is the usual way of assessing response to treatment. Under programme conditions in high TB incidence countries, routine monitoring by sputum culture is not feasible or recommended. Where facilities are available, culture surveys can be useful as part of quality control of diagnosis by smear microscopy... Directly observed treatment is one element of the DOTS strategy, i.e. the WHO recommended policy package for TB control. Direct observation of treatment means that a supervisor watches the patient swallowing the tablets. This ensures that a TB patient takes the right drugs, in the right doses, at the right intervals... Many patients receiving self-administered treatment will not adhere to treatment. It is impossible to predict who will or will not comply, therefore directly observed treatment is necessary at least in the initial phase to ensure adherence. If a TB patient misses one attendance to receive treatment, it is necessary to find that patient and continue treatment.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE CONDITIONS OF DETENTION IN FACILITY NO. IZ-18/1 81. The applicant complained that the conditions of his detention from 30 January 2002 to 16 July 2004 in facility no. IZ-18/1 in Izhevsk had been in breach of Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Submissions by the parties 82. Relying on the certificates issued by the deputy director of facility no. IZ-18/1, the Government gave a detailed description of the conditions of the applicant's detention in that facility, arguing that they fully complied with the requirements of Article 3 of the Convention. In their additional observations the Government stressed that the submissions by the applicant's fellow inmates in support of his description of the conditions of detention “give rise to doubt”. At the same time the Government drew the Court's attention to the fact that the deputy director's certificates were official documents bearing all the necessary requisites, including the official's signature, seal, etc. Furthermore, should it transpire that the information submitted by the State official was incorrect, he could be found criminally responsible. 83. The applicant disputed the Government's description, noting that it was not supported by any objective evidence, such as registration logs. At the same time the only possibility for him to corroborate his submissions was to rely on statements by inmates, as he did. The applicant insisted that the conditions of his detention had been inhuman and degrading. He steadfastly maintained his description of the detention conditions, alleging, inter alia, severe overcrowding, poor sanitary conditions, insufficient lighting, and inadequate food. B. The Court's assessment 1. Admissibility 84. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits 85. The Court observes that the parties have disputed certain aspects of the conditions of the applicant's detention in facility no. IZ-18/1 in Izhevsk. However, there is no need for the Court to establish the veracity of each and every allegation, because it finds a violation of Article 3 on the basis of facts which have been presented to it and which the respondent Government failed to refute. 86. The focal point for the Court's assessment is the living space afforded to the applicant in the detention facility. The applicant claimed that the number of detainees in the cells had considerably exceeded their intended capacity. The Government, relying on certificates issued by the deputy director of the detention facility three years after the applicant's detention in that facility had come to an end, claimed that the applicant had been afforded no less than four square metres of personal space and had been provided with an individual sleeping place at all times. At the same time they did not refer to any original source of information on the basis of which their assertion could be verified. In this connection the Court notes that on several previous occasions when the Government have failed to submit original records it has held that documents prepared after a considerable period of time cannot be viewed as sufficiently reliable, given the length of time that has elapsed (see, among recent authorities, Novinskiy v. Russia, no. 11982/02, § 105, 10 February 2009, and Shilbergs v. Russia, no. 20075/03, § 91, 7 December 2009). The Court is of the view that these considerations hold true in the present case. The certificates prepared by the Russian authorities three years after the events in question cannot be regarded as sufficiently reliable sources of data. 87. In these circumstances, having regard to the evidence presented by the applicant in support of his submissions, together with the fact that the Government did not submit any convincing relevant information, the Court finds it established that the cells in facility no. IZ-18/1 were overcrowded. The Court also accepts the applicant's submissions that, owing to the overpopulation of the cells and the resulting lack of sleeping places, he had to take turns with other inmates to rest. Given the size of the cells, the number of inmates detained in them at the same time and the parties' submission that the cells had been equipped with bunks, a table, and a cubicle in which a lavatory pan was situated, the Court doubts that there was sufficient floor space even to pace out the cell. In this connection, the Court notes that, irrespective of the reasons for the overcrowding, it is incumbent on the respondent Government to organise its penitentiary system in such a way as to ensure respect for the dignity of detainees, regardless of financial or logistical difficulties (see Mamedova v. Russia, no. 7064/05, § 63, 1 June 2006). 88. The applicant's situation was further exacerbated by the fact that the opportunity for outdoor exercise was limited to one hour a day, leaving him with twenty-three hours per day of detention in facility no. IZ-18/1 without any kind of freedom of movement. The Court also does not lose sight of the applicant's argument, supported by written statements of other inmates, that the windows in the cells were covered with metal shutters. In these circumstances the Court is not convinced by the Government's argument that the windows had given access to natural light and air. The metal construction on the windows, as described by the applicant, significantly reduced the amount of daylight that could penetrate into the cell, and cut off fresh air. It therefore appears that for almost two and a half years, between 30 January 2002 and 16 July 2004, the applicant had to spend a considerable part of each day in the facility in a cramped cell with no window in the proper sense of the word (compare Peers v. Greece, no. 28524/95, § 75, ECHR 2001‑III). Furthermore, even proceeding on the assumption that the Government's submissions pertaining to bathing arrangements in the detention facility were more accurate, the Court notes that the fact that applicant had access to a shower and could wash his linen and clothes only once a week raises serious concerns as to the conditions of hygiene and sanitation, given the acutely overcrowded accommodation in which he found himself (see, for similar reasoning, Melnik v. Ukraine, no. 72286/01, § 107, 28 March 2006). 89. To sum up, the Court has frequently found a violation of Article 3 of the Convention on account of a lack of personal space afforded to detainees (see Khudoyorov v. Russia, no. 6847/02, §§ 104 et seq., ECHR 2005-X (extracts); Labzov v. Russia, no. 62208/00, §§ 44 et seq., 16 June 2005; Novoselov v. Russia, no. 66460/01, §§ 41 et seq., 2 June 2005; Mayzit v. Russia, no. 63378/00, §§ 39 et seq., 20 January 2005; Kalashnikov v. Russia, no. 47095/99, §§ 97 et seq., ECHR 2002-VI; and Peers v. Greece, no. 28524/95, §§ 69 et seq., ECHR 2001-III). 90. Having regard to its case-law on the subject and the material submitted by the parties, the Court notes that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Although in the present case there is no indication that there was a positive intention to humiliate or debase the applicant, the Court finds that the very fact that the applicant was obliged to live, sleep and use the toilet in a particularly limited space with so many other inmates was sufficient to cause distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention, and to arouse in him feelings of fear, anguish and inferiority capable of humiliating and debasing him. 91. The Court finds, accordingly, that there has been a violation of Article 3 of the Convention because the applicant was subjected to inhuman and degrading treatment on account of the conditions of his detention in facility no. IZ-18/1 in Izhevsk from 30 January 2002 to 16 July 2004. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF CONTRACTION OF TUBERCULOSIS AND FAILURE TO DIAGNOSE THE ILLNESS 92. In his application form the applicant complained under Article 3 of the Convention that he had contracted tuberculosis during his detention in facility no. IZ-18/1 and that he had not been provided with adequate medical assistance in that facility. In his observations lodged with the Court on 21 December 2007, while maintaining his initial complaint of having contracted tuberculosis, the applicant stated that the prison authorities had not taken steps to safeguard his health and well-being by failing to detect the illness promptly. Article 3 is cited above. 93. Relying on a copy of the applicant's medical record, the Government argued that the applicant had been under effective medical supervision in the course of his detention. That supervision involved regular medical check-ups prior to his having been diagnosed with tuberculosis and a prompt and effective response to any health grievances the applicant had, as well as effective medical treatment to the point of cure after the illness revealed itself. The treatment the applicant had received complied with requirements laid down by Russian law and international medical standards. 94. At the same time the Government submitted that it was impossible to establish “beyond reasonable doubt” that the applicant had contracted tuberculosis while in detention. They reasoned that according to medical specialists and research, the majority of the Russian adult population and, consequently, the majority of individuals entering the Russian penitentiary system, are already infected with mycobacterium tuberculosis (“MBT”). The Government stressed that detection of dormant MBT cannot be made through ordinary radiological methods of screening and a period of several years may pass between the date when a person contracts the illness and the date when the illness fully develops. They cited statistical data, arguing that out of 100,000 persons infected with the bacteria only 89 will develop an active form of the illness. The Government drew the Court's attention to the fact that modern science did not clearly identify the factors which led to the reactivation of the tuberculosis process. It is, however, established that persons with a weak immune system are prone to the infection. Hereditary factors should also be taken into account. 95. Relying on a medical certificate issued by a civil hospital, the applicant averred that he had not suffered from tuberculosis before his placement in facility no. IZ-18/1 and that no signs of tuberculosis had been detected for over two years during his detention in that facility. His health had seriously deteriorated as a result of his detention in the appalling sanitary conditions with so many inmates who could have been infected with tuberculosis. The applicant insisted that the State was entirely responsible for his having contracted tuberculosis, which had negatively affected the quality of his life and his life expectancy. The authorities had failed to take any steps to eliminate the risk of the infection. In particular, the screening procedures had been performed sporadically. The authorities had delayed fluorography examinations, which were to be carried out once every six months. The correct diagnosis had only been made when the applicant started exhibiting all signs of the illness: he lost a lot of weight, had a high temperature and suffered from shortness of breath. The delayed diagnosis had caused him severe mental suffering and was a clear sign of inadequate medical assistance. B. The Court's assessment Admissibility (a) General principles 96. 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, for example, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). 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 (see, among other authorities, Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25). 97. Ill-treatment that attains such a minimum level of severity usually involves actual bodily injury or intense physical or mental suffering. However, even in the absence of these, where treatment humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3 (see Pretty v. the United Kingdom, no. 2346/02, § 52, ECHR 2002-III, with further references). 98. In the context of deprivation of liberty the Court has consistently stressed that, to fall under Article 3, the suffering and humiliation involved must in any event go beyond that inevitable element of suffering and humiliation connected with the detention (see, mutatis mutandis, Tyrer v. the United Kingdom, 25 April 1978, § 30, Series A no. 26, and Soering v. the United Kingdom, 7 July 1989, § 100, Series A no. 161). 99. The State must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000-XI, and Popov v. Russia, no. 26853/04, § 208, 13 July 2006). In most of the cases concerning the detention of people who are ill, the Court has examined whether or not the applicant received adequate medical assistance in prison. The Court reiterates in this respect that even if Article 3 does not entitle a detainee to be released “on compassionate grounds”, it has always interpreted the requirement to secure the health and well-being of detainees, among other things, as an obligation on the part of the State to provide detainees with the requisite medical assistance (see Kudła, cited above, § 94; Kalashnikov v. Russia, no. 47095/99, §§ 95 and 100, ECHR 2002-VI; and Khudobin v. Russia, no. 59696/00, § 96, ECHR 2006-XII (extracts)). 100. The “adequacy” of medical assistance remains the most difficult element to determine. The CPT proclaimed the principle of the equivalence of health care in prison with that in the outside community (see paragraph 74 above). The Court insists that, in particular, authorities must ensure that the diagnosis and care are prompt and accurate (see Hummatov v. Azerbaijan, nos. 9852/03 and 13413/04, § 115, 29 November 2007; Melnik, cited above, §§ 104-106; and, mutatis mutandis, Holomiov v. Moldova, no. 30649/05, § 121, 7 November 2006), and that where necessitated by the nature of a medical condition, supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at curing the detainee's health problems or preventing their aggravation (see Hummatov, cited above, §§ 109, 114; Sarban v. Moldova, no. 3456/05, § 79, 4 October 2005; and Popov v. Russia, cited above, § 211). However, the Court has also held that Article 3 of the Convention cannot be interpreted as securing for every detained person medical assistance at the same level as “in the best civilian clinics” (see Mirilashivili v. Russia (dec.), no. 6293/04, 10 July 2007). In another case the Court went further, holding that it was “prepared to accept that in principle the resources of medical facilities within the penitentiary system are limited compared to those of civil clinics” (see Grishin v. Russia, no. 30983/02, § 76, 15 November 2007). 101. On the whole, the Court allows a certain flexibility in defining the required standard of health care, deciding it on a case-by-case basis. That standard should be “compatible with the human dignity” of a detainee, but should also take into account “the practical demands of imprisonment” (see Aleksanyan v. Russia, no. 46468/06, § 140, 22 December 2008). (b) Application of the above principles to the present case 102. Turning to the circumstances of the present case, the Court observes that following a fluorography test on 20 June 2004, more than two years after the arrest in December 2001, the applicant was diagnosed as having tuberculosis, from which, according to him, he had not suffered prior to his arrest. In fact, the medical certificate submitted by the applicant, as well as medical evidence provided by the Government, shows that he had no history of tuberculosis before his placement in detention facility no. IZ-18/1 in Izhevsk. Likewise, no symptoms of tuberculosis were discovered in the period from 30 January 2002, when the applicant underwent his first fluorography exam in detention, until the end of June 2004, when the disease was diagnosed. The three fluorography tests performed during that period revealed no signs of infection. 103. In this respect, the Court shares the Government's opinion that Mycobacterium tuberculosis (MBT), also known as Koch's bacillus, may lie dormant in the body for some time without exhibiting any clinical signs of the illness. However, for the Government to argue effectively that the applicant was infected with Koch's bacillus even before his arrest, it would have been necessary for the authorities to perform the Mantoux test on the applicant upon his admission to the detention facility and in addition to conduct a fluorography examination, or a special tuberculosis blood test which would have indicated the presence of the latent infection. However, as is apparent from the parties' submissions, apart from fluorography examinations Russian custodial facilities did not use any other method of screening for the presence of MBT in detainees at the time of their admission. The possibility that the applicant might never have been exposed to the infection prior to his arrest and that he only contracted tuberculosis during his detention cannot therefore be ruled out, particularly as the severe overcrowding, unsatisfactory access to fresh air and poor sanitary conditions in which the applicant found himself in facility no. IZ-18/1 (see paragraphs 85-91 above) constitute a recognised setting for the transmission of tuberculosis (see Ghavtadze v. Georgia, no. 23204/07, § 86, 3 March 2009, and, most recently, Pakhomov v. Russia, no. 44917/08, 30 September 2009, § 64). Nor does the Court lose sight of the statistical estimations that place Russia among one of the twenty-two high-burden countries for tuberculosis in the world, it having recorded a dramatic increase in the incidence of the disease in the 1990s, with some reports indicating that TB is twenty times more prevalent in Russian prisons than in the country in general (see paragraph 79 above). With all these considerations in mind, added to the fact that the first five fluorography tests performed between January 2002 and June 2004 showed no disease in the applicant's lungs, the Court considers it most probable that the applicant contracted tuberculosis in detention facility no. IZ-18/1 (see Staykov v. Bulgaria, no. 49438/99, § 81, 12 October 2006; Yakovenko v. Ukraine, no. 15825/06, §§ 28 and 95, 25 October 2007; Hummatov, cited above, §§ 108 and 111; and Ghavtadze, cited above, § 86). 104. While finding it particularly disturbing that the applicant's infection with tuberculosis might have occurred in a custodial institution within the State's control, as an apparent consequence of the authorities' failure to eradicate or prevent the spread of the disease, the Court reiterates its constant approach that the State does have a responsibility to ensure treatment for prisoners in its charge and a lack of adequate medical assistance for serious health problems not suffered from prior to detention may amount to a violation of Article 3 (see Hummatov, cited above, §§ 108 et seq.). A lack of or inadequate treatment for tuberculosis, particularly when the disease has been contracted in detention, is most certainly a matter of concern for the Court. Its ordinary task in such cases is therefore to assess the quality of medical services rendered to applicants and, if they have been deprived of adequate medical assistance, to ascertain whether this amounted to inhuman and degrading treatment contrary to Article 3 of the Convention (see Sarban v. Moldova, no. 3456/05, § 78, 4 October 2005). 105. The Court observes that the applicant amended his complaint under Article 3 relating to his suffering from tuberculosis, arguing delayed diagnosis of the illness and no longer maintaining his complaint of inadequate medical care after the diagnosis had been made. In this connection, the Court observes that no evidence before it corroborates the applicant's claims as to belated screening for the illness. In fact, the applicant did not provide any explanation in support of his argument, merely noting a general deterioration of his health preceding the discovery of the disease during the medical check-up on 20 June 2004. At the same time the Court does not detect any delay on the part of the prison authorities in responding to the applicant's health complaints. In particular, the Court notes that the applicant was promptly seen by an attending prison doctor, who studied his medical history, recorded the complaints and scheduled an X-ray examination. As the applicant's medical history shows, on 20 June 2004, that is merely four months after the previous chest fluorography test in February 2004, the applicant was subjected to a complete medical check-up, including an X-ray examination. Another radiography test followed shortly after and it confirmed the discovery of the illness. The Court is therefore convinced that the facility's medical personnel acted timeously and diligently in identifying the illness, through the key measure in the modern strategy of tuberculosis control and treatment. 106. While the quality of the medical service rendered to the applicant following the detection of the disease is no longer the subject matter of the Court's examination (see paragraphs 92, 95 and 105 above), it still considers it necessary to emphasise that the quality of the treatment provided to the applicant following the detection of the tuberculosis appears to be adequate. In particular, the evidence put before the Court shows that the Russian authorities used all existing means (sputum smear bacterioscopy, culture testing and chest X-ray exams) for correct diagnosis of the applicant, having considered the extent of the disease and determined the severity of the tuberculosis, in order to prescribe appropriate treatment. 107. Having been placed on a strict medication regime necessary for the tuberculosis therapy when the initial stage of the treatment was followed by the continuation stage, as recommended by the WHO, the applicant received a number of anti-tuberculosis medicines and concomitant antihistamine drugs, which were administered to him in the requisite dosage, at the right intervals and for the appropriate duration. During the entire period of his treatment the applicant was subjected to regular and systematic clinical and radiological assessment and bacteriological monitoring, which formed part of the comprehensive therapeutic strategy aimed at curing the disease. The detention authorities also effectively implemented the doctors' recommendations about a special dietary ration necessary for the applicant to improve his health (contrast Gorodnitchev v. Russia, no. 52058/99, § 91, 24 May 2007). 108. Furthermore, the Court attributes particular weight to the fact that the facility administration not only ensured that the applicant was attended to by doctors, that his complaints were heard and that he was prescribed a trial of anti-tuberculosis medication, they also created the necessary conditions for the prescribed treatment to be actually followed through (see Hummatov, cited above, § 116). The Court notes that the intake of medicines by the applicant was supervised and directly observed by the facility medical personnel throughout the whole treatment regimen as required by the DOTS strategy. In addition, in a situation where the authorities met with the applicant's occasional refusal to cooperate and his resistance to the treatment, they offered him psychological support and attention, having provided clear and complete explanations about medical procedures, the sought-after outcome of the treatment and the negative side-effects of interrupting the treatment, irregular medication or fasting (contrast Gorodnitchev, cited above, § 91; Testa v. Croatia, no. 20877/04, § 52, 12 July 2007; and Tarariyeva v. Russia, no. 4353/03, § 80, ECHR 2006‑XV (extracts)). The authorities' actions ensured the applicant's adherence to the treatment and compliance with the prescribed regimen, this being a key factor in the treatment's success. 109. The medical record containing the applicant's diagnosis following the completion of the treatment in the spring of 2005 as “infiltrative tuberculosis in the resolution phase” showed positive dynamics in the applicant's treatment, meaning that he was recovering. His treatment was adjusted accordingly to take account of his improving health. Nothing in the case file can lead the Court to conclude that the applicant did not receive comprehensive medical assistance during the various stages of his tuberculosis treatment. The applicant did not deny that medical supervision had been provided and tests had been carried out, or that the prescribed medication had been provided, as indicated in the medical records submitted by the Government. In fact, he did not indicate any shortcomings in his medical care, save for an allegedly belated diagnosis. 110. Finally, after the completion of the treatment resulting in the applicant's “clinical recovery from infiltrative tuberculosis” he remained under medical supervision aimed at preventing a relapse of the illness. 111. To sum up, the Court considers that the Government provided sufficient evidence to enable it to conclude that the domestic authorities, without undue delay, diagnosed the applicant with tuberculosis and afforded him comprehensive, effective and transparent medical assistance in respect of that illness. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF ALLEGED ILL-TREATMENT BY WARDERS 112. The applicant, relying on Article 3 of the Convention, complained that he had been severely beaten up by warders on 10 July 2003 and that the investigation had not led to punishment of those responsible. 113. The Government argued that the State bore no responsibility for the injury which the applicant had sustained on 10 July 2003. While accepting that physical force had been used against the applicant on that day, the Government stressed that the force had been no more than a lawful and adequate response to the applicant's unruly behaviour. They further noted that the laceration on the applicant's forehead had been caused when the latter had fallen in the prison van while resisting the warders' lawful orders. The domestic authorities had performed a thorough inquiry into the events of 10 July 2003 and, having collected evidence of the applicant's unruly conduct, had dismissed the complaint about an excessive use of force. 114. The applicant averred that he had sustained a number of injuries, including one on the head, which could not have been self-inflicted as his hands had been handcuffed throughout the events in question. The handcuffing had also made it impossible for him to use force against the warders. He further stressed that following the beatings he had been forced to remain for hours in the warders' room and that medical assistance had only been rendered to him in the detention facility in the evening of 10 July 2003. The applicant insisted that the laceration on his forehead could only have been caused as a result of a blow from handcuffs. He could not have sustained that injury though a mere fall, as the walls and floor of the van were smooth and did not have any sharp edges on which he could have cut his forehead by falling. The applicant noted that the Government's submissions were inconsistent as they put forward two contradictory versions of events, insisting that the warders had used force against him whilst at the same time arguing that the injury on his forehead had been self-inflicted. 115. The applicant further alleged that the investigation into the events in question had been ineffective and subjective as the investigator had readily accepted the veracity of the warders' submissions but had dismissed his version of the events as inaccurate. The investigators had failed to perform a number of procedural actions. The District Court's refusal to support the investigator's decision on a number of occasions was, in the applicant's view, a major sign of the inadequacy of the investigation. 116. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible. (a) General principles (i) As to the scope of Article 3 117. As the Court has stated on many occasions, Article 3 enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim's conduct (see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000‑IV, and Chahal v. the United Kingdom, 15 November 1996, § 79, Reports of Judgments and Decisions 1996-V). Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 of the Convention even in the event of a public emergency threatening the life of the nation (see Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999-V, and Assenov and Others v. Bulgaria, 28 October 1998, § 93, Reports 1998-VIII). 118. The Court has consistently stressed that the suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Measures depriving a person of his liberty may often involve such an element. In accordance with Article 3 of the Convention the State must ensure that a person is detained under conditions which are compatible with respect for his human dignity and that the manner and method of the execution of the measure do not subject him to distress or hardship exceeding the unavoidable level of suffering inherent in detention (see Kudla v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000-XI). 119. In the context of detainees, the Court has emphasised that persons in custody are in a vulnerable position and that the authorities are under a duty to protect their physical well-being (see Tarariyeva v. Russia, no. 4353/03, § 73, ECHR 2006‑... (extracts); Sarban v. Moldova, no. 3456/05, § 77, 4 October 2005; and Mouisel v. France, no. 67263/01, § 40, ECHR 2002‑IX). In respect of a person deprived of his liberty, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the Convention (see Sheydayev v. Russia, no. 65859/01, § 59, 7 December 2006; Ribitsch v. Austria, 4 December 1995, § 38, Series A no. 336; and Krastanov v. Bulgaria, no. 50222/99, § 53, 30 September 2004). (ii) As to the establishment of the facts 120. The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25). However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII). 121. Where domestic proceedings have taken place, it is not the Court's task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them (see Klaas v. Germany, 22 September 1993, § 29, Series A no. 269). Although the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (see Matko v. Slovenia, no. 43393/98, § 100, 2 November 2006). Where allegations are made under Article 3 of the Convention, however, the Court must apply a particularly thorough scrutiny (see, mutatis mutandis, Ribitsch, cited above, § 32). (b) Application of the above principles in the present case (i) Establishment of facts and application of the rule on the minimum level of severity 122. The Court observes, and the parties did not dispute this fact, that on 10 July 2003 the applicant and his fellow inmate, Mr H., had an argument with warders who escorted them to the courthouse. It was likewise uncontested that the warders used physical force against the applicant. 123. The Court reiterates that the exact circumstances and the intensity of the use of force against the applicant were disputed by the parties. The Government alleged that the force had been used lawfully in response to the applicant's unruly conduct. The force did not exceed what was reasonable and necessary in the circumstances of the case. As is apparent from the reports by the warders and their interviews with the investigator, when in the morning of 10 July 2003 the applicant had refused to leave the van and proceed to the courthouse, the warders had overpowered him and had carried him there. Similar events had occurred in the afternoon of the same day, when the applicant had not only refused to leave the van, but had also attempted to bite a warder (see paragraph 41 above). The applicant did not dispute that he had disobeyed the warders' orders and had actively resisted them, to the point of using violence. However, relying on the statement by his fellow inmate, Mr H., he submitted that the warders had repeatedly hit and kicked him in various parts of his body and had hit him on the head with handcuffs, causing the cut on his forehead. 124. The Court first notes that the applicant was examined by a prison doctor in the evening on 10 July 2003. As shown by a medical certificate drawn up by the doctor, the applicant had a small laceration, covered with a crust of dried blood, on his forehead (see paragraphs 36 and 37 above). No other injuries were discovered. On 11 July 2003 the applicant was examined by forensic medical experts, who also noted a laceration on his forehead and did not record any other injuries on his body. In this respect the Court is particularly mindful of the fact that the applicant did not dispute the credibility or accuracy of the findings made by the medical personnel on either occasion. 125. The Court notes the Government's argument that the applicant could have acquired the laceration when he was resisting the warders and that he must have slipped and fallen inside the prison van. The applicant provided a completely different version of events, arguing that a warder had hit him with handcuffs on the head. The Court, however, cannot overlook the inconsistencies that abounded in the various accounts of the events which the applicant gave in his submissions to the Court and complaints to domestic authorities. For instance, during the first interview with the investigator of the Industrialniy District prosecutor's office the applicant complained that in response to his attempt to bite a warder the latter had cut the applicant's forehead with handcuffs (see paragraph 41 above). When questioned for the second time the applicant amended his version of events by asserting that the warder had also cut his lip (see paragraph 45 above). However, in his application to the Court the applicant described the events on 10 July 2003 as a severe beating, alleging that the warders had repeatedly kicked and hit him. Following the communication of his complaint to the Government and in response to their memorial, the applicant gave an account of events that was similar to what he had told the investigator in the aftermath of the events of 10 July 2003. 126. Keeping in mind the inconsistencies in the applicant's versions of events recounted at the various stages of the proceedings, the Court further observes that it is unable to conclude beyond reasonable doubt that the laceration discovered on the applicant's forehead by the prison doctor was caused in the circumstances described by the applicant. The evidence before the Court does not allow it to exclude either the Government's or the applicant's version of events. The injury found on the applicant's forehead is consistent both with a minor physical confrontation between the applicant and the warders and with an accidental fall in the prison van. 127. While noting the inconclusive analysis of the first applicant's injury, the Court further observes that there was no other evidence which could have shed light on the events of 10 July 2003. It is unconvinced by the statements made by the applicant's fellow inmate, Mr H., in support of the applicant's claims of official brutality. The Court doubts whether Mr H. could be considered an “objective observer” in the circumstances of the case. It is also surprising that, having actively resisted the warders' orders himself, Mr H. was able to take note of the exact circumstances in which the applicant had sustained an injury. The Court does not lose sight of the fact that in describing the manner in which a warder had hit the applicant on the forehead, Mr H. stated that the warder had put the handcuffs on his fist to resemble a knuckle-duster. However, that description sits ill with the nature of the applicant's injury: a short and narrow laceration on the forehead. It rather supports the version that the injury resulted from an inadvertent application of force during the confrontation between the applicant and the warders, or an accidental fall in the prison van. 128. The Court therefore concludes that there is nothing to show that the warders used excessive force when, in the course of their duties, they were confronted with the alleged disorderly behaviour of the applicant. The Court is also not persuaded that the force used had such an impact on the applicant's physical or mental well-being as to give rise to an issue under Article 3 of the Convention. 129. Under these circumstances, the Court cannot consider it established beyond reasonable doubt that on 10 July 2003 the applicant was subjected to treatment contrary to Article 3 or that the authorities had recourse to physical force which had not been rendered strictly necessary by the applicant's own behaviour. 130. It follows that there has been no violation of Article 3 of the Convention on that account. (ii) Alleged inadequacy of the investigation 131. The Court reiterates that where an individual raises an arguable claim that he has been seriously ill-treated in breach of Article 3, that provision, read in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. An obligation to investigate “is not an obligation of result, but of means”: not every investigation should necessarily be successful or come to a conclusion which coincides with the claimant's account of events; however, it should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible. Thus, the investigation of serious allegations of ill-treatment must be thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions. They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence, and so on. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard (see, among many authorities, Mikheyev, cited above, § 107 et seq., and Assenov and Others v. Bulgaria, cited above, § 102 et seq.). 132. Turning to the circumstances of the present case, the Court notes that the prosecution authorities, who were made aware of the applicant's beating, carried out a preliminary investigation which did not result in criminal prosecution. The applicant's ill-treatment complaints were also a subject of the examination by the domestic courts. In the Court's opinion, the issue is consequently not so much whether there was an investigation, since the parties did not dispute that there was one, but whether it was conducted diligently, whether the authorities were determined to identify and prosecute those responsible and, accordingly, whether the investigation was “effective”. 133. The Court will therefore first assess the promptness of the prosecutor's investigation, viewed as a gauge of the authorities' determination to identify and, if need be, prosecute those responsible for the applicant's ill-treatment (see Selmouni v. France [GC], no. 25803/94, §§ 78 and 79, ECHR 1999-V). In the present case, despite the Government's surprising argument to the contrary, the Court finds it established that the applicant complained of ill-treatment to the prosecution authorities on 11 July 2003 (see paragraph 38 above). The Court is mindful of the fact that the prosecutor's office opened its investigation immediately after being notified of the alleged beatings. On the same day the applicant was subjected to a medical examination authorised by the investigating authorities. Further steps were promptly taken in the aftermath of the events under examination. In particular, the authorities took significant investigative measures, including collecting an official explanatory report from the head of the warders' service and questioning the warders, the fellow inmate of the applicant, his co-defendant and lawyer. They also called for an expert medical examination of the warder who had been injured by the applicant when the latter had offered resistance. The Court does not find the fact that the three investigator's decisions were annulled by a court to be evidence of any inefficiency in the investigation, since from the materials in the case file it appears that the investigating authorities made diligent efforts to establish the circumstances of the events and to reconcile conflicting versions of events. In particular, they persistently tried to identify and interview additional witnesses who could have shed light on the events in question. They also further questioned the known witnesses in order to eliminate or explain the discrepancies which had arisen in their previous statements. The Court is also mindful of the fact that the authorities' task was significantly complicated by the applicant's confusing complaints and inconsistent description of the events. The investigators were forced to proceed more cautiously and thoroughly when processing vague or perplexing information from the applicant. At the same time the Court is satisfied that the investigators did not delay questioning the applicant in person and also provided him with opportunities to clarify his testimony. In addition, the Court does not overlook the fact that the applicant did not complain that he had not been duly informed of the progress of the investigation. 134. Further assessing the course of the investigation, the Court observes that the investigator apparently did not inspect the prison van where the alleged beatings had occurred. While reiterating that proper inspection of a crime scene is an essential procedural step for investigation of an offence, the Court is not convinced, in the circumstances of the instant case, in particular in view of the lack of any indication by the parties that physical evidence had been left in the van, that the failure to inspect it led to a loss of opportunity for the collection of evidence and prevented the investigation from establishing the principal facts of the case. 135. The Court is also of the opinion that from the start of the investigation the authorities thoroughly evaluated the medical evidence before them, attempting to draw conclusions from it, without accepting too readily the warders' version of events. The Court does not therefore find it established that the investigating authorities failed to look for corroborating evidence or exhibited a deferential attitude towards the warders. The Court also finds that the authorities may be regarded as having acted with sufficient promptness and having proceeded with reasonable expedition. 136. Having regard to its findings in paragraphs 133 and 134 above, the Court considers that the domestic investigation was effective for the purposes of Article 3 of the Convention. There has accordingly been no violation of the procedural obligation under Article 3 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 137. The applicant further complained that the length of the criminal proceedings in respect of the robbery charges had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” 138. The Government argued that the domestic authorities had fully complied with the “reasonable-time” requirement under Russian law and Article 6 § 1 of the Convention. The length of the proceedings had an objective justification, consisting in the complexity of the criminal case involving four defendants and examination of a number of charges and criminal events, the need to ensure participation of witnesses and victims at the trial hearings, and the inability of defence counsel to attend hearings owing to their involvement in other unrelated proceedings. At the same time, in the Government's opinion, a substantial delay in the proceedings had been caused by the applicant and his co-defendant who, on a number of occasions, had refused the services of their legal-aid counsel. Each appointment of new counsel required the trial court to give the new lawyer additional time to study the case file and prepare his line of defence. Furthermore, the applicant had actively made use of his defence rights, having filed a large number of motions, applications and requests, which the trial court was forced to act upon. 139. The applicant averred that the proceedings, which had lasted three years and eight months, had not progressed steadily. There had been lengthy periods when the domestic authorities were either completely passive or were correcting their procedural mistakes. In particular, on four occasions the trial court had remitted the case file to the investigation authorities to eliminate serious flaws which precluded examination of the case. The applicant further noted that the complexity of the case could not serve as justification for the length of the proceedings, particularly as the investigation had been completed within a few months and the proceedings had subsequently been pending for more than three years before the courts at two instances. Having addressed his own behaviour during the criminal proceedings, the applicant stressed that he had been detained throughout the proceedings and therefore had been within the State's full control. He had never failed to participate in investigative actions or attend hearings. As to the alleged abuse on his part of the right to defence, the applicant argued that the majority of his requests had been dismissed by the trial court. However, those which had been accepted, such as his request for a change of legal-aid counsel, were valid and well-founded. By accepting those requests the trial court had demonstrated that the applicant's right to a fair trial could have been violated if it had refused to rule in his favour. 140. The Court observes that the period to be examined began on 16 January 2002 when the criminal investigation was opened. It ended on 27 September 2005 with the final judgment of the Supreme Court of the Udmurtiya Republic. The proceedings therefore lasted approximately three years and eight months at two levels of jurisdiction. 141. The Court notes that the 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. 142. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case and the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II). 143. The Court accepts that the proceedings at issue were complex. However, it cannot accept that the complexity of the case, taken on its own, was such as to justify the overall length of the proceedings. The Court further observes that the fact that the applicant was held in custody required particular diligence on the part of the courts dealing with the case to ensure expeditious administration of justice (see Panchenko v. Russia, no. 45100/98, § 133, 8 February 2005, and Kalashnikov v. Russia, no. 47095/99, § 132, ECHR 2002‑VI). 144. As to the applicant's conduct, the Court is not convinced by the Government's argument that the applicant should be held responsible for lodging numerous requests. The Court firstly reiterates its constant approach that an applicant cannot be blamed for taking full advantage of the resources afforded by national law in the defence of his interests (see Kolomiyets v. Russia, no. 76835/01, § 29, 22 February 2007). The Government did not provide any evidence in support of their allegations that the applicant's unsuccessful requests were improper and contributed to the length of the proceedings. At the same time, the Court does not lose sight of the Government's argument that a substantial delay in the proceedings was caused by the four consecutive dismissals of the applicant's legal-aid lawyers. Each time a dismissal took place, the trial court was forced to adjourn hearings for the purpose of assigning new counsel to the applicant and giving the lawyer an opportunity to study the case file. Bearing in mind the prominent place which the right to a fair trial holds in a democratic society (see, inter alia, De Cubber v. Belgium, 26 October 1984, § 30, Series A no. 86), the Court considers that the State should bear responsibility for a delay incurred through a successful challenge by a defendant of State-appointed counsel. The Court reiterates that Article 6 § 1 of the Convention imposes on Contracting States the duty to organise their judicial system in such a way that their courts can fulfil the obligation to decide cases within a reasonable time (see, among other authorities, Löffler v. Austria (No. 2), no. 72159/01, § 57, 4 March 2004). Therefore, the responsibility for an aggregate delay of approximately six months, caused by successful requests for dismissal of legal-aid lawyers, rests ultimately with the State (see, mutatis mutandis, Marchenko v. Russia, no. 29510/04, § 39, 5 October 2006, and Sidorenko v. Russia, no. 4459/03, § 32, 8 March 2007). 145. Further addressing the conduct of the authorities, the Court notes that there were other substantial delays in the proceedings for which the Government have not submitted any satisfactory explanation and which are attributable to the domestic authorities. In particular, the Court observes that having been opened in January 2002, the pre-trial investigation was already completed in July 2002 when the case was transferred to the trial court. However, the preliminary examination of the case by the trial court led to the remittal of the case to the investigation authorities for correction of procedural defects. The transfer of the case from the trial court to the investigation authorities occurred on three further occasions, causing an aggregate delay of approximately eight months in the examination of the case (see paragraphs 12, 13, 16 and 17 above). 146. The Court also notes the Government's argument that the conduct of the co-defendants, witnesses, victims and their lawyers was one of the reasons for the prolongation of the proceedings. In this respect the Court observes that it was incumbent on the court dealing with the case to discipline the parties in order to ensure that the proceedings were conducted at an acceptable pace (see Sidorenko, cited above, § 34). It therefore considers that the delay occasioned by the trial court's failure to discipline the participants in the proceedings is attributable to the State (see Kuśmierek v. Poland, no. 10675/02, § 65, 21 September 2004). 147. Finally, it does not escape the Court's attention that for the major part of the overall period of three years and eight months the case was pending before the trial court. However, as stated in the parties' submissions, the only period when the trial court actively dealt with the case was between 17 August 2004 and 25 January 2005, when hearings were scheduled at regular intervals and no delays occurred. 148. To sum up, having examined all the material before it and taking into account what was at stake for the applicant, the Court considers that in the instant case the length of the criminal proceedings was excessive and failed to meet the “reasonable-time” requirement. There has accordingly been a violation of Article 6 § 1 of the Convention. V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 149. The applicant further complained that he had not had any effective remedy by which to complain about the excessive length of the criminal proceedings. This complaint falls to be examined under Article 13 of the Convention, which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Submissions by the parties 150. The Government submitted that the applicant's complaint was manifestly ill-founded and should be dismissed in accordance with Article 35 §§ 3 and 4 of the Convention. 151. The applicant maintained his complaint. B. The Court's assessment 1. Admissibility 152. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits 153. The Court takes cognisance of the existence of a new remedy introduced by the Compensation Act in the wake of the pilot judgment adopted in the case of Burdov v. Russia (no. 2) (no. 33509/04, ECHR 2009-...). The remedy enables those concerned to seek compensation for the damage sustained as a result of an unreasonable length of proceedings (see paragraphs 70 and 71 above). 154. The Court observes that in the present case the parties' observations in respect of Article 13 arrived before 4 May 2010, the date on which the Compensation Act entered into force. The observations did not contain any reference to the new legislative development. However, the Court accepts that since 4 May 2010 the applicant has been entitled to use the new remedy (see paragraph 71 above). 155. The Court observes that in the pilot judgment cited above it stated that it would be unfair to request the applicants, whose cases had already been pending for many years in the domestic system and who have come to seek relief at the Court, to bring again their claims before domestic tribunals (see Burdov (no. 2), cited above, § 144). In line with this principle, the Court decided to examine the applicant's complaint of excessive length of criminal proceedings on its merits and found a violation of Article 6 § 1 of the Convention. 156. However, the fact of the examination of the merits of the applicant's length-of-proceedings complaint should in no way be interpreted as predetermining the Court's assessment of the quality of the new remedy. It will examine this question in other cases more suitable for such analysis. The Court does not consider the present case to be suitable, particularly in view of the fact that the parties' observations were made in the context of the situation that existed before the introduction of the new remedy (see, for similar reasoning, Kravchenko and Others (military housing) v. Russia, nos. 11609/05, 12516/05, 17393/05, 20214/05, 25724/05, 32953/05, 1953/06, 10908/06, 16101/06, 26696/06, 40417/06, 44437/06, 44977/06, 46544/06, 50835/06, 22635/07, 36662/07, 36951/07, 38501/07, 54307/07, 22723/08, 36406/08 and 55990/08, §§ 40-45, 16 September 2010, and Vasilchenko v. Russia, no. 34784/02, §§ 54-59, 23 September 2010). 157. Having regard to these special circumstances, the Court does not consider it necessary to continue a separate examination of the complaint under Article 13 in the present case. VI. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION 158. The applicant complained under Article 34 of the Convention that on a number of occasions State officials had exerted pressure on him in connection with his application lodged with the Court. In particular, he claimed that the officials had tried to force him to settle the case in return for a promise that he would be allowed to stay in the detention facility in the Udmurtiya Republic. He further complained that the prison administration had impeded the dispatch of his letters to his representative. 159. Article 34 of the Convention reads, in so far as relevant, as follows: “The Court may receive applications from any person ... claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” A. Submissions by the parties 160. The Government stressed that the two meetings with the applicant held by Ms Rassadina in August 2008 had been organised, further to a request from the Representative of the Russian Federation at the European Court of Human Rights, for the sole purpose of attempting to settle the case pending before the Court. On no occasion had the State officials compelled the applicant by the use of pressure or coercion to withdraw his application from the Court. They had merely explained the legal consequences for the applicant of a settlement and attempted to determine his position on the matter. The applicant's refusal to accept the friendly settlement agreement proposed by the State officials did not affect his situation. The Government argued that his transfer to the correctional colony in the Novosibirsk Region had been carried out in accordance with the requirements of Russian law, in particular section 73 of the Code on the Execution of Criminal Sentences, as the applicant had lived in Novosibirsk prior to his conviction, had family there and had been sent to serve his sentence in a correctional colony in the Novosibirsk Region following his final conviction. He had been detained in the Udmurtiya Republic temporarily, having been placed in a specialised medical detention facility. The Government insisted that the applicant also had not argued that he had been threatened or intimidated. They drew the Court's attention to the fact that it had taken almost eight months after the meetings with Ms Rassadina before the applicant had complained about them to the Court. In the Government's opinion, by lodging his Article 34 complaint the applicant had merely attempted to manipulate the State into allowing his further stay in the detention facility in the Udmurtiya Republic. The complaint to the Court was sent not long before the transfer was to be effected. The Government noted that the applicant had never made use of domestic avenues to seek a stay or annulment of his transfer to the Novosibirsk Region. 161. The Government further submitted that the Representative of the Russian Federation at the European Court of Human Rights had sent a letter to the head of the Russian Federal Service for Execution of Sentences prohibiting any future direct consultations with inmates whose cases, pending before the Court, had been notified to the Government. The Representative stated that any friendly settlement consultations were to be carried out only with the Court's participation or by the Representative himself. 162. The applicant argued that by virtue of the domestic legal norms he was to serve his sentence in the Udmurtiya Republic. Therefore, having known of that legal requirement, he had refused to settle the case when approached by State officials. He further stressed that the only ties he had had with the Novosibirsk Region had been severed when his mother had died. He had kept a flat there, but all his remaining relatives lived in the Udmurtiya Republic. 163. In his letter which reached the Court in September 2008, the applicant, without providing any further details, complained that the authorities had impeded his correspondence with his representative. He further alleged that during the two meetings in August 2007 Ms Rassadina had threatened him with transfer to a correctional colony in the Novosibirsk Region should he refuse to sign a friendly settlement agreement. She had also allegedly promised that the applicant would be denied any contact with his family and that all his incoming and outgoing correspondence with the Court and his representative would be blocked. The applicant submitted that following his refusal to sign the friendly settlement agreement the administration of the detention facility in the Udmurtiya Republic had not allowed any meetings between him and his wife. At the same time he argued that he had been forced to hand to his wife all the letters which he had wished to send to the Court or his representative, as he had been certain that the facility administration would not dispatch them. He further stressed that he had been unable to complain to the domestic authorities about the administration's unlawful actions as his letters had been destroyed by the facility administration and he had had no contact with the outside world as his wife had been denied permission to visit him. B. The Court's assessment 1. Interference with correspondence 164. The Court notes the applicant's complaint that Russian authorities had impeded his correspondence with his representative, as well as preventing any contact with the latter or family members, and that this, as a result, had allegedly rendered the applicant's communication with the Court more difficult. In this respect, accepting the direct link which exists between the applicant's communication with his representative and the effective exercise of the applicant's right of petition (see Öcalan v. Turkey [GC], no. 46221/99, § 200, ECHR 2005‑IV), the Court observes that the applicant did not provide any details of the alleged interference by the authorities with his letters to the representative and did not corroborate his general complaint of alleged hindrance by any evidence of delays in transmitting his letters to the representative or of tampering with his correspondence. He merely mentioned that the transmission of his two letters to the Court in July 2008 had been delayed by at least four days. While noting that the applicant has not made a formal complaint to the Court about that alleged incident, the Court reiterates that the occasional stopping of an applicant's letter to the Court will not necessarily raise an issue under Article 34 of the Convention (see Hosein v. the United Kingdom, no. 18264/91, Commission decision of 8 September 1993), particularly as it is apparent that, before or after the incident, the applicant's letters to the Court (or others) were sent without hindrance, and that even delays of some weeks in transmitting the applicant's letters to the Court will not be always regarded as significant or as hindering the exercise of the applicant's right of petition (see Valašinas v. Lithuania, no. 44558/98, §§ 134-137, ECHR 2001‑VIII). 165. However, the Court cannot overlook the fact that the two letters allegedly handed over by the applicant to the prison administration in July 2008 to be subsequently dispatched to the Court have never reached it. In this respect, the Court doubts the validity of the applicant's allegation that he asked the prison administration to transmit those letters. It firstly observes that since the appointment of the representative in 2007 and the Court's subsequent notification to the applicant that it would correspond only with the representative, the applicant has approached the Court directly, bypassing his representative. In this respect, the Court notes that the applicant did not explain what special circumstances had driven him to communicate directly with the Court in July 2008. He also did not specify why the two letters should have been withheld by the prison administration. At the same time, given the fact that the copies of the applicant's July letters were attached to the letter of his representative of 19 September 2008 and the Court was able to study them, it does not see that their content has any bearing on the outcome of the present case. 166. In the circumstances of the present case, and having regard to the fact that all of the applicant's previous letters had been sent without any delay, the Court is not convinced that there is any evidence of obstruction of the exercise of the applicant's right of individual application as regards his correspondence with the Court or his representative (see, mutatis mutandis, Cooke v. Austria, no. 25878/94, §§ 46-49, 8 February 2000). 167. Furthermore, the Court attributes particular weight to the fact that the applicant's submissions pertaining to the alleged hampering of his right of petition were particularly confusing and inconsistent. For instance, while arguing that he had been denied contact with his wife and had been precluded from communicating with his representative, the applicant at the same time claimed that he had handed the letters over to his wife whenever the facility administration had allegedly delayed their dispatch or had refused to transmit them and that he had been allowed to have at least one phone conversation with his representative. The Court is also mindful of the fact that numerous letters from the applicant's representative to the Court, including those received in 2008, were always accompanied by the applicant's lengthy handwritten submissions. There is therefore nothing to indicate that the applicant was hindered in the exercise of his right of individual application to any significant degree as regards this aspect of his complaint under Article 34. 2. Visits by State officials 168. The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted by Article 34 that applicants or potential applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see, among other authorities, Akdivar and Others v. Turkey, 16 September 1996, § 105, Reports 1996‑IV, and Aksoy v. Turkey, 18 December 1996, § 105, Reports 1996-VI). In this context, “pressure” includes not only direct coercion and flagrant acts of intimidation but also other improper indirect acts or contacts designed to dissuade or discourage applicants from pursuing a Convention remedy (see Kurt v. Turkey, 25 May 1998, § 159, Reports 1998‑III). 169. Furthermore, whether or not contacts between the authorities and an applicant are tantamount to unacceptable practices from the standpoint of Article 34 must be determined in the light of the particular circumstances of the case. In this respect, regard must be had to the vulnerability of the complainant and his or her susceptibility to influence exerted by the authorities (see Akdivar and Others, cited above, § 105, and Kurt, cited above, § 160). The applicant's position might be particularly vulnerable when he is held in custody with limited contacts with his family or the outside world (see Cotleţ v. Romania, no. 38565/97, § 71, 3 June 2003). Even an informal “interview” with the applicant, let alone his or her formal questioning in respect of the Strasbourg proceedings, may be regarded as a form of intimidation (contrast Sisojeva and Others v. Latvia [GC], no. 60654/00, §§ 117 et seq,, ECHR 2007‑II). 170. The Court notes that the applicant alleged that he had been contacted by a State official in August 2007. He submitted that the official had tried to force him to settle the case pending before the Court and had offered him the possibility of remaining in the detention facility in the Udmurtiya Republic in exchange for his decision to withdraw the application before the Court. The Government admitted that a high-ranking official from the Federal Service for Execution of Sentences, Ms Rassadina, had talked to the applicant in the presence of the head of the detention facility, and on a request from the Representative of the Russian Federation to the Court, on two occasions in August 2007, in an attempt first to determine the applicant's terms for settling the case pending before the Court and then to sign the friendly settlement agreement drafted in line with the applicant's demands. 171. The Court observes that neither the applicant nor his representative have adduced any concrete or independent proof of acts of intimidation or harassment calculated to hinder the conduct by the applicant of the proceedings which he brought before the Court. In fact, apart from arguing in the April letter to the Court that the authorities had enticed him with the annulment of his transfer to a colony in the Novosibirsk Region and suggested that he sell a flat in Novosibirsk to make his prolonged stay in the Udmurtiya Republic legitimate, the applicant did not indicate any particular instance of alleged coercion or intimidation on the part of the Russian authorities. Having said that, the Court, however, does not lose sight of the fact that in the letter received by the Court in September 2008 the applicant amended his description of his contacts with the authorities, arguing that Ms Rassadina had also threatened to stop him having contact with family members, with his representative and with the Court. However, in view of the conclusions in paragraphs 164-167 above, and finding it peculiar that the applicant did not raise those allegations in the letter of 7 April 2008, the Court does not consider them to be credible. Against this background, the Court's evaluation of the evidence before it leads it to find, for the reasons laid down below, that there is an insufficient factual basis on which to conclude that the authorities of the respondent State have intimidated or harassed the applicant in circumstances which were calculated to induce him to withdraw his application or otherwise interfere with the exercise of his right of individual petition (see, for similar reasoning, Aydın v. Turkey, 25 September 1997, §§ 116-117, Reports 1997‑VI). 172. In particular, in assessing the very fact of the State's contacts with the applicant, the Court reiterates that not every enquiry by the authorities about an application pending before the Court can be regarded as “intimidation”. The Court emphasises that Article 34 does not prevent the State from taking measures in order to improve the applicant's situation or solve the problem which is at the heart of the Strasbourg proceedings. Moreover, acting on the principle that, like any judicial system, the Convention system is open to “out of court” and “in court” settlements or agreements between the parties at all stages of the proceedings, the Court has never underestimated the importance of the settlement work and has always encouraged and actively promoted settlement negotiations between the parties. This approach reflects the traditional view that the Convention is not an instrument of accusation or prosecution of Contracting States, but a collective fulfilment of their obligations and undertakings, the surveillance of which was entrusted to the Court under Article 19 of the Convention. 173. The Court accepts that the shape of settlement negotiations may vary, largely depending on the relationship between the parties. Negotiations may be triangular with the Court at the apex but may vary down to the point of a straight line of bilateral negotiations between the parties. It is obvious that where the settlement has been secured in collaboration with the Court, no question would normally arise as to whether the applicant has acted of his own free will. However, to deny a State the right to contact an applicant directly for the purpose of settling the case pending before the Court would have the effect of substantially discouraging settlement discussions, stemming the free flow of ideas and information, offers and claims within the settlement negotiations, and ultimately placing a heavy burden on the Court. The parties should be left with ample room to explore the possibility of resolving disputes otherwise than by a judgment. At the same time, the Court requires that steps taken by a State in the context of settlement negotiations with an applicant should not take on any form of pressure, intimidation or coercion. 174. With this word of caution in mind, the Court turns to the circumstances of the present case. It notes the Government's argument that by virtue of the Russian Code on the Execution of Criminal Sentences, in particular section 73, it was within the State's discretion to assign the applicant to a correctional facility in the Novosibirsk Region, that is the region where he had lived before the conviction (see paragraph 72 above). The applicant started serving his sentence in the Novosibirsk Region and was only transferred to a medical detention facility in the Udmurtiya Republic temporarily. The Court is unconvinced by the applicant's argument that the State officials had threatened him with transfer back to the Novosibirsk Region to influence his decision to settle the case pending before the Court. In this respect, the Court attributes particular weight to the fact that it was more than seven months after the negotiations between the applicant and State officials had taken place, and not long before the transfer back to the Novosibirsk Region was to be effected, that he decided to raise his Article 34 complaint with the Court. In view of the finding of the absence of any indication of interference by the State with the applicant's correspondence or hindrance of his contact with his representative or wife (see paragraphs 164-167 above), the Court is prepared to accept the Government's argument that the applicant's delay in filing the complaint under Article 34 was a sign that the complaint itself was no more that a disguised attempt to induce the authorities to annul his transfer to the Novosibirsk Region. This conclusion is strengthened by the Court's inability to find any signs of negative consequences for the applicant following the State's failure to secure a friendly settlement. In addition, the Court does not lose sight of the fact that the applicant has never attempted to approach the competent domestic authorities with a request to determine his further place of detention in the Udmurtiya Republic. In these circumstances the Court is unable to conclude that the actions of the authorities can be described as “improper”. It follows that the Government have not breached their obligations under Article 34 of the Convention as regards their contact with the applicant for the purpose of securing a friendly-settlement agreement. VII. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 175. Lastly, the Court has examined the other complaints submitted by the applicant. However, having regard to all the material in its possession, and in so far as these complaints fall within the Court's competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. VIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION 176. 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 177. The applicant claimed 65,000 euros (EUR) in respect of non-pecuniary damage. Without indicating the exact sum or providing any documents in support, the applicant further claimed compensation for pecuniary damage. 178. The Government submitted that the applicant's claim for compensation for pecuniary damage should not be granted as he had neither indicated the sum nor provided any evidence in support of his allegation that such pecuniary damage had, in fact, been sustained. They further stressed that the claim for compensation for non-pecuniary damage was excessive and unsubstantiated. 179. As regards the applicant's claim for compensation for pecuniary damage, the Court finds no reason to make any award under this head in the absence of the indication of the sum of expenses which the applicant had allegedly incurred or any proof that any pecuniary damage had, in fact, been sustained. 180. As to the non-pecuniary damage claim, the Court reiterates, firstly, that the applicant cannot be required to furnish any proof of the non-pecuniary damage he sustained (see Gridin v. Russia, no. 4171/04, § 20, 1 June 2006). The Court further observes that the applicant suffered humiliation and distress on account of the inhuman and degrading conditions of his detention and the excessive length of criminal proceedings. In these circumstances, the Court considers that the applicant's suffering and frustration cannot be compensated by a mere finding of a violation. However, the particular amount claimed appears excessive. Making its assessment on an equitable basis, the Court awards the applicant EUR 15,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. B. Costs and expenses 181. The applicant also claimed EUR 35,000 for the costs and expenses incurred before the domestic courts and the Court. 182. The Government argued that the applicant's failure to submit any documents on the basis of which his claim could be verified rendered his claim inadmissible. 183. 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 observes that in 2007 the applicant issued the lawyers from the International Protection Centre in Moscow with authority to represent his interests in the proceedings before the Court. It is clear from the length and detail of the pleadings submitted by the applicant that a great deal of work was carried out on his behalf. Keeping in mind that the applicant was granted legal aid by the Court in the amount of 850 euros and that some of his complaints were declared inadmissible, the Court awards EUR 3,000 to the applicant in respect of costs and expenses for his representation before the Court, together with any tax that may be chargeable on that amount. C. Default interest 184. 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 1. Declares admissible the complaint concerning the conditions of the applicant's detention in facility no. IZ-18/1 from 30 January 2002 to 16 July 2004, the ill-treatment of the applicant by warders on 10 July 2003, the ineffectiveness of the investigation into his ill-treatment complaints, the excessive length of the criminal proceedings on robbery charges, and the absence of an effective remedy by which to complain about that excessive length, and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 3 of the Convention on account of the conditions of the applicant's detention in facility no. IZ-18/1 from 30 January 2002 to 16 July 2004; 3. Holds that there has been no violation of Article 3 of the Convention on account of the treatment to which the applicant was subjected on 10 July 2003 by the warders; 4. Holds that there has been no violation of Article 3 of the Convention on account of the investigation into the applicant's ill-treatment complaints; 5. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the excessive length of the criminal proceedings; 6. Holds that there is no need for separate examination of the complaint under Article 13 of the Convention; 7. Holds that the respondent State has not failed to comply with its obligations under Article 34 of the Convention on account of the alleged hindering of the applicant's correspondence and contacts with his representative or the Court; 8. Holds that there has been no violation of Article 34 of the Convention on account of the contacts between the applicant and State authorities; 9. 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, the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement: (i) EUR 15,000 (fifteen thousand euros) in respect of non-pecuniary damage; (ii) EUR 3,000 (three thousand euros) in respect of costs and expenses incurred before the Court; (iii) any tax that may be chargeable to the applicant on the above amounts; (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; 10. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 27 January 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident

FIRST SECTION CASE OF PETRINA v. CROATIA (Application no. 31379/10) JUDGMENT STRASBOURG 13 February 2014 FINAL 13/05/2014 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Petrina v. Croatia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Isabelle Berro-Lefèvre, President,Mirjana Lazarova Trajkovska,Julia Laffranque,Linos-Alexandre Sicilianos,Erik Møse,Ksenija Turković,Dmitry Dedov, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 21 January 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 31379/10) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Stipe Petrina (“the applicant”), on 25 May 2010. 2. The applicant was represented by Mr A. Korljan, a lawyer practising in Zadar. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3. The applicant alleged, in particular, that he had been convicted in criminal proceedings without having had an opportunity to appear at the hearing. 4. On 21 March 2012 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1954 and lives in Primošten. 6. On 31 March 2003 the Šibenik Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Šibeniku) indicted the applicant in the Šibenik Municipal Court (Općinski sud u Šibeniku) on charges of attempted grievous bodily harm. 7. The first hearing before the Šibenik Municipal Court was scheduled for 16 March 2006. 8. On the day of the hearing, the applicant informed the Šibenik Municipal Court that he was unable to appear at the hearing owing to a medical condition. He also submitted medical documentation in that regard. 9. Several witnesses also failed to attend the hearing and the applicant’s lawyer informed the trial court that she no longer represented the applicant. The hearing was adjourned and the next hearing was scheduled for 26 April 2006. 10. At the hearing of 26 April 2006 the applicant, who was not properly summoned, failed to appear. The president of the trial panel ordered that the applicant be summoned by a letter indicating that his defence lawyer no longer represented him and that he should either appoint another lawyer or the hearing would be held in the absence of a lawyer. 11. On 22 May 2006 the applicant informed the Šibenik Municipal Court that he was not able to appear for trial owing to his medical condition. He explained that he would be unavailable for a certain period of time because he was required to undergo medical treatment and promised to inform the court of the progress of that treatment. He therefore asked that the proceedings be stayed until he was able to appear at the hearings. The applicant also submitted back-up medical documentation. 12. At a hearing on 23 May 2006 the Deputy State Attorney asked the trial court to commission a medical report concerning the applicant’s capacity to take part in the proceedings given his state of health. 13. On 30 May 2006 a medical expert, M.D.G., submitted a report indicating that the applicant suffered from heart arrhythmia. She considered that he would not be able to take part in the hearings for a period of time which was hard to predict. She therefore suggested that the trial court re-examine his condition after a month. 14. On 11 August 2006 the Šibenik Municipal Court invited the applicant to submit medical documentation noting the progress of his treatment. 15. The applicant complied with the order and submitted the documentation on 16 August 2006. The Šibenik Municipal Court then commissioned another medical report. 16. On 13 September 2006 medical expert M.D.G. submitted a further report, indicating that the applicant’s state of health had not stabilised despite the medical treatment he had been receiving and that he could not appear at the hearings. She reiterated that it was not possible to predict the exact period of time in which he would not be able to take part in the proceedings and suggested that his condition be reassessed at appropriate intervals. 17. Another medical report was commissioned on 13 March 2007 from a forensic expert, a cardiologist and a psychiatrist. 18. On 15 April 2007 the medical experts, M.D.G., D.M. and D.B., submitted a joint report. They found that the applicant was not able to take part in the hearings and that a strong triggering factor, such as stress, could lead to a heart attack with a possibly fatal outcome. 19. On 23 April 2007 the Šibenik Municipal Court commissioned a further medical report from medical experts M.D.G., D.M. and D.B. 20. The medical experts submitted their report on 19 June 2007, in which they noted: “... we still consider that the accused’s appearance at the hearing would be a risk factor which could (although it might not) lead to a heart attack, and how that will further develop it is hard to predict, which makes Stipe Petrina theoretically unable to appear at the hearing. However, we consider that his appearance at the hearing would be possible only in the presence of [a] doctor, namely a medical team equipped for prompt intervention in the event of a heart attack at the trial.” 21. The Šibenik Municipal Court scheduled a hearing for 20 November 2007. It summoned the applicant, the applicant’s lawyer, B.B., whose services he had engaged on 11 October 2007, and a cardiologist, A.S., to the hearing. 22. At a hearing on 20 November 2007 the Šibenik Municipal Court noted that the applicant’s defence lawyer had informed it on 19 November 2007 that she could not attend the hearing because she was on maternity leave. The applicant was not properly summoned and did not attend the hearing. The cardiologist, A.S., did not attend the hearing, nor did he excuse his absence. The hearing was adjourned and the next hearing was scheduled for 19 December 2007. 23. On 13 December 2007 the applicant informed the Šibenik Municipal Court that he could not appear at the hearing scheduled for 19 December 2007 due to his medical condition. He referred to the medical expert report of 19 June 2007. 24. On 19 December 2007 the Šibenik Municipal Court, relying on Article 10 of the Code of Criminal Procedure (see paragraph 34 below), dismissed the applicant’s request for adjournment as abusive on the grounds that the necessary medical back-up had been secured by summoning the cardiologist, A.S., to the hearing. The court considered that the applicant was trying to delay the proceedings. It also found that, according to the information available to it, the applicant had taken part in a number of other court proceedings as claimant and private prosecutor. 25. On the same date, the Šibenik Municipal Court held a hearing at which the applicant did not appear and to which his defence counsel had not been summoned. The cardiologist, A.S., again did not attend the hearing, nor did he excuse his absence. The hearing was held in the presence of the Deputy State Attorney and the victim’s representative. After the hearing, at which the trial court examined the evidence and written records of witnesses’ oral statements, it found the applicant guilty as charged and sentenced him to four months’ imprisonment, suspended for one year. 26. On 27 June 2008 the applicant lodged an appeal before the Šibenik County Court (Županijski sud u Šibeniku) against the decision to hold a hearing in his absence. The applicant complained that he had not been able to appear at the hearing owing to his medical condition and that the trial court’s findings that he had taken part in a number of other court proceedings had been unsubstantiated and untrue, as while he had been a party to the other proceedings he had never taken part in the trials. 27. On 17 and 18 July 2008 the applicant lodged further statements of appeal before the Šibenik County Court asking that court to quash the first-instance judgment and to order a retrial. He reiterated that the hearing of 19 December 2007 had been held in his absence, even though he had not been able to appear at the hearing owing to his medical condition. He also complained that the necessary medical back-up at the hearing had not been ensured, as a medical team had never been obtained and the cardiologist, A.S., had twice failed to attend the hearings. Moreover, the defence had never been informed that a back-up medical team would be provided, and had the trial court considered that he was abusing his procedural rights, it should have ensured that he had legal representation at the trial. 28. During the appeal proceedings, the Šibenik County State Attorney’s Office (Županijsko državno odvjetništvo u Šibeniku), which represented the prosecution case on appeal, asked the Šibenik County Court to allow the applicant’s appeal and to order a retrial. 29. On 10 October 2008 the Šibenik County Court, in closed session, without holding a hearing, dismissed all the appeals and upheld the first-instance judgment. That court found that the applicant had been abusing his procedural rights and that he had been doing nothing more than trying to delay the trial. 30. On 10 February 2009 the applicant lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) complaining that the hearing before the first-instance court had been held in his absence. 31. On 29 April 2010 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded. II. RELEVANT DOMESTIC LAW A. Constitution 32. The relevant provision of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010) reads as follows: Article 29 “In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law. In respect of any criminal charge brought against him, the suspect, defendant or accused shall have the following rights ... - to be tried in his presence, if he is available to the court...” B. Criminal Code 33. The relevant provisions of the Criminal Code (Kazneni zakon, Official Gazette nos. 110/1997, 27/1998, 50/2000, 129/2000, 51/2001) provide: Article 98 “(1) Anyone who inflicts grievous bodily harm on another or seriously impairs another’s health shall be sentenced to imprisonment for a term from three months to three years. ... (4) An attempt of the offence under paragraph 1 of this Article shall be also punishable.” C. Code of Criminal Procedure 34. The relevant provisions of the Code of Criminal Procedure in force at the time (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002, 63/2002, 62/2003 and 115/2006) provided: Article 10 “... (2) The court shall conduct the proceedings without delay and it shall prevent any abuse of process by the participants. (3) The court shall, by issuing an order, prevent any action of a party, defence lawyer, victim or his or her representative, obviously aimed at the abuse of rights under this Code. An appeal against the order shall not have suspensive effect. (4) In case of the application of paragraph 3 of this Article, upon the motion of the investigating judge or the president of the trial panel, the president of the court shall appoint a legal aid lawyer to represent the defendant.” Head XXVI SUMMARY PROCEDURE Article 430 “In proceedings before the municipal courts for offences punishable by a fine or up to five years’ imprisonment, the provisions of Articles 431-445 of this Code shall be applicable, and if they do not regulate a specific situation, the other provisions of this Code shall be applicable.” Article 438 “(1) The judge (president of the trial panel or a single judge) shall summon to the hearing the defendant and his defence lawyer, the victim and his representative, witnesses, [any] expert witnesses and interpreter, and obtain all items [of evidence] that will be examined at the hearing. (2) ... In the letter summoning the defendant he shall be warned that a hearing might be held in his absence if the necessary conditions are met (Article 441 § 3). ...” Article 441 “ ... (3) The court may decide to hold a hearing in the absence of the defendant if he fails to appear although he had been properly summoned or could not be summoned due to his failure to inform the court about a change of address, and if his presence is not necessary and he has been questioned and entered his plea on the charges.” 35. The relevant provisions of the amended Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 152/2008, 76/2009, 80/2011, 121/2011, 91/2012, 143/2012) provide: Article 502 “... (2) The provisions concerning the reopening of criminal proceedings shall be applicable in case of a request for revision of any final court decision in connection with a final judgment of the European Court of Human Rights by which, in respect of the defendant, a violation of the rights and freedom under the Convention for the Protection of Human Rights and Fundamental Freedoms has been found. (3) A request for reopening of proceedings in connection with a final judgment of the European Court of Human Rights can be lodged within a thirty-day time-limit starting from the date on which the judgment of the European Court of Human Rights becomes final.” Article 574 “... (2) If prior to the entry into force of this Code a decision was adopted against which a legal remedy is allowed pursuant to the provisions of legislation relevant to the proceedings [in which the decision was adopted], ... the provisions of that legislation shall be applicable [to the proceedings concerning the remedy], unless otherwise provided under this Code. (3) Articles 497-508 of this Code shall accordingly be applicable to requests for the reopening of criminal proceedings made under the Code of Criminal Procedure (Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002, 62/2003, and 115/2006).” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 36. The applicant complained that he had been convicted in the criminal proceedings without having had an opportunity to appear at the hearing. He relied on Article 6 of the Convention which, in so far as relevant, reads as follows: “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: (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ...” A. Admissibility 37. The Court notes that the application 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 38. The applicant submitted that the medical expert reports commissioned during the proceedings had clearly indicated that he had not been able to take part in the hearings owing to his state of health. His appearance at court would only have been possible had the Šibenik Municipal Court ensured the presence of a medical team at the trial, which it had failed to do. It had summoned doctor A.S., who had not only never appeared at the hearings but whose presence would in any event have been insufficient to meet the requirements set out in the medical reports. Thus, in the applicant’s view, the mere summoning of doctor A.S. had not satisfied the requirement of effective medical care being made available at the hearings. Moreover, there had been no good reason for holding a hearing in the absence of his defence lawyer. As to the domestic courts’ reference to the fact that he had been involved in other proceedings at the same time, the applicant asserted that while it was true that he had been a party to several sets of proceedings he had never attended the court hearings in those cases and had always been represented by a lawyer. 39. The Government argued that the applicant had had every opportunity to take part in the hearings. He and his lawyer had been duly summoned to the court hearings and the Šibenik Municipal Court had ensured the presence of a doctor, as required by the medical expert reports. There had therefore been no reason for the applicant not to appear. The Government pointed out that the medical expert reports had indicated that the applicant had been suffering from health problems of a temporary nature and not that he was permanently unable to attend court hearings. The report of 19 June 2007 had therefore indicated that the applicant could attend the court hearings if the necessary medical support was available. In the Government’s view, it had been for the domestic courts to assess whether there had been a good reason for the applicant not to appear at the hearings and accordingly to take the necessary measures under applicable domestic law, which, given that the applicant was being tried as an accused under summary procedure, had allowed the court to hold a hearing in his absence. In particular, the trial court had had to conduct the proceedings before it efficiently and to prevent any unjustified obstruction of the process. It had therefore had the ability to refuse a request for the adjournment of the hearings, particularly when the circumstances had suggested that the applicant had decided not to appear. The Government considered that the applicant had attempted to delay the proceedings in order that the prosecution became time-barred. As to the fact that the applicant’s lawyer B.B. had not been summoned to the hearing of 19 December 2007, the Government pointed out that the applicant had engaged her services at the time when it had been obvious that she could not attend the hearings because she was on maternity leave and therefore considered that there had been no reason for the trial court to summon her to the hearing. Lastly, the Government pointed out that the criminal proceedings against the applicant, taken as a whole, had been fair. 2. The Court’s assessment (a) General principles 40. The Court will examine the complaint under the provisions of paragraphs 1 and 3 of Article 6 taken together, which are to be seen as particular aspects of the right to a fair trial (see, for example, Krombach v. France, no. 29731/96, § 82, ECHR 2001‑II). 41. The Court notes at the outset that the present case is distinguishable from the cases in which the applicants were not informed of the criminal proceedings against them and where they were tried in absentia (see Goddi v. Italy, 9 April 1984, Series A no. 76; Colozza v. Italy, 12 February 1985, Series A no. 89; and Sejdovic v. Italy [GC], no. 56581/00, ECHR 2006‑II); or in which the applicant absconded and sought to evade trial (see Medenica v. Switzerland, no. 20491/92, ECHR 2001‑VI); and from those in which the applicants were served with notice of the date of the hearing but decided not to appear and later complained about the effectiveness of their legal representation at the hearing (see Poitrimol v. France, 23 November 1993, § 32, Series A no. 277‑A; Lala v. the Netherlands, 22 September 1994, § 30, Series A no. 297‑A; Pelladoah v. the Netherlands, 22 September 1994, § 37, Series A no. 297‑B; and Van Geyseghem v. Belgium [GC], no. 26103/95, § 28, ECHR 1999‑I). 42. In view of the arguments adduced by the domestic authorities (see paragraphs 24, 25 and 29 above) and submitted by the Government, the Court considers that the situation in the present case bears a certain resemblance to those examined by the Court in the cases of Ananyev and Idalov, in which the applicants were prevented from taking part in their respective trials on the grounds of their improper behaviour (see, mutatis mutandis, Ananyev v. Russia, no. 20292/04, § 43, 30 July 2009, and Idalov v. Russia [GC], no. 5826/03, § 175, 22 May 2012). 43. In the Idalov case the Court reiterated that while it is of paramount importance that a defendant in criminal proceedings should be present during his or her trial, proceedings held in the absence of the accused are not always incompatible with the Convention if the person concerned can subsequently obtain from a court which has tried him a fresh determination of the merits of the charge, in respect of both law and fact (see Idalov, cited above, § 170). 44. The proceedings as a whole may be said to have been fair if the defendant was allowed to appeal against the conviction in absentia and entitled to attend the hearing in the court of appeal entailing the possibility of a fresh factual and legal determination of the criminal charge (see Jones v. the United Kingdom (dec.), no. 30900/02, 9 September 2003). 45. Neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial. However, if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate with its importance. Furthermore, it must not run counter to any important public interest. Nevertheless, before an accused can be said to have, through his conduct, implicitly waived an important right under Article 6 of the Convention, it must be shown that he could reasonably have foreseen the consequences of his conduct in this regard (see Idalov, cited above, §§ 172-173). 46. The Convention leaves Contracting States a wide discretion as regards the choice of the means calculated to ensure that their legal systems are in compliance with the requirements of Article 6. The Court’s task is to determine whether the standards required under Article 6 were met. In particular, the procedural means offered by domestic law and practice must be shown to be effective where a person charged with a criminal offence has neither waived his right to appear and to defend himself nor sought to evade trial (ibid., § 174). 47. Although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial (see Poitrimol, cited above, § 34). A person charged with a criminal offence does not lose the benefit of this right merely on account of not being present at the trial (see Mariani v. France, no. 43640/98, § 40, 31 March 2005). It is of crucial importance for the fairness of the criminal justice system that the accused be adequately defended, both at first instance and on appeal (see Ananyev, cited above, § 41). (b) Application of these principles to the present case 48. In the instant case the trial was held in the applicant’s absence because the trial court found his failure to appear at the hearing abusive and thus refused to adjourn the hearing. At the same time, the applicant argued that he was not able to appear at the hearing owing to his state of health. 49. The Court notes that, relying on his state of health, the applicant asked the trial court to stay the proceedings until he had finished his medical treatment so that he could appear for trial in person (see paragraph 11 above). His arguments in that regard were supported by three medical expert reports of 30 May 2006, 13 September 2006 and 15 April 2007, which conclusively indicated that he was not able to appear in person for the hearings because he was suffering from heart arrhythmia and that a triggering factor such as stress could lead to an acute heart attack (see paragraphs 13, 16 and 18 above). 50. On the basis of these findings the trial court adjourned several hearings and on 23 April 2007 commissioned another medical report. This report indicated that there was a possibility that the applicant could appear at the hearing but only if medical back-up was available (see paragraph 20 above). 51. The trial court then summoned doctor A.S. to the hearings on 20 November and 19 December 2007. Although the trial court never informed the applicant that the doctor had been summoned, and although in fact doctor A.S. never appeared at the hearings, providing no reasons for his absence (see paragraphs 22 and 25 above), the trial court found the applicant’s absence from the hearing on 19 December 2007 to be abusive. It considered that the applicant’s absence was unjustified since, despite the medical back-up that had been arranged, he had failed to appear at the hearing and because at the same time he had been involved in other court proceedings (see paragraph 24 above). It therefore held the hearing in his absence and convicted him on charges of attempted grievous bodily harm (see paragraph 25 above). 52. The Court has already held that it is essential for the proper administration of justice that dignity, order and decorum be observed in the courtroom as the hallmarks of judicial proceedings. The flagrant disregard by a defendant of elementary standards of proper conduct neither can nor should be tolerated (see Ananyev, cited above, § 44; and Idalov, cited above, § 176). The Court does not find such flagrant disregard for the proper administration of justice by the applicant in the present case. 53. In this respect, the Court observes that the medical experts indicated that the applicant could only appear at the trial without endangering his life if the trial court ensured adequate medical back-up at the hearing. The Court therefore considers, noting that the Contracting States must exercise diligence in order to ensure that the rights guaranteed by Article 6 are enjoyed in an effective manner (see Colozza, cited above, § 28), that the mere summoning of a physician to the trial did not meet this requirement, necessary for the applicant’s effective participation in the trial. Even leaving aside the fact that a medical team as indicated in the expert report was not put in place, the physician who was summoned to the hearing never actually attended court nor provided any excuse for his absence. 54. Moreover, as the applicant pointed out in his appeal (see paragraph 27 above), he was never informed that the physician had been summoned to the trial, and thus his relying on the medical expert report indicating that his appearance in court could only be possible in the presence of a medical team in no way signified that he has waived his right to defend himself and to appear before the trial court (see, mutatis mutandis, Zana v. Turkey, 25 November 1997, § 70, Reports of Judgments and Decisions 1997‑VII). 55. The Court also notes that the trial court’s argument that the applicant had been involved in several other proceedings is unsubstantiated. That court provided no reference to the precise proceedings in question or the dates of or circumstances in which the hearings in those proceedings had been held, and neither did the Government furnish any evidence before the Court that the applicant had taken part in a trial in any other set of proceedings. In such circumstances, the applicant’s arguments submitted before the domestic authorities and before the Court (see paragraphs 26 and 38 above) that he had been a party to several proceedings but that he had never taken part in the trials does not appear frivolous and unconvincing. 56. In any event, the Court notes that even if the trial court considered that the applicant had abused his rights by failing to appear at the hearing, and given that the applicant’s lawyer had informed that court that she could no longer represent the applicant (see paragraph 22 above), it was incumbent on the trial court, under the relevant domestic law (see paragraph 34 above; Article 10 § 4 of the Code of Criminal Procedure), to appoint a legal aid lawyer to represent the applicant at trial. The law is clear that a person charged with a criminal offence does not lose the benefit of the right to be represented merely on account of not being present at the trial (see Sejdovic, cited above, § 91). However, the trial court failed to ensure that the applicant had legal representation, which meant that the applicant’s absence from the hearing prevented him from exercising both his right to be present at the trial and to be effectively legally represented thereby upsetting the equality of arms (compare Ananyev, cited above, § 46). 57. The Court must now determine whether the appeal court redressed the violation of the applicant’s right to take part in the trial hearing at first instance (see Idalov, cited above, § 179). 58. The Court observes that in Croatia the jurisdiction of appellate courts extends to both legal and factual issues. The Šibenik County Court thus had full power to review the case at its hearing and to consider all arguments of the parties (for further details of the system of appellate courts in Croatia, see Zahirović v. Croatia, no. 58590/11, §§ 58-60, 25 April 2013). However, the applicant and his defence lawyer were not able to take part in the hearing (see paragraph 29 above) and thus the appeal court failed to cure the defects in the proceedings caused by the trial court. In such circumstances, the only possible means of redressing the defects of the trial proceedings would have been for the appellate court to quash the verdict in its entirety and to refer the matter back for a hearing de novo. By not doing so, the appellate court failed to redress the violation of the applicant’s right to a fair trial (see Idalov, cited above, § 180). 59. The Court therefore finds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 60. Lastly, the applicant complained, relying upon Articles 6 § 3 (a), (b), (c) and (d), and 14 of the Convention, that he had not been properly informed of the charges against him, that he had not been represented by a lawyer of his own choosing, that he had not had an opportunity to question witnesses, and that he had been discriminated against. 61. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of the Convention. It follows that it is inadmissible under Article 35 § 3 as manifestly ill-founded, and must be rejected pursuant to Article 35 § 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 62. 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 63. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage. 64. The Government considered the applicant’s claim excessive, unfounded and unsubstantiated. 65. Having regard to all the circumstances of the present case, the Court accepts that the applicant suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 4,000 in respect of non-pecuniary damage, plus any tax that may be chargeable to him. B. Costs and expenses 66. The applicant also claimed 42,758 Croatian kunas (HRK) for costs and expenses incurred before the domestic courts and for those incurred before the Court. 67. The Government considered the applicant’s claim unfounded and unsubstantiated. 68. 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 considers it reasonable to award the sum of EUR 3,300 covering costs under all heads. C. Default interest 69. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaint under Article 6 §§ 1 and 3 (c) of the Convention concerning the applicant’s absence from the oral hearing admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention; 3. 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,, the following amounts, to be converted into Croatian kunas at the rate applicable at the date of settlement: (i) EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 3,300 (three thousand three hundred euros), plus any tax that may be chargeable to the applicant, 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; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 13 February 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenIsabelle Berro-LefèvreRegistrarPresident

THIRD SECTION CASE OF ABOYA BOA JEAN v. MALTA (Application no. 62676/16) JUDGMENT STRASBOURG 2 April 2019 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 Aboya Boa Jean v. Malta, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Branko Lubarda, President,Vincent A. De Gaetano,Helen Keller,Pere Pastor Vilanova,Alena Poláčková,Georgios A. Serghides,Jolien Schukking, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 12 March 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 62676/16) against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a national of the Ivory Coast, Mr Serge Aboya Boa Jean (“the applicant”), on 27 October 2016. 2. The applicant was represented by Dr N. Falzon, a lawyer practising in Ħamrun. The Maltese Government (“the Government”) were represented by their Agent, Dr P. Grech, Attorney General. 3. The applicant alleged that the deprivation of his liberty had been unlawful and arbitrary, thus in violation of Article 5 § 1 and that the remedy afforded to him to challenge his detention had not been speedy and effective as required by Article 5 § 4. 4. On 10 July 2017 notice of the application was given to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1978 and was at the time of the introduction of the application detained at the Safi detention centre. A. Background to the case 6. On 10 September 2016 the applicant, a refugee from Ivory Coast who claimed to have previously obtained asylum in Armenia, left Russia and arrived in Malta by plane. Upon arrival he presented his documents (including a national passport) to the immigration authorities. 7. According to the applicant he immediately informed the authorities that he was a refugee from Ivory Coast and that he had fled the war in his country many years before. He claimed that he had reached Malta from Armenia, where he had lived as a refugee prior to his arrival in Malta. He also promptly confirmed his intention to seek asylum in Malta, due to his fear that Armenia would return him to Ivory Coast. 8. The applicant was found carrying false Italian identification documents and, according to the Government, when questioned, he informed the police that he had obtained the documents from a friend in Italy and that his intention was to travel to Italy by transiting via Malta. The applicant was also found to be in possession of a travel ticket to Italy. 9. The applicant was denied entry since according to the immigration authorities he was not in possession of the required documentation. On the same day he was taken to police headquarters were he was questioned. During questioning the applicant provided further information concerning his escape from war in Ivory Coast, his life in Armenia and the reasons why he felt he could no longer live there, reasons primarily linked to his skin colour and the lack of physical security. The police confiscated his documents. 10. On the same day, the police (immigration branch) issued a detention order in terms of the Immigration Act (Chapter 217 of the Laws of Malta) and Subsidiary Legislation 420.06 “Reception of Asylum Seekers Regulations” (hereinafter “the Reception Regulations” – see Relevant domestic law below) on the grounds that the elements on which the applicant’s application for international protection had been based could not be determined in the absence of detention, in particular due to the risk of absconding. He was informed that he had the right to appeal this decision before the Immigration Appeals Board (hereinafter “the Board”) within three days. He was further informed that the Board would automatically review this order within seven days from the date of its issuance, which could be extended by a further seven days; and that if he remained in detention a further review would occur every two months. He was informed that he was entitled to free legal assistance. 11. The applicant was accompanied to Safi Barracks detention centre, where he was detained. 12. On 20 September 2016 the applicant applied for international protection and was formally registered as an asylum‑seeker. B. Proceedings before the Board 13. According to documentation submitted by the Government, on 30 September 2016, the applicant appeared before the Board accompanied by one of his lawyers (of choice), but the case was put off to the next board meeting to be held on 5 October 2016, since one of the applicant’s representatives (of choice) was abroad. The applicant appears to contest the existence of this hearing and notes that the Government have not provided any proof of notification of such hearing or what went on. He however claims that even if it did occur his legal aid lawyer was not present as required by law. 14. On 5 October 2016 the Board convened in order to review the legality of the applicant’s detention, in accordance with Regulation 6(3) of the Reception Regulations. The applicant was present with his legal representatives and was provided with an interpreter. 15. According to the applicant, during the hearing before the Board, in the presence of a representative of the Malta Police Force who explained the circumstances of the applicant’s detention, the Board informed the applicant that it had not been able to comply with the deadline provided by the law for the review of his detention since on the date required by the Reception Regulations (namely seven working days from the issuing of the detention order) a Board member was attending a conference overseas and therefore he could not take part in the hearing. Furthermore, the Board stressed that since its members were merely part-time employees meeting once a week and lacking administrative support while being responsible for a vast array of immigration related appeals, it was simply unable to meets its legal obligation and determine the lawfulness of his detention on time. 16. During the hearing the applicant’s representative repeatedly requested the Malta Police Force’s representative and the chairperson of the Board to specify the grounds on which he was being detained. Both the Malta Police Force’s representative and the Board’s chairperson orally indicated “fear of absconding” as the primary reason for the applicant’s detention. 17. The applicant’s representative made written and oral submissions to the Board. He noted, in particular, that from the moment of his first contact with the Maltese authorities the applicant had provided consistent factual information about his identity, nationality, countries of transit, intention to seek asylum in Malta, migration/asylum status in third countries and reasons for flight from Ivory Coast. He had not made any attempt to conceal any information and had acted with honesty, openness and transparency towards the authorities. It followed that he had already presented to the authorities all the elements on which his application for international protection had been based, thus the legal basis on which the authorities had relied in order to justify his detention could not be held applicable to his case and the interference with the applicant’s liberty had not been provided by law. The applicant also claimed that his detention had been neither necessary nor proportionate. In his opinion the immigration police had failed to demonstrate that without the applicant’s detention it would have been impossible for them to determine any elements on the basis of his asylum application. 18. On the same day the Board dismissed the applicant’s complaints and confirmed the legality of his detention. The Board specified that: (i) the elements in question referred to the application for refugee status, which had not yet been determined; (ii) if the applicant left Malta he would be unable to provide the information (elements) required by the Commissioner for Refugees (REFCOM); (iii) the fact that the applicant had been found in possession of a ticket to go to Italy showed that his intention was not to remain in Malta; (iv) “with the fact that he was inadmissible in the first place because he had forged a document, there is no reason to believe that appellant will not abscond”. 19. The Board requested the Principal Immigration Office (PIO) to enquire as to whether all elements had been clarified and given to REFCOM, and whether the applicant would have been given refugee status, in order to ensure that detention did not subsist for longer than was needed. If the period of detention continued because of the asylum proceedings, including an appeal, the PIO were to consider alternatives to detention particularly those listed in Regulation 6(8) of the Reception Regulations S.L. 420.06, as such detention would then no longer be reasonable. C. Proceedings before the Court of Magistrates 20. On 21 October 2016 the applicant applied to the Court of Magistrates relying on Article 409(A) of the Criminal Code to contest the lawfulness of his detention. He argued that there had been no individual assessment of the applicant’s situation, and that it was not clear what elements were still required. He noted that a risk of absconding could not be examined on its own and that Regulation 1(6) of the Reception Regulations S.L. 420.06 could not be interpreted as meaning that detention could be prolonged throughout the entire proceedings. 21. It appears that the immigration police argued that the one fundamental element they expected the applicant to provide was a document confirming the statement that he was recognised as a refugee in Armenia. 22. On the same day the Court of Magistrates upheld the legality of the applicant’s detention. The court found that the applicant was raising the same issues he had raised before the Board, and which had already been decided by it. The court agreed that the risk of absconding under Regulation 6(1) (b) could not be seen on its own but in the light of the whole Regulation. The Reception Regulations, L.S. 420.06, allowed the detention of persons like the applicant ‑ pending a decision on asylum ‑ in order to establish the elements on which such application was based, when it would be difficult to do so in the absence of detention. During the hearing it transpired that further verifications were necessary and that the applicant was at risk of absconding, making the asylum determination impossible. It followed that the applicant’s detention could not be considered unlawful. D. Subsequent happenings 23. The applicant was released from immigrant detention on 8 November 2016, subject to reporting at the police station daily. 24. By a judgment of 19 January 2017, in accordance with his guilty plea, the applicant was found guilty of using a false passport. Although he was liable to imprisonment for a period of six months to two years, the court, in application of Section 22 of the Probation Act (Chapter 446 of the Laws of Malta) conditionally discharged the applicant for three years. 25. On an unspecified date in March 2017 the applicant’s asylum application was rejected. The applicant appealed, which appeal reached the Secretary of the Refugee Appeal’s Board on 21 March 2017. II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Immigration Act 26. Immigration and asylum procedures are mainly regulated by the Immigration Act, Chapter 217 of the Laws of Malta and the Refugees Act, Chapter 420 of the Laws of Malta. The relevant articles of the Immigration Act, at issue in the present case, (“the Act”), in so far as relevant, read as follows: Article 5 “(1) Any person, other than one having the right of entry, or of entry and residence, or of movement or transit under the preceding Parts, may be refused entry, and if he lands or is in Malta without leave from the Principal Immigration Officer, he shall be a prohibited immigrant. (2) Notwithstanding that he has landed or is in Malta with the leave of the Principal Immigration Officer or that he was granted a residence permit, a person shall, unless he is exempted under this Act from any of the following conditions or special rules applicable to him under the foregoing provisions of this Act, be a prohibited immigrant also - (a) if he is unable to show that he has the means of supporting himself and his dependants (if any) or if he or any of his dependants is likely to become a charge on the public funds; or ...” Article 6 “(1) Without prejudice to any rights arising from the preceding Parts, for the purposes of this Act, the Principal Immigration Officer may ... (b) grant leave to land or leave to land and remain to any other person arriving in Malta, under such conditions and for such period as the Principal Immigration Officer may deem proper to establish; ...” Article 9 “(1) Without prejudice to any regulations made under Part III of this Act, leave to land or to land and remain in Malta shall be signified either by a written permit delivered to, or by an appropriate endorsement on the passport of, the person concerned, but the conditions attached to such leave may be contained in a separate document delivered to such person.” Article 10 “(1) Where leave to land is refused to any person arriving in Malta on an aircraft, such person may be placed temporarily on land and detained in some place approved by the Minister and notified by notice in the Gazette until the departure of such aircraft is imminent. ... (3) Any person, while he is detained under sub-article (1) or (2), shall be deemed to be in legal custody and not to have landed.” Article 14 “(1) If any person is considered by the Principal Immigration Officer to be liable to return as a prohibited immigrant under any of the provisions of article 5, the said Officer may issue a return decision against such person who shall have a right to appeal against such decision in accordance with the provisions of article 25A. (2) If such a return decision is accompanied by a removal order, such person against whom such order is made, may be detained in custody until he is removed from Malta: Provided that if the person in respect of whom a return decision and a removal order has been made is subject to criminal proceedings for a crime punishable with imprisonment or is serving a sentence of imprisonment, the Minister may give such directions as to whether the whole or part of the sentence is to be served before the return of such person from Malta, and in default of such directions, such person shall be removed after completion of the sentence, without prejudice to the provisions of any other law. (3) Nothing in this article shall affect the obligation of any person who does not fulfil or who no longer fulfils the conditions of entry, residence or free movement to leave Malta voluntarily without delay. (4) Removal of a person shall be to that person’s country of origin or to any other State to which he may be permitted entry, in particular under the relevant provisions of any applicable readmission agreement concluded by Malta and in accordance with international obligations to which Malta may be party: Provided that, following the issue of a removal order by the Principal Immigration Officer in accordance with the provisions of this article, to any person considered as a prohibited immigrant under any of the provisions of article 5, if such person files an application for asylum in terms of the Refugees Act, all the effects of the removal order shall be suspended pending the final determination of the asylum application. Following the final rejection of the asylum application, the removal order along with its effects shall again come into force: Provided that, notwithstanding that the effects of the removal order are suspended pending the final determination of the asylum application, the detention of such person shall continue until a final decision on detention is reached in terms of the regulations issued under the Refugees Act: Provided further that, whenever a prohibited immigrant has filled in an application for asylum, the Principal Immigration Officer shall not be required to issue a return decision or a removal order. (5) Nothing in this article shall preclude or prejudice the application of Maltese law on the right to asylum and the rights of refugees and of Malta’s international obligations in this regard.... ” 27. Article 25A of the Act concerns the appeals and applications (lodged by virtue of the provisions of the Act or Regulations made thereunder, or by virtue of any other law) to be heard and determined by the Immigration Appeals Board (“the Board”). Article 25A as amended in 2015 reads, in so far as relevant, as follows: “(5) Any person aggrieved by any decision of the competent authority under any regulations made under Part III, or in virtue of article 7 [residence permits], article 14 [removal orders] or article 15 [responsibility of carriers] may enter an appeal against such decision and the Board shall have jurisdiction to hear and determine such appeals. (6) During the course of any proceedings before it, the Board, may, even on a verbal request, grant provisional release to any person who is arrested or detained and is a party to proceedings before it, under such terms and conditions as it may deem fit, and the provisions of Title IV of Part II of Book Second of the Criminal Code shall, mutatis mutandis apply to such request. (7) Any appeal has to be filed in the Registry of the Board within three working days from the decision subject to appeal: Provided that the period applicable for the filing of an appeal from the refusal, annulment or revocation of a visa shall be of fifteen days. (8) The decisions of the Board shall be final except with respect to points of law decided by the Board regarding decisions affecting persons as are mentioned in Part III, from which an appeal shall lie within ten days to the Court of Appeal (Inferior Jurisdiction). The Rule Making Board established under Article 29 of the Code of Organization and Civil Procedure may make rules governing any such appeal. (9) The Board shall also have jurisdiction to hear and determine applications made by persons in custody in virtue only of a deportation order or return decision and removal order to be released from custody pending the determination of any application under the Refugees Act or otherwise pending their deportation in accordance with the following sub-articles of this article. (10) The Board shall grant release from custody where the detention of a person is, taking into account all the circumstances of the case, not required or no longer required for the reasons set out in this Act or subsidiary legislation under this Act or under the Refugees Act, or where, in the case of a person detained with a view to being returned, there is no reasonable prospect of return within a reasonable time‑frame.” (11) The Board shall not grant such release in the following cases: (a) when elements on which any claim by applicant under the Refugees Act is based, have to be determined, where the determination thereof cannot be achieved in the absence of detention; (b) where the release of the applicant could pose a threat to public security or public order. (12) A person who has been released under the provisions of sub-articles (9) to (11) may, where the Principal Immigration Officer is satisfied that there exists a reasonable prospect of deportation or that such person is not co-operating with the Principal Immigration Officer with respect to his repatriation to his country of origin or to another country which has accepted to receive him, and no proceedings under the Refugees Act are pending, be again taken into custody pending his removal from Malta. (13) It shall be a condition of any release under sub-articles (9) to (12) that the person so released shall periodically (and in no case less often than once every week) report to the immigration authorities at such intervals as the Board may determine.” B. The Criminal Code 28. Article 409A of the Criminal Code reads as follows: “409A. (1) Any person who alleges he is being unlawfully detained under the authority of the Police or of any other public authority not in connection with any offence with which he is charged or accused before a court may at any time apply to the Court of Magistrates, which shall have the same powers which that court has as a court of criminal inquiry, demanding his release from custody. Any such application shall be appointed for hearing with urgency and the application together with the date of the hearing shall be served on the same day of the application on the applicant and on the Commissioner of Police or on the public authority under whose authority the applicant is allegedly being unlawfully detained. The Commissioner of Police or public authority, as the case may be, may file a reply by not later than the day of the hearing. (2) On the day appointed for the hearing of the application the court shall summarily hear the applicant and the respondents and any relevant evidence produced by them in support of their submissions and on the reasons and circumstances militating in favour or against the lawfulness of the continued detention of the applicant. (3) If, having heard the evidence produced and the submissions made by the applicant and respondents, the court finds that the continued detention of the applicant is not founded on any provision of this Code or of any other law which authorises the arrest and detention of the applicant it shall allow the application. Otherwise the court shall refuse the application. (4) Where the court decides to allow the application the record of the proceedings including a copy of the court’s decision shall be transmitted to the Attorney General by not later than the next working day and the Attorney General may, within two working days from the receipt of the record and if he is of the opinion that the arrest and continued detention of the person released from custody was founded on any provision of this Code or of any other law, apply to the Criminal Court to obtain the re-arrest and continued detention of the person so released from custody. The record of the proceedings and the court’s decision transmitted to the Attorney General under the provisions of this sub-article shall be filed together with the application by the Attorney General to the Criminal Court.” C. Relevant subsidiary legislation 1. Subsidiary Legislation 420.06 29. Regulation 6(1) (b), (3) (4) and (7) of the Reception of Asylum Seekers Regulations (Legal Notice 320 of 2005 as amended by Legal Notice 417 of 2015) provides as follows: “(1) The Principal Immigration Officer may, without prejudice to any other law, order the detention of an applicant for one or more of these reasons, pursuant to an assessment of the case: ... (b) in order to determine those elements on which the application is based which could not be obtained in the absence of detention, in particular when there is a risk of absconding on the part of the applicant; ... (3) The Immigration Appeals Board shall, with due regard to Article 25A (10) of the Immigration Act, review the lawfulness of detention after a period of seven (7) working days, which may be extended by another seven (7) working days by the Board for duly justified reasons. (4) If the applicant is still detained, a review of the lawfulness of detention shall be held after periods of two months thereafter. Wherever the Immigration Appeals Board rules that detention is unlawful, the applicant shall be released immediately. ... (7) Any person detained in accordance with these regulations shall, on the lapse of nine months, be released from detention if he is still an applicant. (8) Where the Principal Immigration Officer does not order the detention of an applicant in accordance with sub-regulation (1), he may require the applicant: (a) to report at a police station within specified timeframes; (b) to reside at an assigned place. For the purposes of this paragraph, the Principal Immigration Officer shall have the possibility to grant temporary permission to leave. The Principal Immigration Officer shall take the decisions individually, objectively and impartially and shall give reasons if the decisions are negative: Provided that the applicant shall in no case require permission to keep appointments with authorities and courts if his appearance thereat is necessary: Provided further that wherever the applicant is not required to reside at an assigned place, he shall be required to notify any change of address to the Principal Immigration Officer within not more than twenty-four hours; (c) to deposit or surrender documents; or (d) to place a one-time guarantee or surety, with the Principal Immigration Officer. Such measures shall have a maximum duration of nine months: Provided that, if the applicant concerned does not comply with conditions referred to in this sub-regulation, the Principal Immigration Officer may order the detention of such applicant in accordance with the terms and conditions prescribed in this subregulation.” 2. Subsidiary Legislation 420.07 30. Regulations 9(3) and 16(2) of the Procedural Standards for Granting and Withdrawing International Protection Regulations (Legal Notice 416 of 2015) provides as follows: Regulation 9 “...(3) The applicant shall submit as soon as possible all elements needed to substantiate the application for international protection. Such elements shall consist of the applicant’s statements and all the documentation at the applicant’s disposal regarding the applicant’s age, background, including that of relevant relatives, identity, nationality, country and place of previous residence, previous applications for international protection, travel routes, travel documents and the reasons for applying for international protection....” Regulation 16 “...(2) Notwithstanding the provisions of any other law to the contrary, and except where a subsequent application will not be further examined pursuant to article 7A of the Act, or where an applicant is to be surrendered or extradited as appropriate to another Member State pursuant to obligations in accordance with a European Arrest Warrant or otherwise, or to a third country or to international criminal courts or tribunals, an applicant shall not be removed from Malta before his application is finally determined and such applicant shall be allowed to enter or remain in Malta pending a final decision of his application....” D. The Passport Ordinance 31. Section 5 of the Passports Ordinance, Chapter 61 of the Law of Malta, reads as follows: “5. Any person who forges, alters or tampers with any passport or uses or has in his possession any passport which he knows to be forged, altered or tampered with, shall, on conviction, be liable to imprisonment for a term from six months to two years.” E. The Probation Act 32. Section 22 of the Probation Act, Chapter 446 of the Laws of Malta, in so far as relevant, reads as follows: “(1) Where a court by which a person is convicted of an offence (not being an offence punishable only be a fine (multa or ammenda) and not being an offence which apart from an increase of punishment in view of continuity or previous convictions, is punishable with imprisonment for a term exceeding seven years) is of opinion that, having regard to the circumstances of the case, including the nature of the offence and the character of the offender, it is inexpedient to inflict punishment and that a probation order, a community service order or a combination order are not appropriate, the court may make an order discharging the offender absolutely, or, if the court thinks fit, discharging the offender subject to the condition that he commits no offence during such period, not exceeding three years from the date of the order, as may be specified therein ....” THE LAW I. PRELIMINARY OBJECTIONS A. The Government’s request to strike the application out of its list of cases / Abuse of petition 1. The parties’ submissions 33. The Government submitted that the applicant’s failure to update the Court with information relative to his application (namely the fact that his asylum claim was eventually rejected and that he filed an appeal against that decision) meant that he was no longer interested in pursuing his application, which should therefore be struck out. 34. The applicant submitted that he was still interested in pursuing his application, which was unrelated to the process or outcome of his asylum application. 2. The Court’s assessment 35. In the present case there is no doubt that the applicant still wishes to pursue his application, as is evidenced by his submissions in reply. Accordingly, the Court rejects the Government’s request to strike the application out of its list of cases under Article 37 § 1 of the Convention, and continues the examination of the case. 36. In so far as the applicant’s failure to inform the Court about the process of his asylum application, following his release from detention, could be considered as an objection on the grounds of abuse of petition, the Court reiterates that any conduct of an applicant that is manifestly contrary to the purpose of the right of individual application as provided for in the Convention and impedes the proper functioning of the Court or the proper conduct of the proceedings before it constitutes an abuse of the right of application. However, the rejection of an application on grounds of abuse of the right of application is an exceptional measure and has so far been applied only in a limited number of cases (see Peňaranda Soto v. Malta, no. 16680/14, § 34, 19 December 2017, and the examples cited therein). 37. The Court notes that the application lodged by the applicant concerns his detention, as an asylum seeker, from 10 September 2016 to 8 November 2016 and the remedies available against that detention during such period. The Court considers therefore that his status consequent to that period is irrelevant to the assessment of his complaints. It follows that there is no question of improper behaviour by the applicant for not having informed the Court about a matter unrelated to his complaints and any objection to this effect must be dismissed. B. Non-exhaustion of domestic remedies 1. The parties’ submissions 38. The Government submitted that the applicant had not exhausted domestic remedies. They referred to Regulation 6 of the Reception Regulations which provided for an automatic review procedure that applies to persons issued with a detention order and to Article 25A of the Immigration Act concerning the possibility to challenge the grounds for detention and the lawfulness of such detention, as well as constitutional redress proceedings, during which one could also request an interim order. They noted that the applicant had solely resorted to requesting a review of his detention without exhausting all the other remedies that exist at the national level. 39. The applicant submitted that he fully engaged with the automatic review procedure before the Board, and also undertook proceedings under Article 409A of the Criminal Code (which became potentially effective following the introduction of S.L. 420.06) which was examined on the merits. He considered that the other remedies relied on by the Government could not be considered effective for the reasons outlined below (see paragraphs 70 and 71 below). 2. The Court’s assessment 40. The Court notes that it is not necessary at this stage to decide on whether the remedies relied on by the Government were effective remedies as required under Article 5 § 4 ‑ a matter to be examined under the merits of that complaint. Nor is it necessary to join such an objection to the merits of that complaint, since it suffices to note that, in the present case, two of the remedies invoked by the Government for the purposes of their non‑exhaustion objection were in actual fact undertaken by the applicant. Bearing in mind that under the Court’s established case‑law, when a remedy has been pursued, the use of another remedy which has essentially the same objective is not required (see, inter alia, Micallef v. Malta [GC], no. 17056/06, § 58, ECHR 2009) the Court considers that the applicant has exhausted available remedies. 41. It follows that the Government’s objection is dismissed. II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 42. The applicant complained that the deprivation of his liberty had been unlawful and arbitrary, since he had been authorised entry and there had been no other reason for his detention. His detention was thus contrary to that provided in 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 non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; .... (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.” 43. The Government contested that argument. A. Admissibility 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’ submissions (a) The applicant 44. The applicant considered that his detention had been unlawful and arbitrary on two grounds. Firstly, relying on Suso Musa v. Malta (no. 42337/12, § 97, 23 July 2013) the applicant argued that Regulation 16(2) of the Procedural Standards Regulations authorised entry and therefore the detention order had been contrary to the Convention. Secondly, the detention order had also been contrary to the domestic law in so far as the applicant had provided all the relevant documentation on his arrival, and he had not been requested to provide anything further. It was only one month later, during the proceedings he himself lodged, that the immigration police relied on the need for the certification concerning his refugee status in Armenia, even though such document had never been requested before from the applicant. Moreover, such a document was not required by Regulation 9(3) of the Procedural Standards Regulations. Furthermore, no assessment as to the necessity of the applicant’s detention had been carried out by the immigration authorities, and their conclusion that such document would not be provided if the applicant was at liberty had no foundation. Thus, the decision to detain him had lacked the requirements of good faith and due diligence. 45. The applicant explained that Regulation 16(2) of the Procedural Standards Regulations, explicitly stated that asylum applicants “shall be allowed to enter or remain in Malta pending a final decision of his application”. He noted that such Regulation came into force in 2015 and therefore provided the Government with the opportunity to clarify the questions raised by the Court in Suso Musa (cited above) and such law confirmed the right of an asylum seeker to enter and remain pending the outcome of an asylum application. 46. Without prejudice to the above, the applicant submitted that while the Government relied on Regulation 6 of the Reception Regulations read in light of the definition set out in Regulation 9(3) of the Procedural Standards Regulations, as a basis for his detention, the latter Regulation specified the submission of “documentation at the applicant’s disposal”. In that respect the applicant noted that he had submitted all the material in his possession upon his arrival, and the authorities’ decision concerning the certificate he was required to present from Armenia was arbitrary in so far as i) it was unpredictable, ii) the request was only made one month later, and iii) the document was not required by law. In his view, the detention had not been in good faith as it had not examined his individual situation, including whether the applicant could procure the required document without necessitating detention. 47. Similarly, while domestic law provided that detention to determine the elements on which an asylum application is based must be linked to an identified risk of absconding, it did not specify what elements ought to be assessed to evaluate such risk, nor did it distinguish between asylum seekers and refugees. 48. As to the Government’s reliance on Article 5 § 1 (b) of the Convention, the applicant submitted that such a detention ground was not mentioned in his detention order. Indeed the need to submit the relevant certificate was only raised a month after his detention. Thus, it could not be said that he had been detained to allow the fulfilment of a specific and concrete obligation which came about a month later. However, even if that had been so, then the authorities would have had the obligation in terms of the Convention to assess whether the applicant’s detention was truly necessary for such purpose. (b) The Government 49. Relying on Saadi v. the United Kingdom ([GC], no. 13229/03, ECHR 2008), the Government submitted that the applicant’s detention fell under Article 5 § 1 (f), namely to prevent effecting an unauthorised entry since asylum seekers who obtained temporary admission to enter a country remained unauthorised entrants susceptible to detention. Moreover, such detention needed not be necessary, as long as it was not arbitrary. They noted that in the present case, the detention facility had been specifically set up for this purpose and thus the good faith test had been fulfilled. The applicant had also been released once his detention was no longer lawful (necessary). 50. The Government noted that the detention order of 10 September 2016 specifically stated that it was being issued on the ground that the elements on which the applicant’s application for international protection was based could not be determined in the absence of detention in particular due to the risk of absconding. This was in line with Regulation 6(1) (b) of the Reception Regulations (see Relevant domestic law above), and the order was issued, and detention undertaken, in accordance with a procedure prescribed by law (Regulation 6(3) of the Reception Regulations). They noted that in the applicant’s case, given his allegations about his stay and status in Armenia, the documents requested were indeed relevant and required by law (Regulation 9(3) of the Procedural Standards Regulations). As to the risk of him absconding, the Government noted that the applicant had intended to go to Italy, via Malta, as shown by the flight tickets he carried with him. 51. The Government submitted that the applicant’s detention was also covered by Article 5 § 1 (b) which provided for detention in order to secure the fulfilment of any obligation prescribed by law. Regulation 9(3) of the Procedural Standards Regulations established an obligation on the applicant to provide all relevant elements, including those related to country and place of previous residence, thus in the present case the applicant was required to submit certification attesting that he enjoyed refugee status in Armenia as claimed by him. 2. The Court’s assessment (a) General principles 52. Article 5 enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. The text of Article 5 makes it clear that the guarantees it contains apply to “everyone” (see Nada v. Switzerland [GC], no. 10593/08, § 224, ECHR 2012). Sub‑paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds on which persons may be deprived of their liberty and no deprivation of liberty will be lawful unless it falls within one of those grounds (see Saadi, cited above, § 43). One of the exceptions, contained in sub‑paragraph (f), permits the State to control the liberty of aliens in an immigration context (ibid., § 64). 53. In Saadi (cited above, §§ 65-66) the Grand Chamber interpreted for the first time the meaning of the first limb of Article 5 § 1 (f), namely, “to prevent his effecting an unauthorised entry into the country”. It considered that until a State had “authorised” entry to the country, any entry was “unauthorised” and the detention of a person who wished to effect entry and who needed but did not yet have authorisation to do so, could be, without any distortion of language, to “prevent his effecting an unauthorised entry”. It did not accept that, as soon as an asylum seeker had surrendered himself to the immigration authorities, he was seeking to effect an “authorised” entry, with the result that detention could not be justified under the first limb of Article 5 § 1 (f) (§ 65). It considered that to interpret the first limb of Article 5 § 1 (f) as permitting detention only of a person who was shown to be trying to evade entry restrictions would be to place too narrow a construction on the terms of the provision and on the power of the State to exercise its undeniable right of control referred to above. Such an interpretation would, moreover, be inconsistent with Conclusion No. 44 of the Executive Committee of the United Nations High Commissioner for Refugees’ Programme, the UNHCR’s Guidelines and the Committee of Ministers’ Recommendation (see §§ 34-35 and § 37 of the Saadi judgment), all of which envisaged the detention of asylum seekers in certain circumstances, for example while identity checks were taking place or when elements on which the asylum claim was based had to be determined. However, detention had to be compatible with the overall purpose of Article 5, which was to safeguard the right to liberty and ensure that no‑one should be dispossessed of his or her liberty in an arbitrary fashion (ibid., § 66). 54. Under the sub-paragraphs of Article 5 § 1 any deprivation of liberty must, in addition to falling within one of the exceptions set out in sub‑paragraphs (a)-(f), 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 national law. Compliance with national law is not, however, sufficient: Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness. It is a fundamental principle that no detention which is arbitrary can be compatible with Article 5 § 1 and the notion of “arbitrariness” in Article 5 § 1 extends beyond lack of conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and thus contrary to the Convention (see Saadi, cited above, § 67). 55. To avoid being branded as arbitrary, detention under Article 5 § 1 (f) must be carried out in good faith; it must be closely connected to the ground of detention relied on by the Government; the place and conditions of detention should be appropriate, bearing in mind that “the measure is applicable not to those who have committed criminal offences but to aliens who, often fearing for their lives, have fled from their own country”; and the length of the detention should not exceed that reasonably required for the purpose pursued (ibid., § 74; see also A. and Others v. the United Kingdom [GC], no. 3455/05, § 164, ECHR 2009, Louled Massoud v. Malta, no. 24340/08, § 62, 27 July 2010; and Suso Musa, cited above, § 93). (b) Application to the present case 56. In so far as the Government argued that the applicant’s detention was carried out in pursuance of the first limb of Article 5 § 1 (f), the Court makes the following considerations. 57. In Suso Musa (cited above) the Court held that where a State which has gone beyond its obligations in creating further rights or a more favourable position – a possibility open to it under Article 53 of the Convention – enacts legislation explicitly authorising the entry or stay of immigrants pending an asylum application, an ensuing detention for the purpose of preventing an unauthorised entry may raise an issue as to the lawfulness of detention under Article 5 § 1 (f). In that case, the Court was ready to accept that, despite some confusion and conflicting interpretation, the detention had a sufficiently clear legal basis, namely Article 5 in conjunction with Article 14 of the Immigration Act and that, given that it had not been established that the applicant had actually been granted formal authorisation to stay (the applicant had not been issued with the relevant written documentation under Article 9 of the Immigration Act) the detention in that case fell under the first limb of Article 5 § 1 (f). 58. Turning to the present case, the Court notes that the applicant was detained on the basis of Regulation 6(1) (b) of the Reception Regulations, read in the light of Regulation 9(3) of the Procedural Standards Regulations. The applicant claimed that such legislation was in contrast with that provided in Regulation 16(2) of the latter Regulations. 59. The Court notes that subsidiary legislation Nos. 420.06 and 420.07 (the Reception Regulations, and the Procedural Standards Regulations) were amended and entered into force, respectively, in November and December 2015, after the Court’s judgment in Suso Musa. A fresh assessment of the domestic legislation is therefore necessary. 60. Having examined the legislation at issue, the Court considers that on the basis of similar considerations to the ones made in Suso Musa, the legal basis (ie. subsidiary legislation Nos. 420.06 and 420.07) was of sufficient quality. In particular, in the absence of any conflicting interpretations by the domestic authorities (see, a contrario, Suso Musa, cited above, § 98) Regulation 16(2) of the Procedural Standards Regulations reflects international standards to the effect that an asylum seeker may not be expelled pending an asylum claim without necessarily requiring that an individual be granted formal authorisation to stay or to enter the territory. It follows that it cannot be considered in contrast with other domestic law provisions, including Regulation 6(1) (b) of the Reception Regulations, which permitted detention pending an asylum claim. 61. In the present case it has not been established that the applicant had actually been granted formal authorisation to stay. Indeed no relevant documentation under Article 9 of the Immigration Act had been issued to him. The Court therefore accepts that his detention fell under the first limb of Article 5 § 1 (f). It remains to be determined whether such detention was arbitrary. 62. The Court notes that the applicant had been detained on the grounds that the elements on which the applicant’s application for international protection had been based could not be determined in the absence of detention, in particular due to the risk of his absconding. In other words, the applicant was detained on the basis of the need to supply information to the authorities in order to examine his asylum application. However, the applicant complained that it was only a month later that specific information had been requested. 63. Firstly, the Court considers that from the submissions made in the present case, there is nothing to indicate that the formulation of Regulation 9(3) of the Procedural Standards Regulations (see paragraph 30 above) was not sufficiently precise. Secondly, in the Court’s view, the evaluation made by the authorities upon the applicant’s arrival cannot be considered unreasonable. It is noted that the applicant failed to specify what documents other than his national passport he had presented to the authorities on his arrival. However, it is not disputed that he had not supplied documentation confirming his allegation that he had already been granted refugee status in Armenia. It does not appear unreasonable for the domestic authorities to have expected such documentation to be submitted, nor is it unreasonable to consider that the applicant might abscond, given his clear intention to travel to Italy (see paragraph 8 above). It follows that the applicant’s detention was closely connected to the ground of detention relied on by the Government. Moreover, while it was true that the authorities only specified their request at a later date, the applicant had been immediately informed that not sufficient documentation had been provided (see paragraph 9 above). He could thus have provided any further documentation supporting his allegations concerning his “background” “country and place of previous residence” and/or “previous applications for international protection” (elements set out in Regulation 9(3) of the Procedural Standards Regulations) of his own motion at any time prior to the specific request regarding the alleged grant of refugee status in Armenia. The Court also considers that after the overhaul in domestic law and practice which ensued subsequent to the judgment of Suso Musa, there is no reason to consider that the detention in the present case was not carried out in good faith. Furthermore, the applicant has not complained that the place and conditions of detention were not appropriate. Lastly, the Court considers that the length of the detention (less than two months) cannot be considered as having exceeded that reasonably required for the purpose pursued. 64. The Court therefore finds that the applicant’s detention was compliant with Article 5 § 1 (f), and in that light it does not need to consider whether it also fell under Article 5 § 1 (b) of the Convention. 65. There has accordingly been no violation of Article 5 § 1 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 66. The applicant complained that the remedy afforded to him to challenge his detention had not been speedy and effective, as required by Article 5 § 4 of the Convention, which reads as follows: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” 67. The Government contested that argument. A. Admissibility 68. 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’ submissions (a) The applicant 69. The applicant complained that the remedy had not been speedy and effective, owing to the violation of the deadline provided by law in order for the Board to carry out an automatic mandatory review of his detention. Domestic law provided for a mandatory automatic review of the lawfulness of an asylum‑seeker’s detention within seven working days. In the present case, not only had the Board reviewed the detention only one month later, but they had also failed to convene in order to discuss whether there were any duly justified reasons to postpone the review. In addition, the applicant complained about the quality of the law in so far as he was unable to know when the next automatic review would be. They further considered that, contrary to that alleged by the Government, overseas travel of a board member could not be considered as a duly justified reason to postpone a hearing concerning a review of detention. 70. In reply to the Government’s reliance on Article 25A of the Immigration Act the applicant submitted that such a remedy was not accessible since he could not read the content of the detention order, nor did such an order state that (as provided in law) free legal assistance was available for the first review of the applicant’s detention. In the applicant’s case legal aid services were provided to the applicant on 13 September but they only met in the presence of an interpreter on the following day, i.e. the last day to appeal the detention order before the Board by means of Article 25A (the limit for which is three working days), and they had not been provided with a copy of the detention order, as they were told the applicant should have his own. 71. The applicant considered that the constitutional remedy could not be considered effective for the reasons already denounced by the Court in repeated findings. In the absence of any change in such remedy no fresh assessment was warranted. (b) The Government 72. Reiterating that Article 5 § 4 applied solely while an applicant was in detention, the Government referred to Article 409A of the Criminal Code, as well as to constitutional redress proceedings (including the possibility of requesting interim measures). Furthermore, the Government relied on Regulation 6(3) of the Reception Regulations which guaranteed a speedy review, i.e. a review within seven working days which could be extended only once for another seven working days. If a person is still in detention after two months, then another automatic review takes place two months after the initial review. According to the Government the speediness of this review was evident from the circumstances of the present case, where the applicant was released within two months of his detention order. The Government also referred to constitutional redress proceedings claiming that the Court should examine whether any developments occurred domestically. In particular they relied on a court decree no. 50/2013 in the case of Emmanuel Camilleri vs Inspector Louise Calleja and the Commissioner of Police, whereby the courts of constitutional competence ordered, as an interim measure, the release of a person serving a prison sentence pending the outcome of the constitutional redress proceedings. Thus, the availability of interim measures resolved any issue of the length of such proceedings. 73. In connection with the applicant’s allegations concerning the accessibility of proceedings before the Board, the Government submitted that on his arrival the applicant was given a detention order, and already on 10 September 2016 the applicant’s lawyer of choice had made written submissions, while the expiration of the time‑limit was 14 September 2016. While it was true that no interpreter was present at the hearing of the Board this meant that there was no need for one as the applicant was conversant with the English language. 2. The Court’s assessment (a) General principles 74. The Court reiterates that Article 5 § 4 of the Convention, in guaranteeing to detained persons the right to institute proceedings to challenge the lawfulness of their detention, also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of detention and the ordering of its termination if it proves unlawful (see Mooren v. Germany [GC], no. 11364/03, § 106, 9 July 2009, Idalov v. Russia [GC], no. 5826/03, § 154, 22 May 2012 and Ilnseher v. Germany [GC], nos. 10211/12 and 27505/14, § 251, 4 December 2018). 75. The question of whether the right to a speedy decision has been respected must be determined in the light of the circumstances of each case and – as is the case for the “reasonable time” stipulation in Articles 5 § 3 and 6 § 1 of the Convention – including the complexity of the proceedings, their conduct by the domestic authorities and by the applicant and what was at stake for the latter (see Mooren, cited above, § 106, and Ilnseher, also cited above, § 252, and the references therein). 76. The forms of judicial review satisfying the requirements of Article 5 § 4 may vary from one domain to another, and will depend on the type of deprivation of liberty in issue. It is not excluded that a system of automatic periodic review of the lawfulness of detention by a court may ensure compliance with the requirements of Article 5 § 4 (see Megyeri v. Germany, 12 May 1992, § 22, Series A no. 237‑A). However, long intervals in the context of automatic periodic review may give rise to a violation of Article 5 § 4 (see, among others, Herczegfalvy v. Austria, 24 September 1992, § 77, Series A no. 244). The requirements of Article 5 § 4 as to what may be considered a “reasonable” interval in the context of periodic judicial review varies from one domain to another, depending on the type of deprivation of liberty in issue (see, for a summary of the court’s case‑law in the context of detention for the purposes set out in sub‑paragraphs (a), (c), (e) and (f) of Article 5 § 1, Abdulkhakov v. Russia, no. 14743/11, §§ 212-14, 2 October 2012). 77. In particular, in the context of detention pending deportation or extradition under Article 5 § 1 (f), the Court has previously noted that the factors affecting the lawfulness of detention pending deportation or extradition, such as, for example, factors relating to the progress of the extradition or deportation proceedings and the authorities’ diligence in the conduct of such proceedings, may change over the course of time (see Rahmani and Dineva v. Bulgaria, no. 20116/08, § 78, 10 May 2012). It therefore considered that shorter intervals between reviews are necessary for detention pending deportation or extradition as compared to detention after conviction by a competent court or detention of persons of unsound mind. Indeed, the factors affecting the lawfulness of detention are likely to evolve faster in situations where the proceedings are continuing (as in cases of detention with a view to extradition) than in situations where the proceedings have been closed after the establishment of all relevant circumstances (as in cases where a conviction has been pronounced by a competent court or compulsory psychiatric treatment ordered by a court on the basis of medical reports confirming the person’s dangerousness). At the same time, given the limited scope of the review of the lawfulness of detention required under Article 5 § 4 in extradition cases – which does not extend, for example, to the questions whether the detention was “necessary” for the prevention of crime or fleeing – the review need not be as frequent as in cases of deprivation of liberty under Article 5 § 1 (c) (see Abdulkhakov, cited above, § 214). Thus, the Court has, for example found, that intervals between periodic reviews of detention ranging from two to four months were compatible with the requirements of Article 5 § 4 (see Soliyev v. Russia, no. 62400/10, §§ 57-62, 5 June 2012, and Khodzhamberdiyev v. Russia, no. 64809/10, §§ 108-114, 5 June 2012). However, it is not the Court’s task to attempt to rule as to the maximum period of time between reviews which should automatically apply to a certain category of detainees. The question of whether periods comply with the requirement must be determined in the light of the circumstances of each case (see Abdulkhakov, cited above, § 215). (b) Application to the present case 78. The Court is of the view that the same considerations set out in the preceding paragraph apply in the context of a remedy in connection with detention pending asylum proceedings which falls under the first limb of Article 5 § 1 (f), namely to prevent effecting an unauthorised entry. Indeed, as in the cases concerning detention pending extradition or deportation, the lawfulness of detention pending asylum proceedings is also affected by factors which may change over time, such as factors relating to the progress of the proceedings and the authorities’ diligence in the conduct of such proceedings. 79. Turning to the circumstances of the present case the Court notes that the applicant was detained on 10 September 2016 and that on 30 September 2016 he appeared before the Board accompanied by one of his lawyers (of choice). The Court observes that his first review was meant to take place automatically within seven working days, that is, at the latest on 20 September (as 10 and 11 and 17 and 18 September were Saturdays and Sundays respectively i.e. non-working days). However, on 20 September no review took place as a Board member was abroad. As allowed by law (Regulation 6(3) of the Reception Regulations) the Board could have extended the period by another seven working days. Given that the 21 September was a public holiday i.e. a non-working day, the next review was to be held by the latest 30 September (24 and 25 September being a Saturday and Sunday i.e. non‑working days) - date on which the Board actually convened. Therefore, the Court notes that, when the Board reconvened on 30 September they were still within the maximum domestic time‑limit. On that day, given that his other lawyer of choice was abroad the case was put off to 5 October 2016. On the latter date the Board explained to the applicant why it had not been able to comply with the deadline provided by law for his first review; it considered his situation and gave reasons for its decision to continue the applicant’s detention (see paragraph 18 above). At the same time it also gave instructions in connection with any future assessment (see paragraph 19 above), which according to domestic law should have taken place two months after the initial assessment. However, this never took place in the present case given that the applicant was released on 8 November 2016, a little more than a month after his initial review. Thus, the Court notes that the procedural irregularity in this case was that the applicant did not have an automatic review within the first seven working days and that the period for review was not properly extended. Nevertheless, the hearing took place within the maximum time‑limit provided by law and it was only adjourned because one of the applicant’s lawyers of choice was abroad. 80. The Court notes firstly that the applicant did not complain that the Board, because of its composition or the terms of appointment of its members, was not a court or judicial authority for the purposes of Article 5 § 4 of the Convention. Therefore the Court will proceed on the assumption that it is (compare Louled Massoud, cited above, § 44). The Court further considers that while under Article 5 § 1 detention which is not compliant with domestic law induces a violation of that provision, a breach of time-limits for automatic reviews established in law does not necessarily amount to a violation of Article 5 § 4, if the proceedings by which the lawfulness of an applicant’s detention were examined were nonetheless decided speedily. The Court notes that, in the present case, despite certain irregularities (the fact that the applicant did not have his initial automatic review within seven working days of the start of his detention as provided by domestic law, nor was this period extended in line with the regular practice) the time which elapsed until his first review, i.e. twenty running days ‑ which due to a postponement became twenty-five running days ‑ cannot be considered unreasonable. 81. Thus, in the circumstances of the present case the applicant had the lawfulness of his detention reviewed speedily by a court, within the meaning of Article 5 § 4 and it is therefore not necessary for the Court to assess the effectiveness of any other available remedies. 82. In conclusion, the Court finds that there has been no violation of Article 5 § 4. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been no violation of Article 5 § 1 of the Convention; 3. Holds that there has been no violation of Article 5 § 4 of the Convention. Done in English, and notified in writing on 2 April 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıBranko LubardaDeputy RegistrarPresident

THIRD SECTION CASE OF UŽKURĖLIENĖ AND OTHERS v. LITHUANIA (Application no. 62988/00) JUDGMENT STRASBOURG 7 April 2005 FINAL 07/07/2005 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 Užkurėlienė and Others v. Lithuania, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrB.M. Zupančič, President,MrJ. Hedigan,MrC. Bîrsan,MrsM. Tsatsa-Nikolovska,MrV. Zagrebelsky,MrE. Myjer,MrDavid Thór Björgvinsson, judges,and Mr V. Berger, Section Registrar, Having deliberated in private on 17 March 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 62988/00) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Lithuanian nationals, Mrs Eugenija Užkurėlienė, Mr Povilas Čyžius, Mr Stanislovas Čyžius and Ms Janina Čyžiutė (“the applicants”), on 23 October 2000. 2. The applicants, who had been granted legal aid, were represented by Mr Stasys Mačiulaitis, a lawyer practising in Vilnius. The Lithuanian Government (“the Government”) were represented by their Agents, Mrs Danutė Jočienė, of the Ministry of Justice, and Mr Paulius Koverovas, of the Ministry of Justice. 3. The applicants alleged, in particular, that the non-execution of the Supreme Court judgment of 22 May 2000 had breached Article 6 of the Convention and Article 1 of Protocol No. 1. 4. The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. Mr P. Kūris, the judge elected in respect of Lithuania, withdrew from sitting in the case (Rule 28). The Government accordingly appointed Mr G. Ress to sit as a judge elected in respect of Lithuania (Article 27 § 2 of the Convention and Rule 29 § 1). Following the end of the functions of Mr Ress as the judge of the European Court of Human Rights, the Government appointed Mr J. Hedigan to sit in his place. 5. By a decision of 8 January 2004, the Court declared the application partly admissible. 6. The applicants and the Government each filed observations on the merits (Rule 59 § 1). 7. On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Third Section (Rule 52 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 8. The first applicant is Mrs Eugenija Užkurėlienė, born in 1939 and living in Vilnius. The second applicant is Mr Povilas Čyžius, born in 1936 and living in the Kupiškis area in the Panevėžys region. The third applicant is Mr Stanislovas Čyžius, born in 1938 and living in Panevėžys. The fourth applicant is Ms Janina Čyžiutė, born in 1932 and living in the Kupiškis area. 9. The applicants are brothers and sisters. Before the Soviet occupation of Lithuania in 1940 the applicants' father owned 33.87 hectares of land (“the original land”). The land was nationalised by the Soviet authorities in the 1940s. Following the restoration of Lithuanian independence in 1990, the applicants became entitled to a claim in regard to their late father's land under the Restitution of Property Act (“the Act”). 10. On 25 September 1991 the applicants requested that compensation in land be given to them in accordance with the Act. 11. On 10 December 1993 the applicants changed their position, requesting that the original land be returned to them in kind. By letter of the administrative authorities of 31 January 1994 the applicants were informed that part of the original land (8.74 hectares) had already been allocated to a third person, FS, by decision of the Ministry of Agriculture of 30 December 1992. The applicants were informed that that part of the land could thus not be returned to them. 12. On 15 February 1994 the applicants applied to a court, requesting that the decision of 30 December 1992 be quashed. On 20 June 1994 the Vilnius City First District Court rejected the applicants' action. On 18 July 1994 the Supreme Court rejected the applicants' appeal against that judgment. 13. On 22 March 1995 the Supreme Court refused to grant leave for a cassation appeal. 14. On 4 October 1996 the applicants brought a fresh court action, requesting the return of the original land. On 29 June 1998 the Kupiškis District Court rejected the applicants' action. On 15 September 1998 the Panevėžys Regional Court rejected the applicants' appeal against that decision. The applicants submitted a cassation appeal to the Court of Appeal. 15. On 3 May 1999 the Court of Appeal quashed the lower decisions, returning the case for a fresh examination at first instance. 16. On 28 October 1999 the Kupiškis District Court again rejected the applicants' action. On 21 December 1999 the Panevėžys Regional Court upheld the first instance judgment. The applicants submitted a cassation appeal to the Supreme Court. 17. On 22 May 2000 the Supreme Court adopted a final judgment whereby it quashed the decisions of 28 October and 21 December 1999. The Supreme Court concluded that the authorities and the lower courts had been responsible for the delays in restoring the applicants' rights under the Act. It held inter alia: “From the material in possession it appears that the plaintiffs submitted a request to restore their property rights on 25 September 1991. Pursuant to Article 19 [of the Act], a decision on the request must have been adopted within three months from that date. ... [The] plaintiffs' right to an effective remedy was [therefore] violated. ... The plaintiffs had submitted enough evidence [enabling the administrative authorities] to adopt a decision on restitution of their property rights, even more so as the case-file contains no evidence that other persons claim restitution of property rights in regard to the land which belonged to the plaintiffs' father. ... Having regard to the fact that the plaintiffs' property rights have not been restored since 1991 ... [further litigation] would breach the plaintiffs' rights guaranteed by Articles 6 and 13 of the Convention ... ” 18. In the judgment of 22 May 2000 the Supreme Court ordered that the Panevėžys regional administration “take a decision to restore the [applicants'] property rights to the land which belonged to [their father] prior to the nationalisation”. 19. With respect to the applicants' claim about the allocation of part of the original land (8.74 hectares) to FS, the Supreme Court noted that in their original application for restitution of their property rights the applicants had asked for compensation, not for return of the original land, and that they had changed their claim only on 10 December 1993, i.e. almost a year following the authorities' decision of 30 December 1992 to allocate the impugned portion of land to FS. The Supreme Court concluded that thus the applicants could not have this part of the original land returned to them. It also noted however that the applicants were entitled to compensation for the impugned portion of land in accordance with the provisions of the Act. 20. On 20 March 2002 the Panevėžys regional administration made an offer to the first applicant to afford her compensation in land for 5.36 hectares of her late father's former land that could not be returned in kind. The necessary formalities for the transfer of property rights to the first applicant have not yet been finalised as she did not reply to a number of the administration's letters requesting her to sign the relevant papers. 21. By a decision of the regional administration of 30 August 2002, the second and third applicants were returned in kind 16.08 hectares of the original land. 22. On the same date the administration allotted the fourth applicant 3.67 hectares of land in compensation for the equivalent part of the original land that could not be returned in kind. 23. On 9 July 2002 the regional administration made an offer for the fourth applicant to be allotted a further 1.69 hectares of land in compensation. On 17 December 2002 and 5 July 2004 the regional administration made an offer to compensate the fourth applicant for a further 1.22 hectares of her father's former land. The formalities for the transfer of property rights to her in this respect have not yet been finalised as she did not reply to a number of the administration's letters requesting her to sign the relevant papers. 24. On 17 December 2002 the regional administration made an offer to the second applicant to compensate in land for 0.78 hectares of the original land that could not be returned to him. The formalities for the transfer of property rights to him have not yet been finalised as he did not reply to a number of the administration's letters to sign the relevant documents. 25. On 12 February 2004 all four applicants were returned jointly a further 3.51 hectares of the original land. 26. On 19 July 2004 the regional administration afforded the first and the third applicant a further compensation in land for 1.56 hectares of the original land that could not be returned in kind. II. RELEVANT DOMESTIC LAW AND PRACTICE 27. The Restitution of Property Act (Nuosavybės teisių ... atkūrimo įstatymas) (of 1991, amended on numerous occasions) provides for two forms of restitution: 1) the return of the property in certain circumstances, 2) compensation in other cases (compensation can be made in land or money). On 27 May 1994 the Constitutional Court examined the issue of compatibility of the Constitution with the domestic laws on restitution of property rights. In its decision the Constitutional Court held inter alia that possessions which had been nationalised by the Soviet authorities since 1940 should be considered as “property under the de facto control of the State”. The Constitutional Court also stated: “The rights of a former owner to particular property have not been restored until the property is returned or appropriate compensation is afforded. The law does not itself provide any rights while it is not applied to a concrete person in respect of a specific property item. In this situation the decision of a competent authority to return the property or to compensate has such a legal effect that only from that moment does the former owner obtain property rights to a specific property item.” The Constitutional Court also held that fair compensation for property which could not be returned was compatible with the principle of the protection of property. In decisions of 15 June and 19 October 1994 the Constitutional Court emphasised that the notion of restitution of property rights in Lithuania essentially denoted partial reparation. In this respect the Constitutional Court noted that the authorities of Lithuania as a re-established State in 1990 were not responsible for the Soviet occupation half a century ago, nor were they responsible for the consequences of that occupation. The Constitutional Court held that since the 1940s many private persons had bought, in accordance with the legislation applicable at the material time, various property items which had been previously nationalised. The denial of these factual and legal aspects was impossible, and the domestic legislation on restitution of property rights duly took into account not only the interests of the former owners, but also the interests of private persons who had occupied or purchased the property under lawful contracts. On 20 June 1995 the Constitutional Court also said that the choice by the Parliament of the partial reparation principle was influenced by the difficult political and social conditions in that “new generations had grown, new proprietary and other socio-economic relations had been formed during the 50 years of occupation, which could not be ignored in deciding the question of restitution of property”. On 8 March 1995 the Constitutional Court ruled that a person who qualifies for compensation for property which cannot be returned is entitled to choose the form of compensation (land or money) by giving written permission for the authorities to proceed with the decision. The Constitutional Court also held that the executive authorities have discretion to decide on appropriate compensation in each case, but that a person is entitled to contest that compensation by way of a court action. Under Article 18 of the Restitution of Property Act (all versions until 1999), the authorities were required to obtain the written permission of the person concerned before they determined the actual compensation for the property which could not be returned. Pursuant to the version of the Restitution of Property Act as amended from 2 June 1999, the executive authorities are now entitled to decide the question of compensation without the person's approval. That decision can be appealed to a court in accordance with the procedure established in Article 19 of the Act. No stamp duty is required to file such an action. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 28. Article 6 of the Convention provides, insofar as relevant, as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 29. The Government stated that most of the original land has now been returned to the applicants. As to the remainder of that land, which has to be compensated under the Supreme Court judgment, the applicants had been duly made offers of compensation by the administrative authorities. These offers had not been finalised only because the applicants had themselves precluded any final execution of the impugned judgment in that they had refused or ignored various letters to sign the land delimitation or other acts needed for the property to be entered in their name in the land register. 30. The applicants denied the Government's allegations as unsubstantiated. While the applicants did not contest that they had refused to accept some of the offers of land made by the authorities in the execution of the judgment of 22 May 2000, they none the less stated that the executive authorities had failed to return the whole of the original land in kind or offer an adequate compensation in due time. 31. The Court recalls the Jasiūnienė v. Lithuania case (no. 41510/98, 6.3.2003) where it observed that execution of a judgment given by any court must be regarded as an integral part of the “trial” for the purposes of Article 6 of the Convention. A delay in the execution of a judgment may be justified in particular circumstances. But the delay may not be such as to impair the essence of the right protected under Article 6 § 1 (loc. cit., § 27). The Court notes that the Lithuanian legislation on restitution of property rights leaves it to the discretion of the administrative authorities to determine whether a plot of land can be returned to its former owner in kind, and if not – to decide on appropriate compensation in land or money (loc. cit., § 22; also see the judgment of the Supreme Court of 22 May 2000 in the present case, §§ 17-19 above). 32. The Supreme Court judgment of 22 May 2000 cannot therefore be interpreted as ordering unconditional return to the applicants of the 33.87 hectares of land that had been owned by their late father, and that had been nationalised by the Soviet occupying power in the 1940s. The impugned judgment only ordered the administrative authorities to use legitimately their discretion in returning the land in kind where appropriate, or offering compensation in land or money for the remainder of the original land. 33. On the facts of the case, the Court observes that following the adoption of the said judgment on 22 May 2000, a number of administrative decisions in execution of the judgment were taken during a period starting from 20 March 2002 until 19 July 2004. As a result of those decisions, the restitution of the applicants' property rights or the compensation have been finalised in respect of 24.82 hectares of their father's former property. In regard to the remaining 9.05 hectares of the original land, offers have been made to the applicants to be compensated in land (see §§ 20-26 above). While in connection with some of the administration's decisions the relevant formalities for the transfer of property rights to the applicants have not yet been finalised, this circumstance is imputable only to the applicants, not the authorities (see §§ 20, 23 and 24 above, also see the Government's and the applicants' comments, §§ 29-30). 34. It follows that the executive authorities cannot be criticised for a refusal to observe in principle or a lack of good faith in complying with the Supreme Court judgment of 22 May 2000. The question is only whether there were unjustified delays in the authorities' actions. In this regard the Court observes first that the applicants in the present case had themselves prevented the administration from finalising some of the restitution decisions, by way of neglecting the authorities' efforts to finalise the formalities pertaining to transfer of the property rights to the applicants. 35. It is further observed that the Supreme Court judgment of 22 May 2000 did not order the executive authorities to carry out a clear one-off act, such as payment of a particular amount or money (as, for example, in the Burdov v. Russia case, no. 59498/00, 7.5.2002, ECHR 2002-III, where the refusal of execution could thus not be justified by any substantial delay). By contrast, in the present case, the impugned judgment empowered the executive to carry out a complex set of actions under the domestic legislation on restitution of property rights, namely to choose an appropriate form of restitution (return in kind or compensation in land), find an adequate location for the land to be offered in compensation to each of the four applicants, carry out all the necessary actions to delimit the land, as well as complete the formalities needed to enter the applicants' name in the land register. It follows that the execution of the judgment of 22 May 2000 necessitated not only the analysis of various historical, legal and technical documents and the possible consultation of experts, but also required the participation by the applicants themselves. 36. The Court notes that the first offer of compensation in execution of the judgment of 22 May 2000 was made to the applicants almost two years later, on 20 March 2002. Thereafter slightly more than two years passed until the last offer of compensation was made on 19 July 2004 (see §§ 20-26 above). While the Court finds such a lapse of time regrettable, it cannot be compared with the circumstances in the Jasiūnienė case cited above, where even at the time of the adoption of the Court's judgment in 2004 no appropriate executive decision had been taken regarding the court decision on restitution adopted as far back as 1996 (loc. cit., §§ 27-32). In view of the above considerations, and in particular on account of the lack of activity established on the part of the applicants themselves, the Court considers that the delays in the execution of the judgment of 22 May 2000 were not such as to infringe upon the essence of the applicants' right to a court guaranteed by Article 6 of the Convention (see, by contrast, Jasiūnienė cited above, ibid.; also see, mutatis mutandis, Burdov cited above, §§ 34-38; Hornsby v. Greece, no. 18357/91, 19.3.1997, §§ 40-45, ECHR 1997-II). 37. In sum, there has been no violation of Article 6 in the present case. II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 38. The applicants also complained about the alleged failure of the authorities to execute the judgment of 22 May 2000 under Article 1 of Protocol No. 1, which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 39. The Court reiterates that a “claim” can constitute a “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention if it is sufficiently established to be enforceable (see Jasiūnienė cited above, § 44). The Court has already found in connection with the applicants' complaints under Article 6 of the Convention that the judgment of 22 May 2000 had placed on the authorities an obligation to return the original land in kind where appropriate, or offer compensation in land or money for the remainder of their father's former property (see §§ 31-32 above). Hence the judgment indeed provided the applicants with an enforceable claim to constitute a “possession” within the meaning of Article 1 of Protocol No. 1. However, the Court also found that the authorities had duly exercised their discretion in executing the impugned judgment with no delays serious enough to warrant the finding of a violation of the applicants' right to a court (see §§ 33-37 above). It follows therefore that there has been no interference with the applicants' “possessions” in this respect (see, by contrast, Jasiūnienė cited above, §§ 45-47). 40. Accordingly, there has also been no violation of Article 1 of Protocol No. 1 in this regard. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been no violation of Article 6 of the Convention; 2. Holds that there has been no violation of Article 1 of Protocol No. 1. Done in English, and notified in writing on 7 April 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Vincent BergerBoštjan M. Zupančič Registrar President

FIRST SECTION CASE OF IGBO AND OTHERS v. GREECE (Application no. 60042/13) JUDGMENT STRASBOURG 9 February 2017 FINAL 09/05/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. . In the case of Igbo and Others v. Greece, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Mirjana Lazarova Trajkovska, President,Kristina Pardalos,Linos-Alexandre Sicilianos,Aleš Pejchal,Robert Spano,Armen Harutyunyan,Tim Eicke, judges,and Abel Campos, Section Registrar, Having deliberated in private on 17 January 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 60042/13) against the Hellenic Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by fourteen applicants of Greek, Turkish, Nigerian and Senegalese nationality, whose names appear in the annexed list. They were represented by Mr K. Tsitselikis and Mr A. Spathis, lawyers practising in Thessaloniki. 2. The Greek Government (“the Government”) were represented by their Agent’s delegates, Mr I. Bakopoulos, member of the State Legal Council, and Mrs K. Karavasili, legal representative of the State Legal Council. The Turkish Government did not make use of their right to intervene (Article 36 § 1 of the Convention). 3. The applicants alleged that they had been detained in inhuman and degrading conditions, and that they had not had effective domestic remedies at their disposal. 4. On 4 November 2013 the application was communicated to the Government. 5. The applicants and the Government filed observations on the admissibility and merits of the application, in accordance with Article 54 § 2 of the Rules of Court. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicants were or still are detained in Chios Prison, either in pre-trial detention or serving prison sentences. The first to fifth applicants and the tenth and thirteenth applicants were placed in cell no. 9, the sixth to ninth applicants and the eleventh and twelfth applicants were placed in cell no. 5, and the fourteenth applicant was placed in cell no. 3. 7. The fifth applicant was transferred to Korydallos Prison on 10 September 2013, the seventh applicant was released on 29 October 2013 and the ninth applicant was released on 4 September 2013. A. The applicants’ submissions on the conditions of their detention in Chios Prison 8. The applicants submitted that Chios Prison was overcrowded, resulting in a situation where each inmate was allocated approximately 2 sq. m of personal space. The prison consisted of six cells which each had fifteen beds and five mattresses on the floor, and three cells which each had ten beds. As regards the cells in which the applicants were held, their measurements were as follows: cell no. 3 measured 10 sq. m. and accommodated six detainees, cell no. 5 measured 40 sq. m. and accommodated twenty detainees, and cell no. 9 measured 20 sq. m. and accommodated ten detainees. The sixth, eighth and ninth applicants slept on the floor, which was standard practice for other inmates as well. 9. The applicants pointed out that the toilets in the cells were not partitioned off from the rest of the cells, and there was no hot water. Filthiness of the cells, in addition to overcrowding, exposed the inmates to contagious diseases and created various psychological problems, in respect of which no medical treatment was provided. Detainees lacked access to adequate dental care. 10. The applicants stressed that inmates were not sufficiently separated according to their health conditions or according to whether they were in pre-trial detention or serving prison sentences, as was required by the Penal Code. 11. The applicants also contended that they were confined to their cells for sixteen to seventeen hours per day, in the absence of any recreational or educational activities. 12. Meals, which were insufficient and of poor quality, were served in the cells and consumed on the beds. 13. On 29 August 2013 the applicants lodged a complaint with the Prison Board, arguing that the conditions of their detention were very poor, but did not receive any reply. B. The Government’s submissions on the conditions of detention in Chios Prison 14. The Government submitted that Chios Prison consisted of nine cells, each furnished with a table, stools, a fridge, cooking stoves, wardrobes and a television. Cells were sufficiently ventilated and heated and had adequate natural light. Additionally, they were regularly cleaned and disinfected. 15. In respect of prison overcrowding, the Government argued that the prison had accommodated 142 inmates at the time the applicants had lodged their application with the Court, only slightly exceeding its capacity of 120 detainees. 16. All detainees had access to adequate medical care provided by the prison doctor. In case of emergency, or when a serious incident occurred, detainees were transferred to Chios General Hospital or Korydallos Prison Hospital in Athens. Those suffering from contagious diseases were held separately or transferred to hospital. The Government provided information showing that some of the applicants had had consultations with doctors in respect of various conditions. 17. There were fifty available places for detainees who wished to work. In addition, detainees had the opportunity to attend educational programmes or other recreational activities which were scheduled from time to time. Most of the applicants participated in some of the educational courses. 18. As regards prisoners’ meals, the Government submitted a menu from a week selected at random to demonstrate that meals were varied. II. RELEVANT DOMESTIC LAW AND PRACTICE 19. The relevant domestic law and practice is described in the Court’s judgment in Kanakis v. Greece (no. 2) (no. 40146/11, §§ 62-68, 12 December 2013) and the Court’s decision in Chatzivasiliadis v. Greece (dec.) (no. 51618/12, §§ 17-21, 26 November 2013). III. REPORT OF THE UNITED NATIONS SPECIAL RAPPORTEUR 20. The United Nations (UN) Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Mr Manfred Nowak, visited Greece in October 2010. In his report dated 4 March 2011, he stated the following regarding Chios Prison: “110. The prison consists of 6 chambers with 18 beds and 2 mattresses each and 3 chambers with 10 beds each. In addition, there is one cell for 2 people used for the elderly or sick and one cell for solitary confinement. The capacity of the prison is 120 but at the time of the visit 163 persons were being detained. Of all prisoners 52 were pre-trial detainees and 105 foreign nationals. There are 62 persons working at the prison in 4 shifts. The severe overcrowding had increased the problems with drugs and inter-prisoner violence. According to the director, the prison had been renovated and cleaned over the last weeks. A doctor came every Monday, Wednesday and Friday. The prison regime is as follows: At 7.45am the gates open and detainees can go to the inner yard; 8 am breakfast; at 11 the yard is closed but they can move freely inside the building; 11.30 lunch; 12 medicine; 12.30 head count and order to go back to the chambers; at 3 pm the chambers open again and from 3.15 to sunset they can go to the yard; 7.30 medication; and at 8 pm the gates close again. 111. The cells were very small and overcrowded. At the time of the visit, the cells were fairly clean although some cells had problems with cockroaches. Many prisoners complained about the diet and hygiene conditions. There were little recreational activities offered to the detainees and only 41 detainees could work at the prison which was decided by a special committee. The health care provided was inadequate and the doctor was young and inexperienced. Conjugal visits were not allowed and permission of visits was only granted for direct blood relatives but not for friends. The detainees stated that it was difficult to complain or be heard in case of arbitrary or discriminatory treatment. In comparison to other prisons, such as Kos and Komotini which were both much more overcrowded but taken well care of by their respective directors, the overall conditions of Chios Prison were fairly poor.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 21. The applicants complained that their conditions of detention in Chios Prison violated their right not to be subjected to inhuman or degrading treatment, as provided for in Article 3 of the Convention, which reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 1. The arguments of the parties 22. The Government invited the Court to reject the application on the grounds of non-exhaustion of domestic remedies. With regard to the fifth, seventh and ninth applicants, the Government contended that they had been released or transferred to other prisons, and should therefore have instituted civil proceedings under section 105 of the Introductory Law to the Civil Code, in conjunction with the Penal Code and Article 3 of the Convention, which was directly applicable to the national legal order. The domestic remedy was capable of affording those applicants adequate redress in the form of monetary compensation for any damage caused to them. 23. In respect of the rest of the applicants who were still in detention, the Government submitted that they had failed to lodge a complaint with the Court for the Execution of Sentences (Δικαστήριο Εκτέλεσης Ποινών), pursuant to Article 6 of the Penal Code, within a month of their complaint to the Prison Board on 29 August 2013. 24. Lastly, the Government argued that the complaints relating to inadequate medical care, insufficient measures against the contraction of contagious diseases, and non-compliance with sanitary regulations were inadmissible, as they consisted of general allegations which were not related to the applicants’ situation. 25. The applicants contested these arguments. The fifth, seventh and ninth applicants submitted that they had been released or transferred after they had lodged their application with the Court. In respect of the remedy proposed by the Government, namely the complaint to the Court for the Execution of Sentences, the applicants argued that it was not effective. 2. The Court’s assessment 26. Regarding the general principles concerning the application of the rule of exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention, the Court refers to its relevant case-law (see, in particular, Akdivar and Others v. Turkey, 16 September 1996, §§ 65-69, Reports of Judgments and Decisions 1996‑IV, and Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69‑77, 25 March 2014). In addition, the issue as to whether domestic remedies have been exhausted is normally determined by reference to the date when the application was lodged with the Court (see Baumann v. France, no. 33592/96, § 47, ECHR 2001-V (extracts), and Koutalidis v. Greece, no. 18785/13, § 61, 27 November 2014). 27. The Court reiterates that, in cases where the fundamental right to protection against torture, inhuman and degrading treatment is concerned, preventive and compensatory remedies have to be complementary in order to be considered effective (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 98, 10 January 2012). 28. As regards the exhaustion of domestic remedies, the situation of a person who was detained under circumstances which he or she deemed contrary to Article 3 of the Convention and who apprised the Court after his or her release is different from the situation of an individual who is still in detention under the circumstances of which he or she complains (see Koutalidis, cited above, § 61). In particular, an action under section 105 of the Introductory Law to the Civil Code constitutes a purely compensatory remedy which allows the person concerned to seek and obtain redress for his or her conditions of detention in prison following his or her release. However, this remedy does not provide a way to improve a person’s conditions of detention, and thus lacks the preventive element referred to in the judgment in Ananyev and Others (see Papadakis and Others v. Greece, no. 34083/13, § 50, 25 February 2016). 29. The Court also notes that, in its judgment in A.F. v. Greece (no. 53709/11, §§ 59-60, 13 June 2013), it considered it appropriate to examine whether the provisions of a law or regulation which might be relied upon for the purpose of an action under section 105 of the Introductory Law to the Civil Code were drafted in sufficient detail and guaranteed “justiciable” rights (ibid., § 60). (a) The fifth and ninth applicants 30. Turning to the present case, the Court observes that the fifth applicant was transferred to Korydallos Prison on 10 September 2013 to continue serving his sentence. It also observes that the ninth applicant was released on 4 September 2013. Therefore, when they lodged their application with the Court on 20 September 2013, and not on 24 June 2013 as they erroneously maintained, both applicants had left Chios prison and were not detained anymore under the conditions of which they complained to the Court. It follows that, by lodging their application with the Court, the fifth and ninth applicants did not seek to put an end to an ongoing violation of their right not to be subjected to inhuman or degrading treatment in Chios prison, but to obtain a subsequent ruling on the alleged passed violation of Article 3 on account of the conditions of detention in that prison and, if appropriate, to receive just satisfaction for non-pecuniary damage. 31. The Court also notes that the applicants were incarcerated in Chios Prison, and were thus subjected to the provisions of the Penal Code. The applicants’ principal complaints before the Court concern the prison’s overcrowding, the sanitary conditions and the quantity and quality of the food provided. In the Court’s view, Articles 21, 25, 26 and 32 of the Penal Code guarantee justiciable rights to be invoked before the national courts (see Chatzivasiliadis, cited above, § 34). An action under section 105 of the Introductory Law to the Civil Code, in conjunction with the above-mentioned Articles of the Penal Code and Article 3 of the Convention, therefore constituted a domestic remedy which should have been exhausted by the fifth and the ninth applicants. 32. Pursuant to Article 35 §§ 1 and 4, it follows that the application should be rejected on the grounds of non-exhaustion of domestic remedies as far as the fifth and ninth applicants are concerned. (b) The seventh applicant 33. The Court notes that the seventh applicant was released on 29 October 2013. Therefore, when he lodged his application with the Court on 20 September 2013, the seventh applicant was still detained in Chios prison, and the remedy under section 105 of the Introductory Law to the Civil Code would not have been effective for him (see Alexopoulos and Others v. Greece, no. 41804/13, § 27, 6 October 2016). 34. It follows that the Government’s objection as to inadmissibility due to non-exhaustion of domestic remedies should be rejected as far as the seventh applicant is concerned. (c) The rest of the applicants 35. Regarding conditions of detention, the Court has ruled in some cases that applicants had not exhausted domestic remedies, owing to a failure to make use of the remedies provided for by Article 572 of the Code of Criminal Procedure and Article 6 of the Penal Code (Law No. 2776/1999) (Vaden v. Greece, no. 35115/03, §§30-33, 29 March 2007, and Tsivis v. Greece, no. 11553/05, §§ 18-20, 6 December 2007). In those cases, the applicants complained of particular circumstances which had affected them personally as individuals, and to which the prison authorities could put an end by taking the appropriate measures. On the other hand, on many occasions the Court has ruled that, when applicants claim to have been personally affected by the general conditions prevailing in a prison, the remedies provided for by Article 572 of the Code of Criminal Procedure and Article 6 of the Penal Code are not effective (see, among other authorities, Papakonstantinou v. Greece, no. 50765/11, § 51, 13 November 2014). 36. The applicants falling in the latter category, the Court sees no reason to depart from its previous case-law in the instant case. 37. In view of the foregoing, the Government’s objection as to non-exhaustion of domestic remedies should be dismissed. Furthermore, the Court notes that the rest of the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 38. The applicants complained of the conditions of their detention, mainly drawing the Court’s attention to the problem of overcrowding in Chios Prison. 39. Referring to their own description, the Government claimed that the conditions of the applicants’ detention were adequate. 1. General principles 40. The applicable general principles are set out in Muršić v. Croatia [GC] (no. 7334/13, §§ 96-141, 20 October 2016). 2. Application of the above principles to the present case 41. Turning to the circumstances of the present case, the Court notes that the parties provided conflicting descriptions of the conditions of the applicants’ detention in Chios Prison, especially as regards the provision of medical care and the hygiene of the premises. However, there is no need for the Court to establish the veracity of each and every allegation, because it finds a violation of Article 3 on the basis of the facts presented to it which the respondent Government have failed to refute. 42. In this connection, the Court notes that the Government submitted no information on the size of the cells where the applicants were held, or on the number of people accommodated in those cells. They only provided general information on the total number of detainees in Chios Prison and the furniture in the cells (see paragraphs 14-18 above for the Government’s submissions). 43. According to the applicants’ submissions concerning the size and occupancy of the cells, inmates had approximately 2 sq. m or less of personal space (see the applicants’ description of their conditions of detention, paragraphs 8-13 above). The Court takes note of the Government’s assertion that the prison was not overcrowded even though it had exceeded its capacity, but finds that this is not supported by evidence, unlike the applicants’ claims, which were corroborated by the report of the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (see paragraph 20 above). 44. In view of these findings and the relevant principles enunciated in its case-law, the Court finds that a strong presumption of a violation of Article 3 arises in the case at issue (see Ananyev, cited above, § 148). 45. Turning to whether there were factors capable of rebutting the strong presumption of a violation of Article 3 (see Muršić, cited above, §§ 129‑135), the Court notes that the applicants submitted that overcrowding persisted during the course of their detention, such detention ranging from three months (the seventh applicant) to one year and eight months (the first applicant). In view of the applicants’ submissions and the UN Special Rapporteur’s report, and in the absence of any convincing information to the contrary from the Government, the Court accepts the applicants’ argument that Chios Prison was filled beyond its capacity during the course of their detention, to the point that there was a flagrant lack of personal space. It is clear that such a lack of space cannot be seen as short, occasional and minor within the meaning of the Court’s case-law (see Muršić, cited above, § 130). 46. These circumstances are sufficient for the Court to conclude that the strong presumption of a violation of Article 3 has not been rebutted. The above finding renders it unnecessary for the Court to consider separately the rest of the applicants’ allegations regarding their conditions of detention. 47. Accordingly, there has been a violation of Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 48. Relying on Article 13 of the Convention, the applicants complained of a violation of their right to an effective domestic remedy in respect of their complaints under Article 3. 49. The Government contested that argument. 50. 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. 51. For the same reasons as those which have led to the dismissal of the Government’s objection concerning the non-exhaustion of domestic remedies (see paragraphs 26-37 above), the Court finds that there has been a violation of Article 13 owing to the absence of any effective remedies in respect of the applicants’ complaints concerning the conditions of their detention in Chios Prison. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 52. 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 53. The applicants claimed sums ranging from 5,000 to 25,000 euros (EUR), depending on the length of their detention, in respect of non‑pecuniary damage. Relying on the judgments of the Court in Stoica v. Romania (no. 42722/02, 4 March 2008), Galotskin v. Greece (no. 2945/07, 14 January 2010), and Taggatidis and Others v. Greece (no. 2889/09, 11 October 2011), the applicants requested that the sums awarded to them be paid into a bank account indicated by their representatives, owing to the number of applicants and the complexity of the logistical issues involved. 54. The Government contested those claims. They argued that the sums claimed by the applicants were excessive. In the Government’s view, the mere finding of a violation would constitute sufficient just satisfaction. In any event, if the Court wished to award a sum of money to the applicants, it should not exceed EUR 5,000. The Government also contested the need for any sums awarded to be paid into a single bank account indicated by the applicants’ representatives. 55. The Court finds that the applicants must have experienced suffering and frustration as a result of the breaches of their rights under Article 3. By contrast, the finding of a violation may in itself constitute sufficient just satisfaction for a breach of Article 13 of the Convention flowing from the lack of effective domestic remedies in respect of such conditions (see Ananyev, cited above, § 173). Ruling in equity, as required under Article 41 of the Convention, it awards the seventh applicant EUR 5,000, the second, third, fourth, sixth, eighth and tenth to twelfth applicants EUR 6,500 each, and the first, thirteenth and fourteenth applicants EUR 6,700 each, plus any tax that may be chargeable on those amounts. B. Costs and expenses 56. The applicants also claimed EUR 2,500 for costs and expenses incurred before the Court, indicating they had concluded a legal services agreement with their representatives. They asked for this sum to be paid directly into the bank account indicated by their representatives. 57. The Government submitted that only claims supported by documentary evidence should be reimbursed, and asked for the applicants’ claim for costs to be rejected. 58. The Court notes that the applicants did not submit a copy of their legal services agreement with their representatives. Accordingly, it dismisses their claim. C. Default interest 59. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible in respect of the first to fourth, sixth to eighth and tenth to fourteenth applicants, and inadmissible in respect of the fifth and ninth applicants; 2. Holds that there has been a violation of Article 3 of the Convention; 3. Holds that there has been a violation of Article 13 of the Convention, on account of the lack of effective domestic remedies regarding the complaints concerning the conditions of the applicants’ detention; 4. Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts at the rate applicable at the date of settlement, plus any tax that may be chargeable to the applicants,: (i) to the seventh applicant EUR 5,000 (five thousand euros); (ii) to the second, third, fourth, sixth, eighth and tenth to twelfth applicants EUR 6,500 (six thousand five hundred euros) each; and (iii) to the first, thirteenth and fourteenth applicants EUR 6,700 (six thousand seven hundred euros) each; (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, unanimously, the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 9 February 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Renata DegenerMirjana Lazarova TrajkovskaDeputy RegistrarPresident ANNEX

FOURTH SECTION CASE OF H.S. AND OTHERS v. CYPRUS (Application no. 41753/10 and 13 other applications) (See list appended) JUDGMENT STRASBOURG 21 July 2015 FINAL 21/10/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of H.S. and others v. Cyprus, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Guido Raimondi, President,George Nicolaou,Ledi Bianku,Nona Tsotsoria,Paul Mahoney,Krzysztof Wojtyczek,Yonko Grozev, judges,and Françoise Elens-Passos, Section Registrar, Having deliberated in private on 30 June 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in fourteen applications (nos. 41753/10, 41786/10, 41793/10, 41794/10, 41796/10, 41799/10, 41807/10, 41811/10, 41812/10, 41815/10, 41820/10, 41824/10, 41919/10 and 41921/10) against the Republic of Cyprus lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by twelve Syrian nationals of Kurdish origin and two Ajanib (registered stateless) Kurds of Syria (“the applicants”), on 14 June 2010 (see details in the Appendix). 2. The applicants were represented by Ms N. Charalambidou, a lawyer practising in Nicosia. The Cypriot Government (“the Government”) were represented by their Agent at their time, Mr P. Clerides, Attorney-General of the Republic of Cyprus. 3. The applicants alleged that their deportation to Syria would entail the risk of being subjected to treatment in breach of Article 3. In this respect they also complained of the lack of a remedy satisfying the requirements of Article 13 of the Convention. Further, the applicants complained under Article 5 §§ 1 (f), 2 and 4 of the Convention about their detention by the Cypriot authorities. Lastly, they claimed that their deportation would be in breach of Article 4 of Protocol No. 4. 4. On 14 June 2010 the President of the First Section decided to apply Rule 39 of the Rules of Court, indicating to the respondent Government that the applicants should not be deported to Syria. The applications were granted priority on the same date (Rule 41). On 21 September 2010 the President of the First Section, following an examination of all the information received from the parties, decided to lift the interim measure (see paragraph 195 below). 5. On 19 January 2011 the President of the First Section decided to communicate the complaints under Article 5 §§ 1 (f), 2 and 4 of the Convention and Article 4 of Protocol No. 4. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). 6. On 25 August 2011 the Court changed the composition of its Sections (Rule 25 § 1 of the Rules of Court) and the applications were assigned to the newly composed Fourth Section. 7. On 30 November 2012 the President of the Fourth Section decided on her own motion to grant the applicants anonymity (Rule 47 § 3 of the Rules of Court). THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. The applicants’ asylum claims and all relevant proceedings 1. Application no. 41753/10 - H.S v. Cyprus 8. The applicant, who is a Syrian national of Kurdish origin, was born in 1982 in Syria. 9. In his application form to the Court the applicant stated that following the events in Qamishli in March 2004 (see paragraph 242 above; paragraph 3.13 of the United Kingdom Border Agency’s Country of Origin Information Report on Syria) he had participated in demonstrations that took place at his university. He was arrested in July the same year by the civil police and was detained for four days. During this period he was ill-treated and his health was adversely affected by the physical violence he was subjected to. The applicant was arrested again in March 2005 for three days and once again subjected to physical violence. Following his release, he was not able to find any employment as his police file remained open. He also submitted that he had not served compulsory military service. 10. The applicant left Syria on 10 February 2006 and entered Cyprus illegally on 5 March 2006 after travelling from Turkey. He submitted that he secured a visa for Turkey after bribing officials. 11. He applied for asylum in Cyprus on 12 March 2006. 12. The Asylum Service discontinued the examination of his application and closed his file on 29 August 2007 by virtue of section 16A (1) (a) of the Refugee Law of 2000-2004 (as amended up to 2004; Law no. 6(I)/2000; see paragraphs 236 below and M.A. v. Cyprus, no. 41872/10, § 74, ECHR 2013 (extracts)) as the applicant had not complied with the obligation deriving from section 8 of that Law, according to which, in the event of a change of address, the applicant had to inform the Asylum Service either directly or through the local Aliens and Immigration Police Department, within three days (see paragraph 236 below). According to the note in his file the applicant had not attended the interview arranged for 6 July 2007. In the note it is stated that a letter had been sent to him on 7 June 2007 by the Asylum Service requesting him to attend the interview. The applicant, however, had not received this letter as he had changed address in the meantime without notifying the authorities. Furthermore, it had not been possible to make telephone contact with him as he had given a wrong number. 13. The applicant did not lodge an appeal with the Reviewing Authority for Refugees (hereafter “the Reviewing Authority”). 14. The applicant submitted that he never received a letter asking him to attend an interview nor had he received notification of the decision of the Asylum Service to close his file so as to be able to appeal against it. 2. Application no. 41786/10 - A.T. v. Cyprus 15. The applicant, who is a Syrian national of Kurdish origin, was born in 1985 in Syria. 16. The applicant left Syria on 25 September 2008 and entered Cyprus illegally on 12 November 2008 after travelling from Turkey. 17. In his application form to the Court the applicant stated that he had left Syria because he had been harassed and ill-treated by the Syria Security Police due to his origin and his connections to the Yekiti party. He stated that he had left Syria illegally. 18. The applicant applied for asylum in Cyprus on 13 November 2008. In his application for asylum, the applicant claimed that he had left Syria for two reasons. First of all, he had been beaten up by members of the Security Forces as he had complained about having to repair their cars at his car repair garage without payment. Secondly, his business had suffered setbacks by rising oil prices. He stated that he had left Syria legally. 19. The Asylum Service held an interview with him on 15 May 2009. In his interview the applicant claimed that he had been arrested and beaten up by the Security Forces on a number of occasions in connection with their demands to have their cars repaired for free and that the Head of the Security Forces had threatened to imprison him for a very long period. He also claimed that after he had left Syria he had found out that the Security Forces as well as the Syrian authorities were looking for him on the pretext that he had participated in the Qamishli events in 2004. He therefore faced imprisonment if he returned to Syria. 20. His application was dismissed on 29 May 2009 on the ground that he did not fulfil the requirements of the Refugee Law of 2000-2007 (as amended up to 2007), and the 1951 Geneva Convention relating to the Status of Refugees (hereafter “the 1951 Geneva Convention”) in that he had not shown that he had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular group or political opinion or a well-founded fear of serious and unjustified harm for other reasons. The Asylum Service considered that there was no possibility of the applicant being subjected to inhuman or degrading treatment if returned to Syria. The Asylum Service noted that there had been significant discrepancies and inaccuracies in his account of the facts on which his allegations of persecution were based. It held that the applicant’s allegations had been unfounded and had not been credible. 21. On 9 July 2009 the applicant lodged an appeal with the Reviewing Authority against the Asylum Service’s decision. 22. In the copies of the records of the Civil Registry and Migration Department it was noted on 3 March 2010 that in accordance with instructions given by Minister of the Interior on 9 February 2010, if the applicant was traced, the possibility of granting him a special residence permit should be examined before deporting him. Deportation should take place only if the applicant was involved in illegal activities. 23. On 23 April 2010 the Asylum Service’s decision was upheld and the appeal dismissed. 24. The Reviewing Authority pointed to contradictions in the applicant’s claims and held, having regard to all the information and evidence available, that they were unsubstantiated. It noted that the applicant had given two different reasons for which the Head of Security Forces had allegedly threated him with imprisonment. Furthermore, although he initially claimed that the Security forces and the authorities were falsely accusing him of participating in the Qamishli events, he then stated that he had actually participated but was not able to give accurate information concerning these events. Furthermore, the events complained of had happened in 2004 whereas he had left Syria legally in 2008 and he did not allege that during this period he was persecuted by the authorities because of his alleged participation. He was also able to leave Syria legally. The Reviewing Authority further stressed that his claims concerning ill-treatment were incoherent and that the applicant had not been able to describe in any detail the treatment he had been allegedly subjected to. Lastly, in reply to the applicant’s claims before it that he had been subjected to persecution because of his Kurdish origin, the Reviewing Authority observed that the applicant had not applied for asylum on this basis. In any event, it stressed that there was no indication that he had been subjected to any kind of discrimination on the ground of his origin. 25. The Reviewing Authority concluded by observing that the applicant had not established that he was at risk of persecution if he returned to Syria. Nor did he satisfy the conditions for temporary residence on humanitarian grounds. 26. The applicant submitted that he did not receive the decision of the Reviewing Authority but had only heard that his asylum file had been closed. He was therefore not able to appeal. 27. The Government submitted that a letter was sent on 10 May 2010 by double registered mail (registered mail with proof of delivery) to the address given by the applicant. The letter had been returned. They provided a copy of the receipt on which it was noted “insufficient address.” 3. Application no. 41793/10 – F.T. v. Cyprus 28. The applicant, who is a Syrian national of Kurdish origin, was born in 1972 in Syria. 29. In his application form to the Court the applicant submitted that he had converted to Christianity. In 2003 he was detained by the Syrian police and was accused of organising a church congregation (organising people for church). During his detention, which lasted two days, he was tortured by police officers. He did not confess that he had changed religion but told them that he had been going to church to give music lessons. He was arrested again on 12 March 2004 and detained for five days during which he was subjected to torture. After he was released he was told that he would be contacted again. For this reason he started travelling around Syria but never staying in places where too many Kurds lived. 30. The applicant left Syria on an unspecified date in 2005. Although he had left legally, he had bribed a police officer at the border to let him go through. The applicant entered Cyprus illegally after travelling from Turkey. 31. He applied for asylum in Cyprus on 11 May 2005. 32. Following an interview on an unspecified date, his application was dismissed on 16 August 2008 on the ground that he did not fulfil the requirements of the Refugee Law of 2000-2005 (as amended up to 2005; see paragraph 20 above). The Asylum Service held that the applicant’s claims and his alleged fear of persecution on return to Syria were not credible. It noted in this respect that the applicant had been able to obtain a passport lawfully and to leave Syria, that there had been discrepancies between his asylum application and his interview, concerning the grounds for which he had alleged left Syria, and that the applicant lacked basic knowledge of the Christian religion. 33. On 12 September 2006 the applicant lodged an appeal with the Reviewing Authority against the Asylum Service’s decision. 34. It appears that on 17 October 2006 the applicant applied for a temporary residence permit. 35. On 20 March 2007 the decision was upheld and the appeal dismissed. 36. The Reviewing Authority, referring to the Asylum Service’s decision, held that there had been discrepancies in the applicant’s account of the facts and reasons for his departure from Syria which undermined his credibility. The Reviewing Authority noted, inter alia, that although the applicant had claimed that he had left Syria because he had been persecuted by the Security Forces he had been able to obtain a passport lawfully and to leave the country. The applicant had also stated in his interview that he had not faced any difficulties going through passport control as he did not have any problems with the Syrian authorities. Moreover, although the applicant alleged that he had been persecuted and harassed for participating in Kurdish festivities, when requested he did not give any details concerning the alleged persecution. To the extent that the applicant claimed that he had been detained twice following the Qamishli events, the Reviewing Authority observed that the applicant had been released without conditions and had never been charged with any offence. Lastly, the applicant in his interview had claimed that he had converted to Christianity while in Syria in 2002 and that he had left Syria for this reason. He had not, however, mentioned this in his application form on which it was stated that he was a Muslim. In any event, the applicant lacked basic knowledge of the Christian religion and had not been baptised. 37. The Reviewing Authority concluded that the applicant had not established that he was at risk of persecution if he returned to Syria. Nor did he satisfy the conditions for temporary residence on humanitarian grounds. 38. On 25 April 2007 the applicant was put on a stop-list but it was noted that he was not to be deported until further instructions were received from the Ministry of Interior. 39. The applicant did not lodge a recourse against the Reviewing Authority’s decision. He submitted that this was because of the costs of such proceedings and also due to the fact that he was subsequently given a temporary residence permit by the authorities (see paragraph 40 below). 40. On 6 July 2007, the Minister of Interior, following a meeting with the Cyprus-Kurdish Friendship Association on 5 July 2007, decided to grant the applicant a temporary residence permit for one year on the condition that he found a local employer who had authorisation to employ third country nationals. The applicant submitted that he was not able to find such an employer and that the Labour Office was not willing to approve a contract with other employers. 41. Following the expiry of his permit the applicant remained irregularly in Cyprus. 42. The Government submitted a copy of a letter dated 11 March 2009 which the Civil Registry and Migration Department had addressed to the applicant, informing him that following the negative decision of the Reviewing Authority, his application of 17 October 2006 for a residence permit (see paragraph 34 above) had been rejected and that he was requested to proceed to all necessary arrangements so as to depart from the territory of the Republic of Cyprus at once. 43. In the copies of the records of the Civil Registry and Migration Department it was noted on 3 March 2010 that in accordance with instructions given by the Minister of the Interior on 9 February 2010, if the applicant was traced, the possibility of granting him a special residence permit should be examined before deporting him. Deportation should take place only if the applicant was involved in illegal activities. 4. Application no. 41794/10 – A.M. v. Cyprus 44. The applicant is an Ajanib (registered stateless) Kurd born in 1978 in Syria. 45. In his application form to the Court the applicant stated that he was a musician and as he was stateless he was unable to get a licence in Syria in order to practise his profession. Furthermore, a decree by the Governor of Al-Hasakah province in 1988 reportedly prohibited the singing of non-Arabic songs at wedding or festivals (Order No. 1865/sad/24; Human Rights Watch, Syria: The Silenced Kurds, 1 October 1996, E804, page 28). The applicant feared that he would be subjected to arbitrary detention and possibly torture because he was singing Kurdish songs. 46. For this reason he left Syria illegally on 20 January 2007 and entered Cyprus illegally on 28 January 2007 after travelling from Turkey. 47. He applied for asylum on 1 February 2007. 48. The Asylum Service held an interview with him on 9 March 2009. In his interview the applicant alleged, firstly, that his human rights had been violated as he was an Ajanib Kurd; in particular, his rights to education, work and property. Secondly, the applicant stated that he did not want his children to be Ajanib. Thirdly, he claimed that he would be imprisoned if he returned to Syria, as he had left the country illegally. He, however, stated that he had never been arrested and detained, harassed or persecuted by the Syrian authorities. 49. His application was dismissed on 17 March 2009 on the ground that he did not fulfil the requirements of the Refugee Law of 2000-2007 (see paragraph 20 above). In particular, the Asylum Service held that the mere fact that the applicant was an Ajanib Kurd from the Al-Hasakah area did not mean that the applicant was in danger of persecution. In particular, the Asylum Service held that the applicant could not claim to be in danger of persecution and entitled to refugee status simply by reason of being an Ajanib Kurd from the Al-Hasakah area. Furthermore, it considered that there was no possibility of the applicant being subjected to inhuman or degrading treatment if he returned to Syria. 50. On 30 March 2009 the applicant lodged an appeal with the Reviewing Authority against the Asylum Service’s decision. 51. It appears from the documents submitted by the Government that, on 25 August 2009, the applicant was put on the authorities’ “stop list”. 52. On 31 December 2009 the Reviewing Authority upheld the Asylum Service’s decision and dismissed the appeal. 53. The Reviewing Authority stressed, inter alia, that Ajanib Kurds were not persecuted on the basis of their ethnicity when they were not involved in anti-regime activities. The applicant had neither alleged that he had been harassed by the Syrian authorities nor that he had been persecuted by them. Furthermore, the Reviewing Authority observed that unless a person was an opponent of the regime, there was no real risk that leaving Syria illegally would result in persecution on their return. It also noted that according to its own research, Ajanib Kurds were entitled to, among other things, work in the public and private sector, receive an education and register their property. Furthermore, the applicant had given a document which belonged to his father and on which his personal details and family situation were registered such as births, death and divorce. The applicant could thus register his children under his name. Lastly, the applicant’s claim that he could not work as a musician did not constitute persecution or discrimination. 54. The Reviewing Authority concluded by observing that the applicant had not established that he was at risk of persecution if he returned to Syria. Nor did he satisfy the conditions for temporary residence on humanitarian grounds. 55. The applicant submitted that he did not lodge a recourse against this decision as he could not afford to do so. 56. The applicant submitted an attestation from the “Civata Demokratik a Kurd” (“CDK”) in Cyprus dated 26 March 2009 stating that he was a compatriot and participated in the movement of the Kurdish peoples for national and human rights and that he was also a member of the party in Cyprus. It stated that, as many other Kurds and being a stateless Kurd, the applicant was deprived of his rights and had no identity card. He was therefore not able to obtain a licence to work as a musician and that if he was returned to Syria he would be subjected to long term imprisonment, torture and ill treatment. 5. Application no. 41796/10 –M.S. v. Cyprus 57. The applicant is an Ajanib (registered stateless) Kurd born in 1982 in Syria. 58. In his application form to the Court the applicant stated that he was a member of the Yekiti party in Syria and that he was involved in the Qamishli events. Following these events he was too scared to return to his village which had been closed for three months. During that period many people from his village were arrested and tortured by the authorities. Some disappeared. He decided to leave Syria as he was a stateless Kurd and given his political involvement in the Yekiti party and the Qamishli events. 59. The applicant left Syria illegally on 30 November 2006 and entered Cyprus illegally on 1 December 2006 after travelling from Turkey. 60. He applied for asylum on 18 December 2006. 61. The Asylum Service, however, discontinued the examination of his application and closed his file on 6 September 2007 by virtue of sections 8 and 16A (1) (a) of the Refugee Law of 2000-2007 as the applicant had not informed the Asylum Service or the local Aliens and Immigration Police Branch of his change of address (see paragraph 236 below). It was noted in the file that the Asylum Service had received a letter dated 19 March 2007 from the Nicosia District Immigration Office informing them that the applicant had not showed up at their offices within reasonable time and remained illegally in Cyprus. On 26 March 2007 he was put on the authorities’ “stop-list” as a wanted person. Subsequently, by letter dated 4 July 2007 the applicant was asked to attend an interview at the Asylum Service on 22 August 2007. The applicant did not show up and the authorities had not been able to locate him. The letter was returned by the postal service with a note that the applicant had moved. It had not been possible to make telephone contact as he had given a wrong number. 62. On 10 June 2008 the applicant lodged an appeal with the Reviewing Authority which was dismissed on 3 September 2008. The Reviewing Authority observed that the appeal concerned the applicant’s asylum claim and its substance and not the decision of the Asylum Service to close the file. As the substance of his claim had not been examined his appeal should have been directed against the decision to discontinue the examination of his application and not the merits of his case. 63. The applicant submitted that the Asylum Service had never called on him to attend an interview and that he had informed the Immigration Police about his change of address. He had only found out later from his lawyer that his file had been closed because he had not attended the interview. (He submitted an affidavit to this effect dated 24 November 2009 he made at the Paphos District Court.) 6. Application no. 41799/10 – M.J. v. Cyprus 64. The applicant, who is a Syrian national of Kurdish origin, was born in 1982 in Syria. 65. In his application form to the Court the applicant claimed that on 8 March 2005, some police officials approached him while he was working in his field. A fight ensued when the officers wanted to take his fingerprints and he resisted. He beat up one of the officers and managed to escape. He went into hiding as the Syrian police were looking for him. 66. He then left Syria on 25 August 2005 and entered Cyprus illegally on 29 August 2005 after travelling from Turkey. 67. He applied for asylum on 30 August 2005. 68. The Asylum Service held an interview with him on 26 June 2008. 69. His application was dismissed on 10 July 2008 on the ground that he did not fulfil the requirements of the Refugee Law of 2000-2007 and the 1951 Geneva Convention (see paragraph 20 above). The Asylum Service considered that there was no possibility of the applicant being subjected to inhuman or degrading treatment if returned to Syria. It observed in this respect that it transpired during the interview that the applicant had left Syria for financial reasons. Furthermore, to the extent that the applicant alleged that if returned to Syria he would be arrested, convicted and sentenced to long-term imprisonment because he had lodged an asylum application, this was unfounded. On the basis of the information before it, the Syrian authorities did not persecute persons just because they had applied for asylum. 70. On 25 July 2008 the applicant lodged an appeal with the Reviewing Authority against the Asylum Service’s decision. 71. On 26 January 2009 the decision was upheld and the appeal dismissed. 72. The Reviewing Authority observed that in his application form the applicant claimed that he had left Syria because of fear following the Qamishli events. In his interview with the Asylum Service, however, he claimed that he had left Syria for financial reasons and that although he had taken part in the Qamishli events and had been arrested, arrests had been a general phenomenon and this had not been the reason he had left Syria. In his appeal he stated that he had left for financial and political reasons. He had not however, substantiated that he would be subjected to prosecution on political grounds. The applicant was not involved in any political parties and did not carry out any anti-regime activities. Lastly, it found that the applicant’s allegation that he ran the risk of being imprisoned if returned to Syria because the authorities knew he had sought asylum was also unfounded as, on the basis of the information before it, the Syrian authorities did not persecute failed asylum seekers upon their return unless they were opponents of the regime. 73. The applicant submitted that he did not lodge a recourse against this decision as he could not afford to do so. 74. The Government submitted a copy of a letter dated 5 May 2009 which the Civil Registry and Migration Department had addressed to the applicant, informing him that following the negative decision of the Reviewing Authority and the expiry of his temporary residence permit, he was requested to proceed to all necessary arrangements so as to depart from the territory of the Republic of Cyprus at once. 75. On 29 May 2009 the applicant was put on the authorities’ “stop list”. 76. The applicant submitted that the Syrian authorities were still looking for him. 7. Application no. 41807/10 – A.Hu. v. Cyprus 77. The applicant, who is a Syrian national of Kurdish origin, was born in 1984 in Syria. 78. In his application form to the Court the applicant claims that on 20 March 2005, while he was serving in the Syrian army, he was arrested and taken into detention by the Syrian authorities along with other Kurds because of Nowruz (the Iranian New Year, Nowruz or Newroz marks the first day of spring or Equinox and the beginning of the year in the Persian calendar). He was tortured for ten days along with his co-detainees. They were put into a car tyre and were subjected to bastinado. They were accused of conspiring against the State. Military proceedings were brought against him but after completion of his military service the charges were dropped. During this time the military police collected information on him and his friends and he was entered on a database as a dangerous individual. He was arrested again on 21 March 2006 because he attended the Nowruz celebrations and was a member of Yekiti party. He was detained for a week and was released after bribing the District Officer. He was then re-arrested on 15 August 2006 at his house after attending a Yekiti party meeting. He was released after bribing the same official. He then decided to leave Syria and managed to obtain a Turkish visa after bribing a Syrian security official working at the Turkish embassy. 79. The applicant left Syria in August 2006 and entered Cyprus illegally after travelling from Turkey. 80. He applied for asylum on 25 August 2006. He claimed that he had left Syria because as a Kurd he had been subjected to discrimination. Kurds were persecuted and did not enjoy any rights. He had therefore left for fear of his life. 81. The Asylum Service held an interview with him on 27 February 2009. The applicant claimed, inter alia, that he was a follower/supporter of the Yekiti Party, he had left Syria due to the injustice that Kurds suffered, and in particular, although he had a passport he had no other rights and he could not buy a house or land or work. He claimed that he was known to the Syrian authorities and he had been taken at the police station and beaten up on several occasions. He had been arrested and detained on a number of occasions. In particular, in 2005 he had been arrested and detained for four or five days for participating in the Nowruz festivities. He had been arrested on another occasion for problems he had in the army. In May 2006 he was detained for a week and in August 2006 for four days. The latter two times he had been released after paying a sum of money. He also stated that he was not wanted by the authorities and no other member of his family had ever been arrested. He claimed that he feared arrest if returned to Syria. 82. Subsequently, the Asylum Service called the applicant for a second interview and asked him to provide any documents he had concerning his application. The second interview was held on 10 April 2009. In this the applicant claimed, inter alia, that certain members of his family worked and that although the job market was not good, he would be able to work if he managed to find something. The applicant stated that he had been arrested on 20/21 March 2005 when he was in the army following a dispute with another soldier on 21 March 2006 for participating in the Nowruz festivities, and on 25 May 2006 and 2 August 2008 when demonstrations took place even though he was not involved. He was not, however, wanted by the authorities nor did he have any problems by reason of the fact that he was a follower of the Yekiti party. 83. His application was dismissed on 13 May 2009 on the ground that he did not fulfil the requirements of the Refugee Law of 2000-2007 (see paragraph 20 above). The Asylum Service considered that there was no possibility of the applicant being subjected to inhuman or degrading treatment if returned to Syria. It therefore held that his asylum application had not been substantiated. In particular, the Asylum Service pointed out that during his interview he had claimed that he had left Syria for two reasons: because of his Kurdish origin he could not work and buy a house or land and secondly due to his arrests by the Syrian authorities. With regard to the first claim, they noted that he had not substantiated that he had been subjected to any form of discrimination due to his origin. As regards the arrests the applicant’s allegations remained unfounded as he had not given any specific answers to questions that had been put to him. Furthermore, during the interview the Asylum Service had spotted a number of significant untruths/falsehoods concerning his claim. 84. On 3 June 2009 the applicant lodged an appeal with the Reviewing Authority against the Asylum Service’s decision. 85. On 28 April 2010 the decision was upheld and the appeal dismissed. 86. The Reviewing Authority observed that the applicant had not been subjected to persecution and had claimed that he was not wanted by the Syrian authorities. In its decision it observed that the applicant’s claims had not been credible and had been vague and unsubstantiated. Although he claimed that he could not buy a house or land, he then stated that his parents owned a house which they lived in. Further, although he initially claimed that he could not work due to the fact that he was Kurdish he then stated that his family worked and he also was able to. The information he gave concerning his arrest and reasons was equally general and vague. He was not in a position to give specific replies to questions given concerning these matters. The Reviewing Authority observed that the applicant had not been able to reply satisfactorily and with precision to certain questions and give information concerning his claims. 87. In conclusion, the Reviewing Authority held that the applicant had not established that he was at risk of persecution if he returned to Syria. Nor did he satisfy the conditions for temporary residence on humanitarian grounds. 88. The applicant submitted that he did not lodge a recourse against this decision as he could not afford to do so and at that time no legal aid was granted in such cases. 8. Application no. 41811/10 – H.H. v. Cyprus 89. The applicant, who is a Syrian national of Kurdish origin, was born in 1979 in Syria. 90. In his application form to the Court the applicant claimed that he and his family are members of the Azadi Kurdish party in Syria which was banned by the authorities. In early September 2006 the applicant was driving his motorbike in his village carrying Azadi party papers. The civil police in Aleppo ordered him to stop but he fled as he was scared that they would find the papers. The police pursued him but he managed to escape. The next day the police went to his house. The same day he got a visa on his passport. 91. The applicant left Syria on 19 September 2006 and entered Cyprus illegally on 23 September 2006 after travelling from Turkey. 92. He applied for asylum on 26 September 2006. 93. The Asylum Service, however, discontinued the examination of his application and closed his file on 3 April 2009 by virtue of section 16A (1) (c) of the Refugee Law of 2000-2007 (see paragraph 236 below) as the applicant had not come to the interview which had been fixed for 27 March 2009 despite having received the letter requesting him to attend. It was noted in the file that the letter had been sent to him by double registered mail and there was indication he had received it. It was also noted that the applicant, on 19 March 2009, had confirmed on the telephone after receiving a call by the Asylum Service that he would come to the interview. Despite this he had not shown up. Lastly, there was no indication that the applicant had departed from the country. 94. The applicant did not lodge an appeal with the Reviewing Authority. 95. The applicant submitted that he never received a letter asking him to attend an interview and that he had not received notification of the decision of the Asylum Service to close his file. He was subsequently informed of the closure of his file but he did not appeal against the decision as he did not know the procedure to follow and the steps to take so he could appeal against it. He was also scared to approach the authorities. 96. In the copies of the records of the Civil Registry and Migration Department it was noted on 3 March 2010 that in accordance with the instructions of the Minister of the Interior given on 9 February 2010, if the applicant was traced, the possibility of granting him a special residence permit should be examined before deporting him. Deportation should take place only if the applicant was involved in illegal activities. 97. The applicant submitted that the Syrian police were still looking for him. 9. Application no. 41812/10 – A.Ab. v. Cyprus 98. The applicant, who is a Syrian national of Kurdish origin, was born in 1979 in Syria. 99. In his application form to the Court the applicant stated that on 13 March 2004 he participated in a demonstration in his village concerning the Qamishli uprising. He had a camera and was taking photographs of the event when the civil police arrested him. He was blindfolded, placed in a police vehicle and transferred to the central detention centre of the village. There he was continuously tortured and ill-treated for one month. After his release, he was obliged to report to the police every two days. On 2 January 2005, nine months after his release, the applicant decided to leave Syria as he was no longer able to handle the feeling of insecurity. He applied to get a passport from the authorities but this was refused. He succeeded in getting one after bribing officials. 100. The applicant left Syria on 14 March 2005 and entered Cyprus illegally travelling from Turkey. 101. He applied for asylum on 30 March 2005. 102. The Asylum Service held an interview with him on 12 June 2008. 103. His application was dismissed on 8 July 2008 on the ground that he did not fulfil the requirements of the Refugee Law of 2000-2007 (see paragraph 20 above). The Asylum Service considered that there was no possibility of the applicant being subjected to inhuman or degrading treatment if returned to Syria. It noted that no form of discrimination or persecution transpired from the applicant’s claims. There had been discrepancies between his application and the allegations made during his interview, which undermined his credibility. It held that the applicant’s claims and his alleged fear of persecution on return to Syria were not credible. 104. On 21 July 2008 the applicant lodged an appeal with the Reviewing Authority against the Asylum Service’s decision. 105. On 29 September 2008 the decision was upheld and the appeal dismissed. 106. The Reviewing Authority noted that there were serious discrepancies between what he stated in his asylum application form and during his interview. For example, in his application he stated that he had left Syria because he was Kurdish and he had problems with the Syrian authorities. During the interview he had alleged that he had not left Syria for political reasons but because his family had reached an agreement with another family to marry against his wishes. The applicant had also claimed that he had to move about in the country in order to avoid being caught by the authorities but then stated that he did not face any serious problems. Further, he initially claimed during the interview that even though he had signed his application form he did not know the contents as this had been filled in by another person. He subsequently, stated, however, that the contents were of a political nature and that he had told the person filling in the form to write whatever he wanted. This undermined the applicant’s credibility. 107. The Reviewing Authority concluded that the applicant had not established that he was at risk of persecution if he returned to Syria. Nor did he satisfy the conditions for temporary residence on humanitarian grounds. The letter of notification addressed to the applicant by the Reviewing Authority dated 29 September 2008 stated that its decision was subject to adjudication before the Supreme Court within seventy-five days from the date he was informed of the decision. 108. The applicant submitted that he did not lodge a recourse against the Reviewing Authority’s decision as he did not know he had the right to do so. 109. The Government submitted a copy of a letter dated 24 March 2009 which the Civil Registry and Migration Department had addressed to the applicant, informing him that following the negative decision of the Reviewing Authority as well as the expiry of his temporary residence permit, he was requested to proceed to all necessary arrangements so as to depart from the territory of the Republic of Cyprus at once. 110. On 10 August 2009 the applicant was put on the authorities’ “stop- list”. 10. Application no. 41815/10 – M.K. v. Cyprus 111. The applicant, who is a Syrian national of Kurdish origin, was born in 1985 in Syria. 112. In his application form to the Court the applicant claimed that on 20 March 2007 he lit a fire with some friends to celebrate Nowruz. When the police came he managed to flee but his friends were arrested. He later found out from his family that the police were looking for him. He left Syria on 29 September 2007 through the border with Turkey after the taxi driver bribed the officials. 113. The applicant entered Cyprus illegally in October or beginning of November 2011 after travelling from Turkey. 114. He applied for asylum on 7 November 2007. He claimed that he had left Syria because he had participated in a demonstration concerning Kurdish rights and that for this reason he was sought after by the Syrian authorities. 115. The Asylum Service held an interview with him on 4 November 2008. The applicant claimed, that following the demonstration the authorities had asked certain of the persons that had been arrested information about him. He had left Syria for this reason. He also claimed that if he returned to Syria he might not be allowed entry or he ran the risk of being arrested. Furthermore, he stated that he had never been detained, harassed or persecuted by the Syrian authorities and that he or his family did not belong to any, inter alia, political, religious or military group/organisation. 116. His application was dismissed on 23 April 2009 on the ground that he did not fulfil the requirements of the Refugee Law of 2000-2007 and the 1951 Geneva Convention (see paragraph 20 above). The Asylum Service considered that there was no possibility of the applicant being subjected to inhuman or degrading treatment if returned to Syria. It observed that the applicant’s allegations were general and vague. In particular, it noted that the applicant had failed to give any information/details about the demonstration he had allegedly participated in despite being asked during the interview. It concluded that his allegations had been unfounded and had not been credible. 117. On 20 May 2009 the applicant lodged an appeal with the Reviewing Authority against the Asylum Service’s decision. 118. On 19 March 2010 the decision was upheld and the appeal dismissed. 119. The Reviewing Authority observed that the applicant had admitted that he had not been subjected to any harassment or persecution. His allegations concerning his fears of arrest were vague and general. He was not in a position to specify when and which demonstration he had taken part despite being asked specific questions on this during the interview. Furthermore, he had been able to leave the country legally without any problems. There was no indication that the Syrian authorities were searching for him. 120. In conclusion, the Reviewing Authority held that the applicant had not established that he was at risk of persecution if he returned to Syria. Nor did he satisfy the conditions for temporary residence on humanitarian grounds. 121. The applicant submitted that he did not lodge a recourse against this decision as he was advised by a lawyer that it would be a waste of time and effort as the Supreme Court dismissed all such cases. 11. Application no. 41820/10 – H.M. v. Cyprus 122. The applicant, who is a Syrian national of Kurdish origin, was born in 1985 in Syria. 123. In his application form to the Court the applicant claimed that when he was in the Syrian army he was detained for forty days on the basis of his ethnic identity. During that period he was subjected to ill-treatment such as standing still under the sun for long periods. There were also other Kurds detained with the applicant and they were all told that this was a preparation for what was going to happen to all the Kurds in the future. The applicant was also involved in cultural (folklore) activities of the Yekiti party. Participation in cultural groups such as dance, drama or folkloric groups that wear Kurdish traditional dress and participate in funerals or other social rites was considered by the authorities to be political and thus repressed. The Syrian government and authorities tended to politicise ordinary people who participated in these activities and therefore they ran a risk of being criminalised and exposed to persecution by the authorities. 124. The applicant left Syria in June 2006 legally but only after bribing officials at the border with Turkey. 125. The applicant entered Cyprus illegally on 20 June 2006 after travelling from Turkey. 126. He applied for asylum on 28 June 2006. 127. The Asylum Service held an interview with him on 18 July 2008. 128. His application was dismissed on 8 August 2008 on the ground that he did not fulfil the requirements of the Refugee Law of 2000-2007 and the 1951 Geneva Convention (see paragraph 20 above). The Asylum Service considered that there was no possibility of the applicant being subjected to inhuman or degrading treatment if returned to Syria. It noted that the applicant, during the interview, had claimed that he had left Syria due to a long standing property dispute between his family and another family. Although the Asylum Service did not question the credibility of his allegations concerning the existence of this dispute as such it did not find the applicant’s claims as to his involvement in this dispute credible and that his departure from Syria was justified on this ground. The statements made in his interview were contradictory and he had stated that his life was not in danger. Eventually, the applicant had admitted that he had left Syria for financial reasons and faced no danger if he returned. 129. On 8 September 2008 the applicant lodged an appeal with the Reviewing Authority against the Asylum Service’s decision. 130. On 16 June 2009 the decision was upheld and the appeal dismissed. 131. The Reviewing Authority observed that the applicant’s account of facts concerning the alleged family dispute were contradictory. Furthermore, in his asylum application form he had stated that he his life was not in danger and that he had left Syria lawfully and for financial reasons. It had also become clear during the interview that the applicant had not left Syria for the reasons he had initially claimed but for financial reasons; he could not find work with an adequate salary. He was therefore using the asylum procedure to extend his stay in Cyprus. New claims put forward by the applicant in his appeal that he was wanted by the Syrian authorities because he had taken part in the Nowruz celebrations and that had been detained for three months had not been substantiated and had not been raised by the applicant in his asylum application form or his interview with the Asylum Service. Lastly, the applicant had admitted that his life would not be in danger if he returned nor would he be punished. 132. In conclusion, the Reviewing Authority held that the applicant had not established that he was at risk of persecution if he returned to Syria. Nor did he satisfy the conditions for temporary residence on humanitarian grounds. 133. The applicant submitted that he did not lodge a recourse against this decision as he could not afford to pay a lawyer. 134. The Government submitted a copy of a letter dated 30 July 2009 which the Civil Registry and Migration Department had addressed to the applicant, informing him that following the negative decision of the Reviewing Authority, he was requested to proceed to all necessary arrangements so as to depart from the territory of the Republic of Cyprus at once. 12. Application no. 41824/10 – I.K. v. Cyprus 135. The applicant, who is a Syrian national of Kurdish origin, was born in 1984 in Syria. 136. In his application form to the Court the applicant claimed that on 20 March 2006 he and his mother lit a small fire to celebrate Nowruz. They also had the Kurdistan flag on their roof. The police raided their house during which they hit the applicant’s mother. She fell and had a minor head injury. They arrested the applicant and put him in detention. There were no formal legal proceedings and the applicant was released after his family bribed the police. In 2007 he was arrested once again but was released with the help of his family who bribed the officers. He managed to obtain a passport through bribery and left Syria on 15 July 2007. 137. The applicant entered Cyprus illegally on an unspecified date after travelling from Turkey. 138. He applied for asylum on 30 September 2007. 139. The Asylum Service held an interview with him on 8 January 2009. 140. His application was dismissed on 10 February 2009 on the ground that he did not fulfil the requirements of the Refugee Law of 2000-2007 and the 1951 Geneva Convention (see paragraph 20 above). The Asylum Service considered that there was no possibility of the applicant being subjected to inhuman or degrading treatment if returned to Syria. It noted that the applicant, during the interview, had claimed that he had left Syria because he had been persecuted by the Syrian authorities for being a member of the PKK (the Kurdistan Workers Party, an illegal organisation). It held that the applicant’s claims were not credible as he had not been able to reply satisfactorily to basic questions concerning the party. He was not therefore able to establish that his was a member of the party and therefore substantiate that this was the ground for which he was allegedly persecuted. 141. On 24 February 2009 the applicant lodged an appeal with the Reviewing Authority against the Asylum Service’s decision. 142. On 25 August 2009 the decision was upheld and the appeal dismissed. 143. The Reviewing Authority in its decision observed that the applicant’s claims had not been credible and had been unsubstantiated. It noted that although the applicant claimed that he had been persecuted for being a member of the PKK and participating in activities and had fled for this reason, he was not able to give any information about the party. For example, he did not know who was the leader of the PKK, he was not able to draw the flag or to explain what the initials meant. Furthermore, he had a passport and had left the country legally without any problems. 144. In conclusion, the Reviewing Authority held that the applicant had not established that he was at risk of persecution if he returned to Syria. Nor did he satisfy the conditions for temporary residence on humanitarian grounds. 145. The applicant did not lodge a recourse against this decision. 146. By a letter dated 26 January 2010 the Civil Registry and Migration Department asked the applicant, following the negative decision of the Reviewing Authority, to proceed to all necessary arrangements so as to depart from the territory of the Republic of Cyprus at once. 147. On 3 March 2010 the applicant was put on the authorities’ “stop-list”. 13. Application no. 41919/10 – M.Y. v. Cyprus 148. The applicant, who is a Syrian national of Kurdish origin, was born in 1981 in Syria. He is married and has one child. 149. In his application form to the Court the applicant stated that he was a member of the banned Azadi Kurdish party. On 7 August 2003 he completed his military service and then went back to his village where he discovered that the Syrian authorities had changed the name of his village into an Arabic one. Along with four other persons they rewrote the original name over the Arabic one on the road signs. After this, the intelligence service detained two of his friends. The applicant and the others fled to Aleppo. From the two persons arrested, the one disappeared in the hands of the authorities and the second one was released after spending two years in detention and after disclosing the identities of the ones who managed to escape. After getting help from members of the Azadi party, the applicant managed to get a passport. 150. The applicant left Syria on 23 September 2003 and came to Cyprus on 27 September 2003 with a tourist visa after travelling from Lebanon. 151. He applied for asylum on 23 September 2004, about a year later. In his form he claimed that he had left Syria because of the inhuman treatment Kurds were subjected to and their difficult living conditions. 152. The Asylum Service held an interview with him on 20 May 2008. During this he stated that he had left Syria because the Kurds had no rights and that a photograph had been taken of him during a demonstration of the Azadi party. He stated that he feared arrest and imprisonment upon his retrun. 153. His application was dismissed on 30 May 2008 on the ground that he did not fulfil the requirements of the Refugee Law of 2000-2007 (see paragraph 20 above). The Asylum Service found that the asylum application had not been substantiated. It noted that there had been discrepancies in his account of the facts which undermined his credibility in so far as he claimed that he had taken part in a demonstration during which his photo had been taken by the Syrian authorities. Further, it considered that there was no possibility of the applicant being subjected to inhuman or degrading treatment if returned to Syria. 154. On 11 June 2008 the applicant lodged an appeal with the Reviewing Authority against the Asylum Service’s decision. 155. On 12 September 2008 the decision was upheld and the appeal dismissed. 156. The Reviewing Authority in its decision observed that the applicant in his application had claimed that he had left Syria because of the conditions of living and human rights violations of Kurds. In his interview he also claimed that he had left as the authorities had taken a photo of him during a demonstration of the Azadi party in 2001 and if he returned he would be imprisoned as this is normally the case. The applicant was not able to give a more specific time frame for the demonstration The Reviewing Authority noted that the applicant had not had any problems with the authorities following that demonstration. At the same time he had claimed that he worked on and off in Lebanon for a period of two years and occasionally returned to Syria without any problems. He alleged that only on one occasion did the authorities force him and some friends to break up a meeting for Nowruz. The applicant’s account of facts and claims were full of discrepancies and unsubstantiated, undermining his credibility. 157. In conclusion, the Reviewing Authority held that the applicant had not established that he was at risk of persecution if he returned to Syria. Nor did he satisfy the conditions for temporary residence on humanitarian grounds. 158. The applicant submitted that he did not lodge a recourse against this decision as he was advised by a lawyer that it would be a waste of time and effort as the Supreme Court dismissed all such cases. 159. It appears that the applicant’s wife also applied for asylum. Her application was rejected on 24 July 2008 and her appeal on 25 September 2008. She was then asked, in a letter dated 23 June 2009 sent by the Civil Registry and Migration Department, to proceed to all necessary arrangements so as to depart from the territory of the Republic of Cyprus at once. 160. On 27 August 2009 she was put on the authorities’ “stop-list”. 14. Application no. 41921/10 – H.Sw. v. Cyprus 161. The applicant, who is a Syrian national of Kurdish origin, was born in 1981 in Syria. He is married and has a child. 162. In his application form to the Court the applicant stated that on 12 March 2004 during the events at the football match in Qamishli, he got scared and left the town. He went to his home village, Amer Capi, where he stayed for seven months. When the situation improved he returned to Qamishli. On 1 June 2005 the civil police killed a prominent Kurdish religious leader. During the demonstration at the mosque the police officers took pictures of the demonstrators and two days later went to the applicant’s house searching for him. On 14 June 2005 the applicant left Syria. He travelled from Qamishli to Aleppo and then obtained a visa after bribing someone to issue a visa for Turkey. 163. The applicant entered Cyprus illegally on 16 June 2005 after travelling from Turkey. 164. He applied for asylum in June or July 2005. He claimed that he had left Syria legally in order to find work. 165. The Asylum Service held an interview with him on 1 August 2008. 166. His application was dismissed on 23 October 2008 on the ground that he did not fulfil the requirements of the Refugee Law of 2000-2007 and the 1951 Geneva Convention (see paragraph 20 above). The Asylum Service considered that there was no possibility of the applicant being subjected to inhuman or degrading treatment if returned to Syria. It noted that the applicant, during the interview, had claimed that he had left Syria because he was wanted by the Syrian authorities for participating in an illegal demonstration. His allegations, however, were unfounded and not credible, as during the interview his account of facts was full of discrepancies, contradictions and untruths. Furthermore, there were discrepancies between his written application form and the allegations made during the interview. In particular, the grounds he gave in his interview for leaving Syria where not the same as those he had given in his application. This undermined his overall credibility. 167. The applicant claims that he was not informed of the decision and in August 2009 he asked a non-governmental organisation to follow up his case. It was then that he discovered that his application had been dismissed. 168. In the meantime it appears that his temporary residence permit granted to him on the ground that he was an asylum seeker expired. 169. On 3 December 2009 the applicant lodged an appeal with the Reviewing Authority against the Asylum Service’s decision. 170. On 3 March 2010 his appeal was dismissed under Section 28 F (2) of the Refugee Law 2000-2009 (as amended up to 2009) on the ground that it had been filed out of time. The Reviewing Authority observed that the letter informing the applicant of the dismissal of his asylum application dated 23 October 2008 was served through a private messenger and that the delivery slip was signed by his fellow lodger. It noted that on 10 August 2009 a letter had been sent by a non-governmental organisation requesting information about the stage of proceedings of the applicant’s application. A letter was sent dated 17 August 2009 informing the NGO that the applicant’s claim had been examined, the decision had been sent to the applicant by registered post and according to the file it had been received. The appeal deadline was twenty days from the date the applicant was notified of the decision on the basis of section 28 F (2) of the Refugee Law (see paragraph 237 below). The appeal was filed on 9 December 2009, more than thirteen months following the date he had been notified of the decision. 171. The Government submitted that a letter was sent on 19 March 2010 informing him of this decision by double registered mail to the address given by the applicant. The letter had been returned. They provided a copy of the receipt on which it was noted “unclaimed”. 172. The applicant did not lodge a recourse against the Reviewing Authority’s decision. 173. The Government submitted a copy of a letter dated 27 May 2010 which the Civil Registry and Migration Department had addressed to the applicant, informing him that following the negative decision of the Reviewing Authority he was requested to proceed to all necessary arrangements so as to depart from the territory of the Republic of Cyprus at once. B. The applicants’ arrest and detention 174. On 17 May 2010 the Yekiti Party and other Kurds from Syria organised a demonstration in Nicosia, near the Representation of the European Commission, the Ministry of Labour and Social Insurance and the Government Printing Office. They were protesting against the restrictive policies of the Cypriot Asylum Service in granting international protection. About 150 Kurds from Syria, including the applicants, remained in the area around the clock, having set up about eighty tents on the pavement. According to the Government, the encampment conditions were unsanitary and protesters were obstructing road and pedestrian traffic. The encampment had become a hazard to public health and created a public nuisance. The protesters performed their daily chores on the pavement, including cooking and washing in unsanitary conditions. The sewage pits had overflown, causing a nuisance and offensive odours. The public lavatories were dirty and the rubbish bins of the Government buildings were being used and, as a result, were continuously overflowing. Furthermore, the protesters were unlawfully obtaining electricity from the Printing Office. Members of the public who lived or worked in the area had complained to the authorities. The Government submitted that efforts had been made by the authorities to persuade the protesters to leave, but to no avail. As a result, the authorities had decided to take action to remove the protesters from the area. 175. On 28 May 2010 instructions were given by the Minister of the Interior to proceed with the deportation of Syrian-Kurdish failed asylum seekers in the normal way. According to the Government these instructions superseded the ones given by the Minister of the Interior on 9 February 2010 (see paragraphs 22, 43 and 96 above). 176. On 31 May 2010 the Minister requested the Chief of Police, among others, to take action in order to implement his instructions. Further, he endorsed suggestions made by the competent authorities that deportation and detention orders be issued against Syrian-Kurdish failed asylum seekers who had passports and did not have Ajanib or Maktoumeen status and that the police execute the orders starting with the ones issued against the leaders of the protesters. The police were also directed to take into account the policy guidelines and to use discreet methods of arrest. 177. According to the Government, letters were sent by the Civil Registry and Migration Department to a number of failed Syrian-Kurdish asylum-seekers informing them that they had to make arrangements to leave Cyprus in view of their asylum applications being turned down (see M.A. v. Cyprus, no. 41872/10, § 32, ECHR 2013 (extracts)). The letter sent to H.Sw. was dated 27 May 2010, in thirteen cases, including those of H.S., A.T., M.S, A. Hu, H.H. and M.Y the letters were dated 1 June 2010, in respect of AM, the letter was dated 9 June 2010 and in respect of M.K., the letter was dated 28 June 2010. Another letter was dated 16 June 2010 (the asylum procedures having been completed in early 2008) and one letter was dated 5 February 2011 in a case where the asylum procedure had been completed on 22 April 2010 and the person in question had voluntarily agreed and did return to Syria on 24 September 2010. Letters had been sent out to the remaining applicants much earlier (see paragraphs 42, 74, 109 and 134 above). 178. From documents submitted by the Government it appears that from 31 May until 7 June 2010 the authorities kept the area under surveillance and kept a record of the protesters’ daily activities and of all comings and goings. In the relevant records it is noted that invariably, between 1.30 a.m. and 5.30 a.m., things were, in general, quiet, and everyone was sleeping apart from those keeping guard. During the above-mentioned period a large-scale operation was organised by the Police Emergency Response Unit, “ERU” (“ΜΜΑΔ”), and a number of other authorities, including the Police Aliens and Immigration Unit, for the removal of the protesters and their transfer to the ERU headquarters for the purpose of ascertaining their status on a case-by-case basis. 179. In the meantime, between 28 May 2010 and 2 June 2010 orders for the detention and deportation of forty-five failed asylum seekers were issued following background checks. These included applicants A.T., F.T. and H.H. in respect of whom the orders were issued on 2 June 2010 pursuant to section 14 (6) of the Aliens and Immigration Law on the ground that they were “prohibited immigrants” within the meaning of section 6(1)(k) of that Law. Letters were sent by the District Aliens and Immigration Branch of the Nicosia Police to the Director of the Aliens and Immigration Service and the Ministry of Justice and Public Order, containing a short paragraph with information as to the immigration status of each person. This information included the date of rejection of the asylum application or the closure of the asylum file by the Asylum Service, the date of dismissal of the appeal by the Reviewing Authority, where lodged, and the date some of those concerned had been included on the authorities’ “stop list” (a register of individuals whose entry into and exit from Cyprus is banned or subject to monitoring). The letters recommended the issuance of deportation and detention orders. The Government submitted copies of two such letters with information concerning thirteen people. 180. The letter that included information on F.T. and another four of the persons detained stated that they all appeared to lead the political group, YEKITI, which was active in Cyprus and that they organised demonstrations complaining about their rights in Cyprus. It was considered that if the opportunity was given to them to organise themselves they could constitute a future threat to the security of Cyprus. 181. On 2 June 2010, letters were also prepared in English by the Civil Registry and Migration Department informing those concerned of the decision to detain and deport them. These included applicants A.T.., F.T. and H.H. The Government submitted that, at the time, the authorities did not know whether the individuals concerned by the decisions were among the protesters. 182. The removal operation was carried out on 11 June 2010, between approximately 3 a.m. and 5 a.m. with the participation of about 250 officers from the Police Aliens and Immigration Unit, the ERU, the Nicosia District Police Division, the Traffic Division, the Fire Service and the Office for Combating Discrimination of the Cyprus Police Headquarters. The protesters, including the applicants, were led to buses, apparently without any reaction or resistance on their part. At 3.22 a.m. the mini buses carrying the male protesters left. The women, children and babies followed at 3.35 a.m. A total of 149 people were located at the place of protest and were transferred to the ERU headquarters: eighty-seven men, twenty-two women and forty children. Upon arrival, registration took place and the status of each person was examined using computers which had been specially installed the day before. The Government submitted that during this period the protesters had not been handcuffed or put in cells but had been assembled in rooms and given food and drink. It appears from the documents submitted by the Government that by 6.40 a.m. the identification of approximately half of the group had been completed and that the whole operation had ended by 4.30 p.m. The applicants do not contest the Government’s account. 183. It was ascertained that seventy-six of the adults, along with their thirty children, were in the Republic unlawfully. Their asylum applications had either been dismissed or their files closed for failure to attend interviews. Those who had appealed to the Reviewing Authority had had their appeals dismissed. Some final decisions dated back to 2006. A number of people had also been included on the authorities’ “stop list”. Deportation orders had already been issued for twenty-three of them (see paragraph 34 above). 184. The authorities deported twenty-two people on the same day at around 6.30 p.m. (nineteen adults and three children). Forty-four people (forty-two men and two women), including the applicants, were arrested. Applicants A.T., F.T.. and H.H were detained under the deportation and detention orders that had been issued on 2 June 2010 (see paragraph 181 above). The remaining applicants were charged with the criminal offence of unlawful stay in the Republic under section 19(2) of the Aliens and Immigration Law (see M.A., cited above, § 65). The applicants, along with the other detainees, were transferred to various detention centres in Cyprus. H.S., A.T., F.T., and M.S. were placed in the Limassol Police Station Detention Facility; A.M. in the Larnaca Police Station Detention facility; M.J. and H.Sw. in the Paphos Police station Detention facility; A.Hu., H.H., A.Ab., I.K. and M.Y. in the immigration detention facilities in the Nicosia Central Prisons (Block 10); M.K. in the Paralimni Police Station Detention facility and H.M. in the Xilofagou Police Station Facility. All those detained who were found to be legally resident in the Republic returned to their homes. Further, on humanitarian grounds, thirteen women whose husbands were detained pending deportation and who had a total of twenty-seven children between them were not arrested themselves. This included M.Y’s wife (see paragraphs 159-160 above). 185. According to the Government, the applicants and their co-detainees were informed orally that they had been arrested and detained on the basis that they had been staying in the Republic unlawfully and were thus “prohibited immigrants” (see M.A., cited above, § 62). They were also informed of their rights pursuant to the Rights of Persons Arrested and Detained Law 2005 (Law no. 163(I)/of 2005) (see M.A., cited above, § 93) and, in particular, of their right to contact by phone, in person and in private, a lawyer of their own choice. The applicants submitted that they had not been informed of the reasons for their arrest and detention on that date. 186. On the same day letters were sent by the District Aliens and Immigration Branch of the Nicosia Police to the Director of the Aliens and Immigration Service and the Ministry of Justice and Public Order, recommending the issuance of deportation and detention orders. The letters contained a short paragraph in respect of each person with information as to his or her immigration status. This included the date of rejection of the asylum application or the closure of the asylum file by the Asylum Service and the date of dismissal of the appeal by the Reviewing Authority where lodged. Some letters also referred to the date the asylum application had been lodged and the date some of the individuals concerned had been included on the authorities’ “stop list”. The Government submitted copies of letters concerning thirty-seven people (most of these letters referred to groups of people). 187. Deportation and detention orders were also issued in Greek on the same day in respect of the remaining fifty-three people detained (see paragraph 183 above), including the remaining eleven applicants (see paragraph 179 above), pursuant to section 14 (6) of the Aliens and Immigration Law on the ground that they were “prohibited immigrants” within the meaning of section 6(1)(k) of that Law. These were couched in identical terms. The order issued in respect of A.Ab. also referred to 6(1)(l) of the Law. In respect of one more person the order mentioned sections 6(1)(i) (see M.A., cited above, § 41). 188. Subsequently, on the same date, letters were prepared in English by the Civil Registry and Migration Department informing all the detainees individually, including the remaining applicants (see paragraph 187 above), of the decision to detain and deport them. The Government submitted thirty-seven copies of these letters, including those addressed to the applicants, the text of which was virtually identical, a standard template having been used. The text of the letter reads as follows: “You are hereby informed that you are an illegal immigrant by virtue of paragraph (k). section 1, Article 6 of the Aliens and Immigration law, Chapter 105, as amended until 2009, because you of illegal entry [sic] Consequently your temporary residence permit/migration permit has been revoked and I have proceeded with the issue of deportation orders and detention orders dated 11th June 2010 against you. You have the right to be represented before me, or before any other Authority of the Republic and express possible objections against your deportation and seek the services of an interpreter.” 189. The only differences was that some letters referred to illegal stay rather than illegal entry and that the letters issued earlier referred to 2 June 2010 as the date of issuance of the deportation and detention orders (see paragraph 181 above). 190. On the copy of the letters to the applicants provided by the Government, there is a handwritten signed note by a police officer stating that the letters were served on the applicants on 18 June 2010 but that they refused to receive and sign for them. The other letters had a similar note or stamp on them with the same date, stating that the person concerned had refused to sign for and/or receive the letter. In a letter dated 7 September 2010 the Government stated that the applicants had been served on 18 June 2010. In their subsequent observations the Government submitted, however, that this was the second attempt to serve the letters, the first attempt having been made on 11 June 2010, that is, the day of the arrest. 191. The applicants submitted that they had never refused to receive any kind of information in writing. They claimed that it had only been on 14 June 2010 that they had been informed orally that they would be deported to Syria on the same day but that the deportation and detention orders were not served on them on that date or subsequently. They submitted that they had eventually been informed by their lawyer, following the receipt of information submitted by the Government to the Court in the context of the application of Rule 39 of the Rules of Court, that deportation and detention orders had been issued against them. 192. From the documents submitted by the Government, it appears that at least another fourteen of the detainees were to be deported on 14 June 2010 (this figure is stated in documents submitted by the Government with no further details). C. Background information concerning the applicants’ request under Rule 39 of the Rules of Court 193. On Saturday, 12 June 2010, the applicants, along with twenty-nine other persons of Kurdish origin, submitted a Rule 39 request in order to prevent their imminent deportation to Syria. 194. On 14 June 2010 the President of the First Section decided to apply Rule 39, indicating to the respondent Government that the detainees should not be deported to Syria until the Court had had the opportunity to receive and examine all the documents pertaining to their claim. The parties were requested under Rule 54 § 2 (a) of the Rules of Court to submit information and documents concerning the asylum applications and the deportation. 195. On 21 September 2010 the President of the First Section reconsidered the application of Rule 39 in the light of information provided by the parties. He decided to lift Rule 39 in thirty-nine applications, including the present ones. He decided to maintain the interim measure in respect of five applications (for further details see M.A., cited above, § 58). Rule 39 was subsequently lifted with regard to three of the applications. 196. Following this decision the applicants who were not covered by Rule 39 were deported to Syria on various dates (see section D below). D. The applicants’ deportation 1. Application no. 41753/10 - H.S. v. Cyprus 197. The applicant was deported on 14 December 2010. 198. By a letter dated 27 December 2010 the applicant’s representative informed the Court that she had received information from the Kurdish Organization for the Defence of Human Rights and Public Freedoms in Syria (“DAD”) that the applicant had been arrested and detained in Adra prison in Damascus. 199. By a letter dated 24 July 2012 the applicant’s representative informed the Court that the applicant was living in the Kurdish area of Northern Iraq. 2. Application no. 41786/10 - A.T. v. Cyprus 200. The applicant was deported on 14 December 2010. 201. By a letter dated 27 December 2010 the applicant’s representative informed the Court that she had received information from DAD that the applicant had been arrested and detained in Adra prison in Damascus. 202. By a letter dated 24 July 2012 the applicant’s representative informed the Court that the applicant was still in Syria. 3. Application no. 41793/10 - F.T. v. Cyprus 203. The applicant was deported on 25 September 2010. 204. By a letter dated 27 December 2010 the applicant’s representative informed the Court that she had received information from DAD that the applicant upon his arrival in Syria had been requested by the authorities to present himself to the civil police on two different occasions. He had then been arrested in November 2010 and detained in Damascus on unknown grounds. 205. By a letter dated 5 December 2012 the applicant’s representative informed the Court that on 2 March 2011 the applicant had been sentenced to six months’ imprisonment. Following his release from prison he left Syria and went to Austria. 4. Application no. 41794/10 - A.M. v. Cyprus 206. The applicant was deported on 14 December 2010. 207. By a letter dated 27 December 2010 the applicant’s representative informed the Court that she had received information from DAD that upon his return to Syria the applicant had been arrested and detained in Adra prison in Damascus. 208. By a letter dated 5 December 2012 the applicant’s representative informed the Court that on 2 March 2011 the applicant had been sentenced to six months’ imprisonment. Following his release from prison he left Syria and went to Northern Iraq. 5. Application no. 41796/10 -M.S. v. Cyprus 209. The applicant was deported on 14 December 2010. 210. By a letter dated 27 December 2010 the applicant’s representative informed the Court that she had received information from DAD that upon his return to Syria the applicant had been arrested and detained in Adra prison in Damascus for two months. 211. By a letter dated 5 December 2012 the applicant’s representative informed the Court that the applicant, following his release from prison, had left Syria and gone to Northern Iraq. 6. Application no. 41799/10 -M.J. v. Cyprus 212. The applicant was deported on 25 September 2010. 213. By a letter dated 27 December 2010 the applicant’s representative informed the Court that she had received information from DAD that the applicant had been arrested upon his arrival at Damasucs airport. 214. By a letter dated 24 July 2012 the applicant’s representative informed the Court that the applicant had been detained in Damascus for two days during which he had been interrogated and had revealed that he had sought asylum in Cyprus. He was then taken by the police to Al-Hasakah where he was detained by the civil police for fifteen days. He was detained in a cell measuring 1.6 square meters and he was subjected to torture and ill-treatment. In particular, he was beaten on various parts of his body with wooden sticks. During his detention he was interrogated in relation to his affiliation to political parties. Subsequently he was transferred to Al-Hasakah Central Prison where he was detained for about a month and eight days. After that he was brought before a court in Qamishli without having been informed of the charges brought against him. He was questioned as to his affiliation to political parties. He was then taken back to Al-Hasakah Central Prison. He was subsequently transferred to the Devik Central Prison in his hometown where he was detained for a night and the next day he was taken to court again. He was released after his family bribed officials and he immediately went into hiding. He hid in friends’ and relatives houses and subsequently in a bakery in Damascus, until he could find a way to leave from Syria again. While in Damascus, his cousin informed him that he had received a letter requesting the applicant to present himself at the Aleppo Police. He was told by members of his family that he was still wanted from the military and civil police. After a failed attempt to leave Syria he managed to leave through Northern Iraq. He returned to Cyprus after travelling from Turkey and was in the process of submitting a new asylum application. The applicant stated that he was still wanted by the military police in Syria and that his family was still trying to find out the reason why he was a wanted person. 7. Application no. 41807/10 - A.Hu. v. Cyprus 215. The applicant was deported on 25 September 2010. 216. By a letter dated 5 December 2012 the applicant’s representative informed the Court that the applicant had been arrested and detained upon his arrival in Syria and that on 2 March 2011 he had been sentenced to six months’ imprisonment. Following his release, the applicant left Syria and went to Greece. 8. Application no. 41811/10 - H.H. v. Cyprus 217. The applicant was deported on 25 September 2010. 218. By a letter dated 27 December 2010 the applicant’s representative informed the Court that she had received information from DAD that the applicant upon his arrival in Syria had his passport retained by the authorities and had been asked to show up for checks at the civil police on different occasions. His passport was eventually returned to him. 219. By a letter dated 24 July 2012 the applicant’s representative informed the Court that the applicant was still in Syria. 9. Application no. 41812/10 -A.Ab. v. Cyprus 220. By a letter dated 27 December 2010 the applicant’s representative informed the Court that the applicant had agreed to return voluntarily to Syria on 24 September 2010. 221. By a letter dated 24 July 2012 the applicant’s representative informed the Court that the applicant was still in Syria. 10. Application no. 41815/10 - M.K. v. Cyprus 222. The applicant was deported on 25 September 2010. 223. By a letter dated 4 July 2012 the applicant’s representative informed the Court that the applicant had been arrested a week after he returned to Syria and was still detained in Aleppo prison. He had been accused of acting against the Syrian Government while he was in Cyprus and had been sentenced to imprisonment for one year and eight months. She stated in the letter that it was expected that he would be released soon. 11. Application no. 41820/10 - H.M. v. Cyprus 224. The applicant was deported on 25 September 2010. 225. By a letter dated 27 December 2010 the applicant’s representative informed the Court that she had received information from the DAD that when the applicant, upon his arrival in Syria, had his passport retained by the authorities and was asked to present himself to the political police on different occasions. After bribing the authorities 1000 United States dollars (USD) he was given back his passport. They authorities put a written warning in his passport that he was forbidden to travel to Greece. 226. By a letter dated 24 July 2012 the applicant’s representative informed the Court that the applicant was still in Syria. 12. Application no. 41824/10 - I.K. v. Cyprus 227. The applicant was deported on 25 September 2010. 228. By a letter dated 12 December 2012 the applicant’s representative informed the Court that the applicant had to serve compulsory military service once he returned to Syria. He fled, however, to Northern Iraq, before completing it. 13. Application no. 41919/10 - M.Y. v. Cyprus 229. The applicant returned to Syria voluntarily on 1 October 2010. No information has been given as to whether the applicant’s wife and child were eventually deported with him as planned by the authorities. 230. By a letter dated 5 December 2012 the applicant’s representative informed the Court that according to information she had received from members of the Kurdish community in Cyprus the applicant was living in Aleppo in Syria. 14. Application no. 41921/10 - H.Sw. v. Cyprus 231. The applicant was deported on 14 December 2010. No information has been given as to whether the applicant’s wife and child were also deported. 232. By a letter dated 27 December 2010 the applicant’s representative informed the Court that the applicant’s representative informed the Court that she had received information from DAD that the applicant upon his arrival in Syria had been arrested and detained in Adra prison in Damascus. 233. By a letter dated 24 July 2012 the applicant’s representative informed the Court that the applicant had been detained for six months, during which he had been ill-treated. After his release he remained in Syria. II. RELEVANT DOMESTIC LAW AND PRACTICE 234. The relevant domestic law and practice, are set out in detail in M.A., (cited above, §§ 61-93). 235. In addition, the following provisions of the Refugee Law (Law 6 (I)/2000), as applicable at the material time, are relevant for the purposes of the present applications. 236. Pursuant to section 16A of the Refugee Law (Amending Law 9(I)/2004) as applicable at the time (further amendments were subsequently made to the Refugee Law, including section 16A, by Amending Law 122(I)/2009), the Head of the Asylum Service, by a decision recorded in the file, closes the file and discontinues the procedure of examination of an asylum application where, inter alia, an asylum seeker has not complied with the obligations emanating from section 8 of the same law and the asylum seeker has not responded to letters addressed to him by the competent officer of the service and, following adequate investigation, it is established that the applicant had received the said letters (sections 16A (1) (a) and (c) respectively. Section 8 (3)(a) of the same law provides that an asylum seeker who has been granted a temporary residence permit is under an obligation to inform the local Aliens and Immigration Police Branch, within three days, of any change of address. The departments concerned must then immediately inform the Asylum Service and the Director of the Civil Registry and Migration Department of the change. In case of non-compliance with this section, the provisions of Section 16A apply. 237. Furthermore, section 28 F (2) of the Refugee Law provides that an administrative recourse before the Reviewing Authority shall be lodged within twenty working days from the date an applicant is notified of the asylum decision or obtains knowledge of it. III. INTERNATIONAL TEXTS AND DOCUMENTS 238. The relevant international texts and documents, are set out in M.A., cited above, §§ 94-105. 239. In addition, the following material concerning Syria is relevant for the purposes of the present applications. 240. There are a number of reports concerning the human rights situation in Syria at the material time, including on the situation of the Kurdish minority. These include, inter alia, the United Kingdom Border Agency’s Country of Origin Information Report on Syria of 3 September 2010; the report by Human Rights Watch, “A Wasted Decade: Human Rights in Syria during Basharal-Asad’s First Ten Years in Power” published on 16 July 2010; the report by Landinfo published on 16 June 2010 “Kurds in Syria: Groups at risk and reactions against political activists”; the report by the Austrian Red Cross and the Danish Immigration Service on human rights issues concerning Kurds in Syria published in May 2010; the report of the Information and Refugee Board of Canada, 1 May 2008, “the Syrian government’s attitude towards, and its treatment of, citizens who have made refugee or asylum claims, particularly when the claim was made in Canada or the United States” and the report by the Danish Immigration Service published in April 2007 “Syria: Kurds -Honour killings and illegal departure”. (The applicants also submitted, amongst other documents, the paper by Chatham House of January 2006 “The Syrian Kurds: A People Discovered”; a report by the Canadian section of Amnesty International in January 2004, dealing with the risk on return to Syria and the report by Human Rights Watch: “Syria: the Silenced Kurds”, dated 1 October 1996). 241. Extracts of some of the above reports are set out below: A. The situation of the Kurdish minority 242. In its Country of Origin Information Report on Syria of 3 September 2010, the United Kingdom Border Agency noted, inter alia, the following (footnotes omitted): “3. HISTORY: 1946–2009 ... THE REIGN OF BASHAR AL-ASAD: 2000 TO THE PRESENT ... Increased opposition and subsequent clampdown: 2003–2007 ... 3.13 The May 2010 DIS and ACCORD/Austrian Red Cross report, Human rights issues concerning Kurds in Syria, provided brief details of the March 200Kurdish riots: “On March 12, 2004 at a football match in Qamishli, a town in the Jazira region, tensions rose between Kurdish fans of the local team and Arab supporters of a visiting team from the city of Deir al‐Zor, and fights eventually erupted between members of the opposing supporter groups. Security forces responded by firing live bullets which resulted in death of at least seven Kurds. The next day, members of the security forces fired at a Kurdish funeral procession and demonstration, causing a number of additional Kurdish fatalities and injuries. Two days of violent protests and riots in Qamishli and other Kurdish towns in the north and northeast, including al‐Qahtaniya, al‐Malkiya, and ‘Amuda followed. The army moved into Qamishli and other major Kurdish towns in northern Syria, and a week later calm was restored. At least 36 people were killed, 160 injured, and more than 2,000 detained during the unrest. Most of the detainees were released, including 312 detainees who were released under an amnesty announced by President Bashar al‐Asad on March 30, 2005. ... 20. ETHNIC GROUPS “20.01 The US Department of State 2009 Country Reports on Human Rights Practices (USSD Report 2009), released 11 March 2010 stated, “The government generally permitted national and ethnic minorities to conduct traditional, religious, and cultural activities; the government’s actions toward the Kurdish minority remained a significant exception.” Further: “During the year [2009], according to the IWPR [Institute for War and Peace Reporting], authorities began enforcing a years-old ruling that requires at least 60 percent of the words on signs in shops and restaurants to be in Arabic. Officials enforcing the ruling reportedly sent patrols into commercial districts to threaten ... KURDS ... 20.05 The USSD Report 2009 stated, “Although the government contended there was no discrimination against the Kurdish population, it placed limits on the use and teaching of the Kurdish language. It also restricted the publication of books and other materials in Kurdish, Kurdish cultural expression, and at times the celebration of Kurdish festivals.” 20.06 The Foreign and Commonwealth Office (FCO) Annual Report on Human Rights 2009, reported: “Syria’s estimated 1.7 million Kurds continue to suffer from discrimination, lack of political representation, and tight restrictions on social and cultural expression. In particular, there are a number of measures in place repressing Kurdish identity, through restricting the use of the Kurdish language in public, in schools and in the workplace. Kurdish-language publications are banned and celebrations of Kurdish festivities, such as Nowruz, the traditional Kurdish New Year, are prohibited. “In addition, as many as 300,000 Kurds continue to be denied recognised citizenship. Presidential Decree 49, which was passed in October 2008, still remains in force. This questions the rights of Syrian citizens to hold property rights in the border areas of the country and particularly affects the Kurdish population. Kurds in Syria claim that it effectively prohibits them from selling, buying or inheriting land.” ... 20.07 Amnesty International’s Annual Report 2010 stated, “Kurds, who comprise up to 10 per cent of the population and reside mostly in the north-east, continued to face identity-based discrimination, including restrictions on use of their language and culture. Thousands were effectively stateless and so denied equitable access to social and economic rights.” Human Rights Watch’s (HRW) World Report 2010, released January 2010 also reported that “Kurds, Syria’s largest non-Arab ethnic minority, remain subject to systematic discrimination, including the arbitrary denial of citizenship to an estimated 300,000 Syria-born Kurds. Authorities suppress expressions of Kurdish identity, and prohibit the teaching of Kurdish in schools.” 20.08 The May 2010 DIS and ACCORD/Austrian Red Cross fact finding mission report, Human rights issues concerning Kurds in Syria reported, “According to representatives of the UN Development Programme (UNDP), Syria, there is no discrimination of ethnic groups, including Kurds, concerning their access to health or education since the fees for these services are very small and nobody is required to present ID in order to access the services.” The report went into more detail concerning the ability of stateless Kurds to access public services..[see Stateless Kurds below]. ... 20.09 Freedom House’s Freedom in the World 2010, stated: “The Kurdish minority faces severe restrictions on cultural and linguistic expression. The 2001 press law requires that owners and top editors of print publications be Arabs. ... In 2009, the government made it more difficult to hire noncitizens, resulting in the dismissal of many Kurds. While one demonstration to demand more rights for the Kurdish community was allowed to take place in northern Syria, security forces stopped four demonstrations in February and March, detaining dozens of people and referring some to the judiciary for prosecution. Intelligence services generally monitor Kurdish leaders closely, sometimes excluding them and their families from public-sector employment. At least 15 such leaders are barred from leaving Syria.” 20.10 The Kurdish Human Rights Project (KHRP) Impact Report 2009 noted, “In 2009, the arrest and incommunicado detention of Kurds peacefully attempting to promote Kurdish culture, was an ongoing concern. So too were the continued violations of the rights to free expression and association against political activists.” 20.11 The USSD Report 2009 stated, “Security services arrested hundreds of Kurdish citizens during the year [2009], and the SSSC [Supreme State Security Court] prosecuted them, in some cases on charges of seeking to annex part of Syria to another country.” The report went on to relate over a dozen specific instances when the Syrian authorities detained, arrested and/or prosecuted Kurds, some but not all known political activists, during 2009. The report also noted that the reasons for arrest and whereabouts of many of these Kurds remained unknown at the end of 2009. 20.12 The FCO Annual Report on Human Rights 2009 related brief details of the arrest and abuse of Kurds during 2009 for political reasons, or ostensibly for expression of their cultural identity at events, such as the celebration of the Kurdish New Year (Newroz). 20.13 Sources consulted for the May 2010 DIS and ACCORD/Austrian Red Cross fact finding mission report, Human rights issues concerning Kurds in Syria, noted the difficulty in separating Kurdish cultural and political activities in terms of the perception of the Syrian authorities: “... a Western diplomatic source stated that the government and state security services undoubtedly are quite sensitive to any cultural or political sign of Kurdish nationalism which could be perceived by the state as a threat to the national integrity, or any form of resistance to the state authorities. That is the reason why the government reacts harshly to Kurdish cultural activities. “[The same source] went on to explain that Kurdish cultural activities are generally perceived as political by the government, and it is therefore difficult to distinguish between political and non‐political activities. When Kurdish cultural activities are banned by the authorities, they also politicise ordinary people participating in those activities. Participants in Kurdish cultural activities are therefore at risk of being criminalized and exposed to persecution by the authorities.” ... Stateless Kurds ... 20.18 The USSD Report 2009 stated: “Following the 1962 census, approximately 120,000 Syrian Kurds lost their citizenship. As a result, those individuals and their descendants remain severely disadvantaged in terms of social and economic opportunities and in receiving government services including health and education, as well as employment open only to citizens. Stateless Kurds had limited access to university education, and lack of citizenship or identity documents restricted their travel to and from the country. The UNHCR and Refugees International estimated there were approximately 300,000 stateless Kurds. “Despite the president’s repeated promises to resolve the matter of stateless Kurds, most recently in his 2007 inauguration speech, there was no progress during the year [2009].” 20.19 The same report also noted, “In general, ... noncitizens, including stateless Kurds, can send their children to school and universities. Stateless Kurds are ineligible to receive a degree documenting their academic achievement.” 20.20 The May 2010 DIS and ACCORD/Austrian Red Cross fact finding mission report, Human rights issues concerning Kurds in Syria, stated: “An international organisation pointed out that stateless Kurds are a very vulnerable group in Syria. Stateless Kurds are excluded from owning land, access to basic public health care services and having any public jobs. In practice though, stateless persons have access to the private health care system or to the public health care system if they have the right personal connections and sufficient financial means to pay the necessary bribes.” 20.21 Reporting further on access to health care, the report noted that UNDP representatives had remarked “... that stateless Kurds have unconditional access to education and health, as they are not required to show any ID either.” Conversely, other sources consulted by the fact finding mission indicated that stateless persons were not entitled to or were unable to access any, or all but basic free, health care. 20.22 On education, various sources consulted by the DIS and ACCORD/Austrian Red Cross reported that, while primary education was free and compulsory for all, secondary and higher education was not. Also, an international organisation “...stressed that most stateless Kurds face certain socioeconomic difficulties which makes them less likely to enrol their children in school. Furthermore, stateless Kurds have no ID cards and stateless children are not issued school certificates or exam papers.” Section 10 of the fact finding mission report recounted the differing views concerning the extent of illiteracy among persons who have finished primary school. 20.23 A diplomatic source consulted for the May 2010 DIS and ACCORD/Austrian Red Cross fact finding mission report, Human rights issues concerning Kurds in Syria, noted, “Most stateless Kurds generally do not have the economic means to travel to Europe in order to apply for asylum.” Also, “A representative of an international relief organisation confirmed that due to poverty it is more difficult for the stateless Kurds to find the means to leave the country compared to other Syrian Kurds.” The same report also noted, on internal movement, that “Stateless persons are restricted in their movement in the country as they cannot check in hotels without permission by the security services.” 20.24 Underlining the economic disadvantages faced by stateless Kurds in Syria, the May 2010 DIS and ACCORD/Austrian Red Cross fact finding mission report, Human rights issues concerning Kurds in Syria, stated: “According to a prominent Kurdish political leader stateless persons are subjected to various forms of discrimination. Following a new law, it is now prohibited to employ persons who have no ID card in the private sector as has been the case in the public sector. This means that if a stateless Kurd from al‐Hassakeh goes to Aleppo, Damascus or other places in Syria, he cannot get employment in restaurants, hotels etc.” Ajanibs (‘foreigners’) and Maktoumeen (‘concealed’) 20.25 Chatham House’s January 2006 paper, The Syrian Kurds: A People Discovered, noted that Ajanibs were Kurds who took part in the 1962 census but were stripped of their nationality whilst Maktoumeen were Kurds who did not take part in the census or were born of at least one Ajanib parent. 20.26 The April 2009 United States Institute for Peace (USIP) special report, The Kurds in Syria – Fueling Separatist Movements in the Region?, stated: “Since 1962, the Syrian state has divided Kurds in Syria into three major demographic categories: Syrian Kurds, foreign Kurds [Ajanib], and ‘concealed’ Kurds [Maktoumeen]. Syrian Kurds have retained their Syrian nationality. Foreign Kurds were stripped of citizenship and registered in official archives as foreigners; in 2008, there were about 200,000 of them. Concealed Kurds are denationalized Kurds who have not been registered in official records at all and whom Syrian authorities characterize as concealed. Nearly 80,000 people belong to this category. Among the concealed Kurds are persons whose fathers are classified as foreigners and whose mothers are citizens, persons whose fathers are aliens and whose mothers are classified as concealed, and persons whose parents are both concealed. In addition, there are about 280,000 undocumented Kurds who reside in Syria but have no citizenship, according to Kurdish sources. No government statistics are available on this group.” ... 20.27 Refugee International’s January 2006 paper Buried Alive: Stateless Kurds in Syria reported that Ajanib’s and Maktoumeen were issued different identity documents to Syrian citizens: “Most denationalized Kurds and their descendents are labeled Ajanib (‘foreigners’) and issued red identity cards by the Ministry of Interior, stating they are not Syrian nationals and are not entitled to travel. Even some children listed on red cards are listed under the statement, ‘His name was not in the survey of 1962,’ an irony given that they were born long after the date of the census. Replacing such documents or obtaining them for the first time poses particular problems, as they often involve paying large bribes of up to SY P 3,000-5,000 (US $60-100) and approaching several branches of security for authorization over the course of months or even years. “A significant number of stateless Kurds in Syria do not possess even this identity document and are effectively invisible. Maktoumeen now number between 75,000 and 100,000. At one time, they were able to obtain certified ‘white papers’ recognizing their identity from their local mayor’s office (a Mukhtar or traditional village head), although these papers were not recognized legally by the government. However, this practice has now ended under special orders from the Syrian government.” 20.28 The USIP report of April 2009 also stated: “Kurds classified as foreigners carry red identity cards that permit them to be recorded as aliens in official records. They cannot, however, obtain a passport or leave the country. Concealed Kurds carry only a yellow definition certificate, or residence bond, issued by a local mukhtar (chieftain) and used purely to identify the holders whenever authorities found it necessary to do so. Though authorities issue the certificates, official Syrian institutions do not accept them, so for all intents and purposes the holders of yellow documents have no official status in Syria at all.” ... 29. Citizenship and nationality ... Stateless Kurds 29.04 The US Department of State 2009 Country Reports on Human Rights Practices (USSD Report 2009) stated: “Following the 1962 census, approximately 120,000 Syrian Kurds lost their citizenship. As a result, those individuals and their descendants remain severely disadvantaged in terms of social and economic opportunities and in receiving government services including health and education, as well as employment open only to citizens. Stateless Kurds had limited access to university education, and lack of citizenship or identity documents restricted their travel to and from the country. The UNHCR and Refugees International estimated there were approximately 300,000 stateless Kurds. “Despite the president’s repeated promises to resolve the matter of stateless Kurds, most recently in his 2007 inauguration speech, there was no progress during the year [2009].” 243. Human Rights Watch, in its report of 16 July 2010, “A Wasted Decade: Human Rights in Syria during Basharal-Asad’s First Ten Years in Power” stated the following: “... IV. Repression of Kurds Kurds are the largest non-Arab ethnic minority in Syria; estimated at approximately 1.7 million, they make up roughly 10 percent of Syria’s population. Since the 1950s, successive Syrian governments have pursued a policy of repressing Kurdish identity because they perceived it to be a threat to the unity of an Arab Syria. Under Bashar al-Asad, Syrian authorities have continued to suppress the political and cultural rights of the Kurdish minority, including banning the teaching of Kurdish in schools and regularly disrupting gatherings to celebrate Kurdish festivals such as Nowruz (the Kurdish New Year). Harassment of Syrian Kurds increased further after they held large-scale demonstrations, some violent, throughout northern Syria in March 2004 to voice long-simmering grievances. Syrian authorities reacted to the protests with lethal force, killing at least 36 people, injuring over 160, and detaining more than 2,000, amidst widespread reports of torture and ill-treatment of detainees. Most detainees were eventually released, including 312 who were freed under an amnesty announced by al-Asad on March 30, 2005. However, since then, the Syrian government has maintained a policy of banning Kurdish political and cultural gatherings. Human Rights Watch has documented the repression of at least 14 Kurdish political and cultural gatherings since 2005. The security forces also have detained a number of leading Kurdish political activists and referred them to military courts or the SSSC for prosecution under charges of “inciting strife” or “weakening national sentiment. In addition, large numbers of Kurds are stateless and consequently face a range of difficulties, from getting jobs and registering weddings to obtaining state services. In 1962, an exceptional census stripped some 120,000 Syrian Kurds—20 percent of the Syrian Kurdish population—of their Syrian citizenship. By many accounts, the special census was carried out in an arbitrary manner. Brothers from the same family, born in the same Syrian village, were classified differently. Fathers became foreigners while their sons remained citizens. The number of stateless Kurds grew with time as descendants of those who lost citizenship in 1962 multiplied; as a result, their number is now estimated at 300,000. Al-Asad has repeatedly promised Kurdish leaders a solution to the plight of the stateless Kurds, but a decade later, they are still waiting. He first promised to tackle the issue when he visited the largely Kurdish-populated region of al-Hasaka on August 18, 2002, and met with a number of Kurdish leaders. In his second inaugural speech on July 17, 2007, he mentioned the promise he made in 2002, but noted that political developments had prevented progress in this area: I visited al-Hasaka governorate in August 2002 and met representatives of the community there. All of them without exception talked about this issue [the 1962 census]. I told them, “we have no problem, we will start working on it.” That was the time when the United States was preparing to invade Iraq.... We started moving slowly, the Iraq war happened, and there were different circumstances which stopped many things concerning internal reform. In 2004, the riots in al-Qamishli governorate happened, and we did not exactly know the background of the riots, because some people took advantage of the events for non-patriotic purposes.... We restarted the process last year on the government’s initiative since the events have gone and it was shown that there were no non-patriotic implications. Later in his speech, al-Asad referred to a draft law that would solve the problem for some stateless Kurds, namely those who became stateless even though other members of their family obtained citizenship. He concluded by saying that “the consultations continue...and when we are done with those...the law is ready.” Three years later, and despite the fact that the political justifications for the delays have long ceased to exist, there is no new law, and no steps have been taken to address Kurdish grievances. 244. Following a fact-finding mission to Damascus in January 2007 the Danish immigration Service published a report on Syria: Kurds, Honour-killings and illegal departure in April 2007 “3.4.2.3 Today: Prosecution and Persecution An Embassy in Damascus told the delegation that those Kurdish activists who engage in activities such as distribution of political leaflets, celebration of the Kurdish New Year/ Newrouz or participation in demonstrations risk being arrested. A Kurdish representative told the delegation that a member of a Kurdish political party who is discovered as engaging in political activity, for instance demonstrations, risks arrest. Suspicion of political activism may lead to arrest and political activists are regularly arrested in North-East Syria. A lawyer and a local observer said that Kurdish political activists are still regularly arrested in Syria. A Human Rights Organization observed that Kurds who participated in the demonstrations in Qamishli in March 2004 and who engaged in political activity prior to these events may risk arrest. A Human Rights Organization, an Embassy in Damascus and several Kurdish sources pointed to the recent arrest in Aleppo of a leading member of the Kurdish Yekiti Party. A Kurdish representative mentioned the arrest in December 2006 of a Kurd who had published a collection of poetry in the Kurdish language. A lawyer said that in 2006 for instance some Kurds were arrested on suspicion of attempts to conduct a census of the Kurdish population in Syria. The consulted Kurdish sources, an Embassy in Damascus and a Human Rights Organization stressed in unison that there is no pattern in the arrests of Kurdish activists in Syria. According to the sources it is arbitrary which activists are arrested and which are not arrested. An Embassy in Damascus stressed that it is very difficult to say which political activists will be arrested and which will not be arrested. According to the source that is the big question. A Kurdish representative said that traditionally it is very difficult to predict what sort of activity will lead to arrest. Syria: Kurds, Honour-killings and Illegal Departure 14. A Kurdish representative observed that the authorities probably have very specific reason for arresting individual Kurds. However, it is not clear why some are arrested and others are not. According to the source, there are no known criteria behind the arrests of Kurds. A Kurdish representative said that the reaction of the authorities to political activism is highly unpredictable. For instance according to the source sometimes the celebration of Newrouz is tolerated, at other times participants are arrested. A Kurdish representative and an Embassy in Damascus pointed out that the arrests of Kurds are deliberately arbitrary in order to spread a sense of general insecurity. An Embassy in Damascus observed that the Syrian regime is built on inspiring such insecurity. A Kurdish representative added that probably there is an unofficial suspension of arrests against Kurds in place at the moment in order not to attract negative attention to the Syrian regime. A Kurdish representative pointed out that the Syrian authorities have a “one-time-policy” meaning that political activists who have been arrested and released will be under surveillance. Such persons are often forced to cooperate with the security service. A Kurdish representative told the delegation that arrested persons who are released often are obliged to report regularly to the security service. Such persons will normally be under surveillance by the security service. They risk arrest if they do not cooperate with the security service. A lawyer said that the most common reason for arresting Kurdish activists are membership of an illegal party, political activity and possession of printed materials in the Kurdish language. A Human Rights Organization, said that Kurds in Syria are not subject to persecution due to their ethnicity alone. Most Kurds in Syria do not risk persecution since they have no political activities. An Embassy in Damascus pointed out that Kurdish political activists do not face a greater risk of arrest than other people considered opponents of the regime. A Human Rights Organization and shared this point of view. A lawyer said that Kurdish activists are not oppressed to a larger degree than political activists of Arab or other origins. A Human Rights Organization observed that there is much exaggeration about the number of injustices against Syrian Kurds. According to the source, Kurdish asylum seekers from Syria exaggerate their problems in order to obtain asylum. A Kurdish representative said that some asylum seekers may abuse the situation in Syria in order to obtain asylum abroad.” B. The treatment of returned failed asylum seekers 245. In its Country of Origin Information Report on Syria of 3 September 2010, the United Kingdom Border Agency noted, inter alia, the following (footnotes omitted): “31. Exit and return ... 31.11 The Kurdish Human Rights Project’s (KHRP) June 2010 Submission to the Office of the United Nations High Commissioner for Human Rights, Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, reported “... some Syrian nationals who have been returned to the country after living abroad have been arbitrarily detained on arrival or shortly after their return. To seek asylum abroad is perceived as manifestation of opposition to the Syrian government, so returned asylum seekers face the likelihood of arrest.” 31.12 In its Impact Report 2009, the KHRP remarked that it was: “... increasingly concerned by the arbitrary detention of Kurds who were forcibly returned to Syria. In September [2009], Khaled Kenjo was held incommunicado and charged with ‘spreading ‘false’ news abroad’ under Article 287 of the Syrian Penal code after his failed appeal for political asylum in Germany. Similarly, Berzani Karro, forcibly returned from Cyprus to Syria in June, was arrested at Damascus Airport, held incommunicado and reportedly tortured.” 31.13 A June 2010 release by the International Support Kurds in Syria Association – SKS, Call to Cyprus Government to stop deportation of Kurds to Syria, noted: “On 11 June 2010, twenty-seven people including women and children, were forcibly removed by authorities in Cyprus, back to Damascus airport. They had been on hunger strike along with many others for some time in Cyprus. Others remain in Cyprus. On return to Damascus, they were each interviewed by the authorities, and were issued with a summons to report to intelligence security a week later.” 31.14 In the May 2010 DIS and ACCORD/Austrian Red Cross fact‑finding mission report a number of sources agreed that failed asylum seekers and persons who had left Syria illegally would generally face detention and investigation upon return. “[A Western diplomatic source] mentioned that the computer system employed at border controls to screen persons upon their entry into Syria works well. Border guards check whether the name of someone who enters Syria can be found on one of the wanted persons lists of the security services. These lists contain information from the various security services’ offices from all parts of the country, including from Qamishli. Immigration authorities are thus able to see whether a returnee has a file with the security services somewhere, and can subsequently inquire about the file’s details with the authorities from these cities or municipalities. It was added that there is no single list of wanted persons but that every security agency maintains its own list. If one of the security services has a file concerning a returnee, he or she would be transferred from the immigration services’ detention facilities to the security agency’s detention centre. “A[nother] Western diplomatic source stated that if somebody is called in for interrogation by the security services and the person does not show up, he would be arrested, and if his absence is due to the fact that he has left the country, he would be put on the list of wanted persons. Upon return to Syria, such a person would be arrested and interrogated by the security service. However, it was emphasized that it is very hard to say what exactly would happen in such cases.” 246. The Information and Refugee Board of Canada, in its report of 1 May 2008, “the Syrian government’s attitude towards, and its treatment of, citizens who have made refugee or asylum claims, particularly when the claim was made in Canada or the United States”, cites the Office of the United Nations High Commissioner for Refugees (UNHCR) Representation in Canada as stating on 14 April 2008 as follows: “According to information available to the UNHCR Representation in Damascus, and confirmed by a number of European Embassies in Syria, the mere unsuccessful application for asylum abroad will not lead per se to prosecution or other forms of persecution in Syria. 1. However, persons who left Syria illegally may have to face prosecution because of illegal departure and this is in many cases most probable. The Syrian authorities have indicated to different embassies that the mere illegal departure is not considered as a serious crime. This does not apply if there should be any person who is suspected on matters related to terrorism. The same is the case if there is any indication that the person was involved in trafficking activities. 2. Persons who have engaged abroad in political activities (e.g. demonstrations in front of Syrian Embassies against the Syrian Government) may indeed have to face prosecution upon return. ... . 4. The procedure upon return of the unsuccessful asylum-seeker to Syria is the following: a. The person has to report to the Immigration Department in order to apply for new documentation. b. The procedure also comprises a visit to the Political Security Branch by which the person will be interrogated regarding the earlier motives and reasons for the illegal departure from Syria. Should this arise, it will be very difficult for the returnee to keep the information on a potential asylum application abroad confidential. Inquiries on the reasons for an asylum application abroad may follow. c. Should there be no problem, then the person will obtain, in about three months, new identity documents. d. Should the authorities come to the conclusion that the person may be considered as an opponent against the regime, the consequences may be very serious. UNHCR is not aware of the fate of such persons. Human Rights Reports on the conditions and treatment of detainees in different types of detention facilities, in particular of those facilities belonging to different Security Branches, speak for themselves. The UNHCR also stated that the following information that was provided to the Research Directorate on 28 August 2003 was still accurate: The Syrian law on departure of Syrian nationals, Law no. 42 of 31 December 1975 remains in force and has not been amended. Available information indicates that the practical implementation of this law has not changed since [April 1995]. Any Syrian national who departs the country illegally faces judicial consequences that may, in principle, result in up to three months imprisonment. Generally speaking, one may expect the same treatment for unsuccessful Syrian asylum-seekers who have departed the country illegally. ... [T]he response of the Syrian authorities is very much dependent upon the nature of the departure and the profile and background of the individual. If it becomes known that they have applied for asylum, the consequences may be severe. However, if the individual’s claim for asylum remains confidential then s/he may avoid further complications with the local law enforcement agencies and judicial authorities. Of course, the maintenance of confidentiality will depend, in part, on the manner in which the individual is returned to the country of origin. Refugees International, a Washington-based organization that provides advice on displacement issues to governments and non-governmental organizations (NGOs) (n.d.), reports on the case of a man who was deported to Syria from Germany after his asylum application was refused (Refugees International 13 Feb. 2006). Upon his return, he "was sentenced to two years in prison by the high security court and severely tortured" (ibid.). Refugees International also indicates that "[t]he average length of detention for seeking political asylum abroad was reported to be three to six months" (ibid.). According to the United States (US) Department of State Country Reports on Human Rights Practices for 2007, "[p]ersons who have unsuccessfully sought asylum in other countries and who have past connections with the MB [Muslim Brotherhood] have been prosecuted upon their return to Syria" (11 Mar. 2008, Sec 2.d). According to Amnesty International (AI), two men, Abdul Rahman Musa and Usama Sayes were detained by the Syrian authorities after having failed to secure asylum from the United Kingdom (UK) and the United States (US) respectively (13 May 2005). A 2007 AI report indicates that, in June 2005, both Sayes and Musa were sentenced to death but that their punishment was decreased to a twelve-year prison sentence (see also Independent on Sunday 2 July 2006). The Official from the SHRC provided the following information on Musa and Sayes: Mr Abdul Rahman Musa who was deported to Syria from the USA after applying for asylum was charged with distributing false and fabricated information and undermining the prestige of the state. The same was applied to other deportees including Mr. Usama Sayes who was deported from the UK in 2005 [and] whose sentence was increased [to] two years because he was charged [with] distributing false information and undermining the state’s prestige because he applied [for] asylum in the UK. (SHRC 4 Apr. 2008)”. 247. After a fact-finding mission to Syria, Lebanon and the Kurdistan Region of Iraq, the Austrian Red Cross and the Danish Immigration Service published a report on human rights issues concerning Kurds in Syria in May 2010. The relevant part of the report reads as follows: “8. Treatment upon return and lists of wanted persons Nadim Houry, senior researcher, Human Rights Watch, Beirut, stated that returned failed asylum seekers are most likely detained upon return to Syria, although not necessarily for a long period of time. It was added that there is a high likelihood of ill‐treatment during their initial detention which can amount to torture if the person is expected to know something of interest to the security service. What will happen to a returnee depends on what is in the file (if there is one) or on whether the security services believe what the returnee tells. Usually, the authorities release returnees after making a file on them and probably refer them to an investigative judge. Upon release persons are very commonly required to report regularly. A Western diplomatic source stated that failed asylum seekers would be detained upon return to Syria simply because of the fact that he or she has been abroad. The person would be subjected to interrogation by the security services. However, it is unclear how the person would be treated during this detention that in some cases could last for weeks or even longer. A prominent Kurdish political leader emphasized that anyone deported from a foreign country to Syria would be requested to collaborate with the security services by reporting about his community, or he would be imprisoned. According to representatives of a Kurdish human rights organisation persons who have left Syria illegally are generally arrested upon return to Syria and investigated to establish whether or not they are wanted by the security services. Nadim Houry, HRW, added that the immigration service is not necessarily the first instance which returned failed asylum seekers meet at the border, and that they can as well be detained and interrogated by the security services immediately upon arrival. The security service is generally present at the airport. It could happen that the immigration service at the airport contacts the security service in advance informing them about the returnee so that the security service is already waiting for the returnee at the airport. Regarding the situation for returned failed asylum seekers, Nadim Houry, HRW, stated that every returned failed asylum seeker will automatically be detained and interrogated. He referred to a recently documented case of a Kurdish musician who had left the country in the aftermath of the uprising in March 2004 and asked for asylum in Norway. He was returned from Norway in July 2008 accompanied by two Norwegian police officers. The returnee informed HRW that he had first been detained by the Immigration Service in the airport and had then been referred to the political security service where he was subjected to severe ill‐treatment, including Falaka and beatings on the back, hands and feet. After one week his case was referred to an investigative judge who released him and obliged him to report regularly to the political security service branch. However, before his name showed up in the list of wanted persons at the border he fled to Lebanon. According to a Western diplomatic source persons who have left Syria illegally have been, upon return, subject to investigation by the immigration authorities. This can include detention in the immigration service’s own detention centres, which the source considered to be routine if it does not exceed two weeks. It was stressed that in almost all cases known to the source, the detainees have then been released. According to the source its country has repatriated four Syrian citizens in the past three months, out of which three were first detained but later released, while one person was charged with spreading false information abroad as part of his political activities, although the person’s lawyer argued in court that his client had not been politically active at all. The source mentioned that the computer system employed at border controls to screen persons upon their entry into Syria works well. Border guards check whether the name of someone who enters Syria can be found on one of the wanted persons lists of the security services. These lists contain information from the various security services’ offices from all parts of the country, including from Qamishli. Immigration authorities are thus able to see whether a returnee has a file with the security services somewhere, and can subsequently inquire about the file’s details with the authorities from these cities or municipalities. It was added that there is no single list of wanted persons but that every security agency maintains its own list. If one of the security services has a file concerning a returnee, he or she would be transferred from the immigration services’ detention facilities to the security agency’s detention centre. A Western diplomatic source stated that if somebody is called in for interrogation by the security services and the person does not show up, he would be arrested, and if his absence is due to the fact that he has left the country, he would be put on the list of wanted persons. Upon return to Syria, such a person would be arrested and interrogated by the security service. However, it was emphasized that it is very hard to say what exactly would happen in such cases. A Western diplomatic source stated that amnesties are not reliable in Syria stressing that persons who are on the list of wanted persons remain targeted even after an amnesty.” THE LAW I. JOINDER 248. Given their similar factual and legal background, the Court decides that the fourteen applications should be joined pursuant to Rule 42 § 1 of the Rules of Court. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 13 249. Relying on Article 3 of the Convention, the applicants complained about their deportation to Syria. They further complained, under Article 13 in conjunction with Article 3, that they did not have an effective domestic remedy against their intended deportation. These provisions read as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 250. With regard to their complaint under Article 3, apart from their individual circumstances (see paragraphs 9, 17, 29, 45, 58, 65, 78, 90, 99, 112, 123, 136, 149 and 162 above), the applicants invoked a number of common reasons why they faced a risk of ill-treatment or torture in Syria. First of all they raised the general situation for the Kurdish ethnic minority in Syria. In particular, they claimed that they were at risk of persecution by reason of their Kurdish origin, as Kurds in Syria were members of a generally oppressed minority whose human rights were systematically violated. The applicants relied on a number of reports concerning this matter. They relied, inter alia, on: Human Rights Watch: “A Wasted Decade: Human Rights in Syria during Bashar al-Asad’s First Ten Years in Power” July 2010 and Human Rights Watch: “Syria: the Silenced Kurds”, 1 October 1996 (see paragraphs 240 and 243 above). Two of the applicants, A.M. and M.S., also pointed out that they were statelessness Syrian Kurds (Ajanib). Relying, in particular, on Chatham House’s January 2006 paper, “The Syrian Kurds: A People Discovered”, they noted that as Ajanib they were not allowed passports, could not vote or own property and were forbidden from working in the public sector and in many professions. They were not entitled to the same education or health care as Syrian citizens, and their lack of the standard Syrian identity card meant that they could not receive state benefits, travel internally or stay in a hotel. 251. Secondly, the applicants claimed that as failed asylum seekers, some of whom had also left the country illegally, they ran the risk of being imprisoned upon return to Syria. They referred to the Syrian penal code and a report by the Canadian section of Amnesty International in January 2004, dealing with the risk on return to Syria (see paragraph 240 above). 252. Lastly, the applicants relied on their connections with the Yekiti party or other political activities. A number of them submitted a “to whom it may concern” letter in their name dated 4 July 2010 by the “Kurdistan Yekiti Party (Syria) European Organisation” stating that they were members of the party in Syria and that if returned they would face persecution. In addition, F.T. submitted a list of persons involved in the Yekiti party in Cyprus in which he was included as being in charge of “information affairs” and A.Ab., submitted black and white photocopies of photographs of two demonstrations, two celebrations, a conference and a collection of signatures in Cyprus in 2009 and 2010. A. M. also submitted an attestation from the CDK in Cyprus (see paragraph 56 above). The applicants also claimed in this connection that they had all participated in the demonstration of 17 May 2010 organised by the Yekiti party and Syrian Kurds in Cyprus. Some of them, once in Cyprus, had been active in the party and participated in other demonstrations organised by the party. They believed that their activities were well known to the Syrian Embassy in Cyprus and the Syrian authorities in general. 253. In so far as Article 13 of the Convention is concerned, the applicants complained of the lack of an effective domestic remedy with regard to their complaint under Article 3. In particular, they claimed that a recourse challenging the decisions of the Reviewing Authority and the deportation and detention orders did not have automatic suspensive effect and did not entail an examination of the merits of the administrative decisions. 254. The applicants’ complaints under this head were not communicated to the Government. The Court will proceed to examine the admissibility of the complaints by dividing the applicants in two groups. A. Applicants H.S., M.S., H.H. and H.Sw. (application nos. 41753/10, 41796/10, 41811/10 and 41921/10) 255. The Court reiterates that the rule of exhaustion of domestic remedies in Article 35 § 1 of the Convention requires applicants first to use the remedies provided by the national legal system, thus dispensing States from answering before the Court for their acts before they have had an opportunity to put matters right through their own legal system. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see Vučković and Others v. Serbia [GC], no. 17153/11, § 69, 25 March 2014, with further references). 256. For a remedy to be effective it has to be available in theory and in practice at the relevant time, meaning that it has to be accessible, capable of providing redress in respect of the applicant’s complaints and offer reasonable prospects of success. Article 35 must also be applied to reflect the practical realities of the applicant’s position in order to ensure the effective protection of the rights and freedoms guaranteed by the Convention (NA. v. the United Kingdom, no. 25904/07, § 88, 17 July 2008, with further references). 257. In some cases there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his or her disposal. However, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see Vučković, cited above, § 74 and Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 52, ECHR 2013 (extracts)). In cases where an applicant seeks to prevent his or her removal from a Contracting State, a remedy will only be effective if it has suspensive effect. Conversely, where a remedy does have suspensive effect, the applicant will normally be required to exhaust that remedy. Judicial review, where it is available and where the lodging of an application for judicial review will operate as a bar to removal, must be regarded as an effective remedy which in principle applicants will be required to exhaust before lodging an application with the Court or indeed requesting interim measures under Rule 39 of the Rules of Court to delay a removal (NA, cited above, § 90; contrast M.A., cited above, §§ 131‑143). 258. In so far as the present cases are concerned, for the reasons set out below the Court does not consider that the applicants took the necessary steps to exhaust effective domestic remedies in respect of their complaints under this head. The Court notes the following in this respect. 259. The Court first observes that the Asylum Service is the first instance in the domestic asylum proceedings and that there is a right to appeal to the Reviewing Authority (see M.A., cited above, §§ 73-74). Both proceedings are suspensive and asylum seekers have a right under the Refugee Law to remain in Cyprus pending the examination of their claim before these authorities (ibid., § 74). 260. Although H.S., M.S. and H.H. filed asylum claims the consideration of their applications was discontinued and their files closed by the Asylum Service as none of them attended the scheduled interview. According to the relevant decisions, the authorities had not been able to locate H.S. and M.S. as they had failed to inform the authorities of a change of address and to give the right telephone number. Furthermore, there was indication that H.H. had received the letter inviting him to the interview and had also confirmed in a telephone call that he would attend. H.S. and H.H. did not appeal to the Reviewing Authority. Although M.S. filed an appeal this was dismissed by the Reviewing Authority as it had been made on the wrong grounds; in particular, the appeal dealt with the merits of his application rather than contesting the grounds of the decision to discontinue it (see paragraph 62 above). Consequently, the substance of the applicants’ asylum claims was never examined by the domestic authorities. 261. Although H.S. and H.H. claimed that they were not invited to attend an interview by the authorities, they have not made any comments concerning that or contested as such the findings of the Asylum Service in its decisions. H.S. appears not to have followed-up on his asylum application at all whereas H.H. did not file an appeal when he eventually found out about the decision. He submitted that he had not done so because he was not aware how to proceed and was scared to approach the authorities. In the Court’s view, however, these are not legitimate grounds for not exhausting the relevant remedy. Furthermore, M.S. was represented by legal counsel in the appeal proceedings. The Court further notes that none of the three applicants attempted to re-apply for asylum. 262. In so far as H.Sw. is concerned the Court notes that he had his asylum claim examined by the Asylum Service. It was dismissed as he had failed to make plausible that he was in need of international protection. The applicant claimed that he was not informed of this decision until a non-governmental organisation followed up his case. His appeal was dismissed by the Reviewing Authority under Section 28 F (2) of the Refugee Law 2000-2009 (as amended up to 2009) on the ground that it had been filed out of time. The Reviewing Authority observed that the letter informing the applicant of the dismissal of his asylum application had been served through a private messenger and that the delivery slip had been signed by his fellow lodger. The applicant has not commented on the findings of the Reviewing Authority. 263. The Court cannot identify any grounds for considering that the specific remedies available in the domestic system are in any way inadequate or ineffective. Nor does it find any exceptional circumstances absolving the applicants from the obligation to exhaust domestic remedies. 264. It follows that the applicants’ complaint under Article 3 must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. Consequently, the complaint under Article 13 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. B. Applicants A.T., F.T., M.J., A.M., A.Hu., A.Ab., M.K., H.M., I.K., and M.Y. (application nos. 41786/10, 41973/10, 41799/10, 41794/10, 41807/10, 41812/10, 41815/10, 41820/10, 41824/10 and 41919/10) 265. The Court notes that these ten applicants had the substance of their claims examined by both the Asylum Service and the Reviewing Authority. All of their applications were rejected. Deportation orders were issued against them on 2 and 11 June 2010. None of the applicants brought recourse proceedings with the Supreme Court challenging the decisions of the Reviewing Authority and the deportation and detention orders. 266. As a preliminary note, the Court, referring to the general principles on exhaustion of domestic remedies set out above (see paragraphs 255-257 above), observes that although the applicants complain that recourse proceedings are ineffective as they did not have automatic suspensive effect, it transpires from the submissions to the Court made in their application forms, that this may well not have been the real reason they did not lodge such proceedings, at least against the asylum decisions. Different explanations have been put forward by the applicants in this connection, including, inter alia, costs, lack of information and legal advice that such proceedings would have had no realistic prospect of success. It is also worth noting that in the majority of cases, the decisions of the Reviewing Authority were taken a long time before the applicants applied to this Court. Furthermore, it appears that some of the applicants may not have raised before the domestic authorities all the reasons for which they claim before this Court that they would face risk of ill-treatment or torture in Syria. 267. The Court, however, does not find it necessary to address any questions of exhaustion of domestic remedies that might arise in these cases, as the applicants’ complaints concerning Article 3 are in any way inadmissible for the reasons set out below. 268. The Court reiterates that the Contracting States have the right as a matter of international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (see, inter alia, Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 113, ECHR 2012). Moreover, the right to political asylum is not contained in either the Convention or its Protocols (see Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 102, Series A no. 215). 269. However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3 in the receiving country, regardless of whether this risk emanates from a general situation of violence, a personal characteristic of the person concerned, or a combination of the two (see A. and M. v. the Netherlands (dec.), no. 50386/12, 1 October 2013 and Sufi and Elmi v. the United Kingdom, nos. 8319/07 and 11449/07, § 218, 28 June 2011). In these circumstances, Article 3 implies the obligation not to expel the person in question to that country (see Saadi v. Italy [GC], no. 37201/06, § 125, ECHR 2008 with further references). 270. The assessment of whether there are substantial grounds for believing that the applicant faces such a real risk inevitably requires that the Court assess the conditions in the receiving country against the standards of Article 3 of the Convention (Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005-I). These standards imply that the ill-treatment the applicant alleges he will face if returned must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this is relative, depending on all the circumstances of the case (Hilal v. the United Kingdom, no. 45276/99, § 60, ECHR 2001-II). 271. The assessment of the existence of a real risk must necessarily be a rigorous one (see Chahal v. the United Kingdom, judgment of 15 November 1996, Reports 1996-V, § 96; and Saadi v. Italy, cited above, § 128). The Court acknowledges that, owing to the special situation in which asylum seekers often find themselves, it is frequently necessary to give them the benefit of the doubt when it comes to assessing the credibility of their statements and the documents submitted in support thereof. However, when information is presented which gives strong reasons to question the veracity of an asylum seeker’s submissions, the individual must provide a satisfactory explanation for the alleged discrepancies (see, among other authorities, Collins and Akasiebie v. Sweden (dec.), no. 23944/05, 8 March 2007, and Matsiukhina and Matsiukhin v. Sweden (dec.), no. 31260/04, 21 June 2005). In principle, the applicant has to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 (see R.C. v. Sweden, no. 41827/07, § 50, 9 March 2010; NA., cited above, § 111; and N. v. Finland, no. 38885/02, § 167, 26 July 2005). Where such evidence is adduced, it is for the Government to dispel any doubts about it. 272. Finally, in cases concerning the expulsion of asylum seekers, the Court does not itself examine the actual asylum applications or verify how the States honour their obligations under the Geneva Convention. It must be satisfied, though, that the assessment made by the authorities of the Contracting State is adequate and sufficiently supported by domestic materials as well as by materials originating from other reliable and objective sources such as, for instance, other Contracting or non-Contracting States, agencies of the United Nations and reputable non-governmental organisations (see, NA., cited above, § 119,). 273. In so far as the common grounds put forward by the applicants are concerned, the Court reiterates that a general situation of violence will not normally in itself entail a violation of Article 3 in the event of an expulsion (see, amongst many authorities, A. A. M. v. Sweden, no. 68519/10, § 62, 3 April 2014 and Sufi and Elmi, cited above, § 241). 274. However, the Court has never excluded the possibility that the general situation of violence in a country of destination may be of a sufficient level of intensity as to entail that any removal to it would necessarily breach Article 3 of the Convention. Nevertheless, the Court would adopt such an approach only in the most extreme cases of general violence, where there is a real risk of ill-treatment simply by virtue of an individual being exposed to such violence on return (NA., cited above, § 115). 275. The Court notes that at the relevant time there was no indication that the general situation in Syria for Kurds was so serious that the return of the applicants thereto would constitute, in itself, a violation of Article 3 of the Convention (contrast Sufi and Elmi, cited above, §§ 241-250). The Court has considered the reports of serious human rights violations in Syria concerning the relevant period, in particular, for the Kurdish minority, including stateless Kurds (see paragraphs 239-247 above). Although these attest to the discrimination and deprivations experienced by Kurds in Syria, these are not of such a nature or intensity as to show, on their own, that at the relevant time there would have been a violation of the Convention if the applicants were returned to that country. Nor could it be said on the basis of the material before the Court that the mere unsuccessful application for asylum abroad would lead per se to prosecution or other forms of persecution in Syria. 276. In this connection, the Court finds it important to point out that at the time of deportation of the applicants in 2010, the Syrian uprising and the ongoing armed conflict in Syria between forces loyal to the Ba’ath Party government and those seeking to oust it, had not yet begun. 277. In addition, the Court observes that the applicants did not substantiate that there was a real risk that the Syrian authorities were aware of their activities sur place in Cyprus or participation in the demonstration of 17 May 2010. It should be noted that about 150 Syrian Kurds took part in the demonstration. There is no indication that the Syrian authorities could have known who all the protesters were or that they were in a position to identify them. No evidence has been submitted establishing that there was a real risk of identification of any of the applicants from this demonstration or, indeed, any other protest or activity they may have participated in. None of the information given by the applicants has been enough to substantiate an increased profile risk. Furthermore, the photocopies of photographs provided by A.Ab. are too general and unclear. There is no indication that the applicant is in these photographs and that he can be identified. 278. Turning to the applicants’ individual situations, it is noted that the applicants’ claims were carefully examined by both the Asylum Service and the Reviewing Authority and that these authorities gave fully reasoned decisions. It is clear from these decisions that the applicants failed to make a plausible case that they were in need of international protection. The relevant decisions underline the lack of substantiation and credibility or consistency of the applicants’ claims. There is nothing to indicate that the domestic authorities’ decisions, which are extensively reasoned, were arbitrary or otherwise flawed. The applicants have equally failed to substantiate the accounts of their stories and allegations before this Court. 279. In view of the above, the Court finds that the applicants failed to establish that there were substantial grounds for believing that they would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the Convention, when they were to be deported to Syria at the material time. 280. The Court notes that following the applicants’ deportation their representative informed the Court that the majority of the applicants had been arrested and detained upon their return to Syria. Furthermore, one applicant, M.J., claimed that he had been subjected to ill-treatment during their detention. Even assuming, however, that he was subjected to treatment contrary to Article 3 upon his return to Syria at the time of his deportation in 2010, there was no evidence before the domestic authorities or the Court that at the material time the applicant was at risk of being subjected to such treatment (see, mutatis mutandis, M.E. v. Denmark, no. 58363/10, §§ 62 and 64, 8 July 2014 and Mannai v. Italy, no. 9961/10, § 36, 27 March 2012, § 36). 281. In view of the above, the Court finds that the applicants’ complaint under Article 3 is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and must be rejected pursuant to Article 35 § 4 of the Convention. 282. The Court reiterates that Article 13 guarantees the availability at national level of a remedy where there is an “arguable claim” of a violation of a substantive Convention provision (see, Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131). Having regard to the Court’s conclusions above as regards the applicants’ complaint under Article 3, it cannot be said that they have an “arguable claim” under this provision. 283. Consequently the complaint under Article 13 is also manifestly ill‑founded and must be rejected, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 284. The applicants complained that they did not have an effective remedy at their disposal to challenge the lawfulness of their detention. They relied on Article 5 § 4 of the Convention, which provides as follows: Article 5 § 4 “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A. The parties’ submissions 1. The Government 285. The Government’s submissions were the same as those made in the case of M.A. (cited above, §§ 146, and 158-159). 2. The applicants 286. The applicants made virtually the same submissions as those made in M.A. (cited above, §§ 147, and 150-157). Although as in the above case, the applicants also complained of the effectiveness of habeas corpus proceedings (see M.A., cited above, § 156), they pointed out that they could not have brought such proceedings as the Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third‑country nationals was not applicable at the time they were in detention with a view to deportation (see relevant domestic law part in M.A., cited above, §§ 85-87). B. Admissibility and Merits 287. The Court notes that the issue raised under this provision concerning judicial review proceedings is identical to that examined in the case of M.A., (cited above). 288. The Court recalls that in that case it declared this complaint admissible (ibid., §§ 148-149) and held that there had been a violation of that provision as a recourse under Article 146 of the Constitution did not comply with the requirement of “speediness” (ibid., §§ 160-170). 289. The Court finds no reason in the instant cases to depart from the above findings made in the M.A. judgment. 290. Accordingly, it concludes that there has been a violation of Article 5 § 4 the Convention. 291. As in M.A., in view of the above finding, it does not consider it necessary to examine the remainder of the applicants’ complaints concerning judicial review proceedings and habeas corpus proceedings (ibid., § 171). IV. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 292. The applicants further complained that their detention had been unlawful and therefore in breach of Article 5 § 1 (f) of the Convention, which, in so far as relevant, reads as follows: Article 5 § 1 “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: ... (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.” A. The applicants’ complaints under this provision 293. The Court notes that the applicants’ complaint under Article 5 § 1 of the Convention can be divided into two parts that require separate examination: - the first part concerns their transfer, along with the other protesters, to the ERU headquarters on 11 June 2010 and their stay there pending their identification later on the same date (see M.A., cited above, § 36, in fine); - the second part concerns their detention on the basis of the deportation and detention orders issued against them on 2 and 11 June 2010 under the Aliens and Immigration Law until their respective deportation, voluntary departure from Cyprus. B. The applicants’ transfer to and stay at the ERU headquarters on 11 June 2010 1. The parties’ submissions 294. The parties’ submissions in respect to this complaint were the same as those made in the case of M.A. (cited above, §§ 173, 177-180). 2. The Court’s assessment Admissibility 295. The Court notes that the applicants’ complaint concerning this period arises from the same factual circumstances as those in M.A. (cited above) and that the issue at stake is identical to that examined in the above case. M.A. and the applicants in the present cases were all transferred to the E.R.U. headquarters together and stayed there for a number of hours pending their identification and ascertainment of their status. 296. The Court recalls that in the case of M.A. it declared this complaint admissible (§§ 185-196) finding that the applicant’s transfer to and stay in the ERU headquarters during this period amounted to a de facto deprivation of liberty within the meaning of Article 5 § 1 and that this provision applied to the case ratione materiae . It further held that the complaint was not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. 297. The Court went on to find that M.A’s deprivation of liberty during this period was contrary to Article 5 § 1 of the Convention in the absence of a clear legal basis for the deprivation of his liberty (§§ 197-203). 298. For the same reasons, as in the case of M.A., the Court finds that the applicants’ complaint concerning the same period is admissible and that there has been a violation of Article 5 § 1 concerning the applicants’ deprivation of liberty during this period. C. The applicants’ detention on the basis of the deportation and detention orders issued against them 1. The parties’ submissions (a) The applicants 299. The applicants submitted that their detention had been arbitrary and contrary to Article 5 § 1 (f) of the Convention. First of all, although the Government claimed that charges had been brought against them on 11 June 2010 for unlawful residence they had not submitted any evidence before the Court to this effect. The copies of the letters sent by the District Aliens and Immigration Branch of the Nicosia Police to the Director of the Aliens and Immigration Service and the Ministry of Justice and Public Order which have been provided by the Government (see paragraph 179 above), simply recommended the issuance of deportation orders against the applicants. 300. They had then been detained on the basis of detention and deportation orders which had been issued on the same day. Once, however Rule 39 had been applied the authorities were not able to deport them. Although the authorities could have released them on conditions or granted them a temporary residence permit on humanitarian grounds pending the examination of their case by the Court, they continued to detain them even though no action could have been taken with a view to their deportation as required by the Convention (relying on Chahal, cited above, §§ 112 -113). The applicants claimed that their detention for such a long period was arbitrary and could only be considered as punishment (relying on Saadi v. the United Kingdom ([GC], no. 13229/03, §§ 69 -70, ECHR 2008). They had been arrested and detained as punishment for demonstrating against the Government. This was evidenced by a number factors: A.M. and M.S. (applications nos. 41794/10 and 41796/10) were stateless Ajanib and they should not have been subject to deportation as the instructions given by the Minister of the Interior did not apply to failed asylum seekers with Ajanib or Maktoumeen status (see paragraph 176 above). Furthermore, the records given by the Government indicated that the instructions concerning some of the applicants (A.T., F.T. and H.H.) were that if they were traced they should not be deported unless they were involved in illegal activities (see paragraphs 22, 43 and 96 above). Consequently, it was clear to the applicants that the authorities had acted in bad faith. 301. The applicants emphasised that the decisions of the Chief Immigration Officer for detention and deportation were not at the time subject, under law, to a maximum period of detention. Section 14 of the Aliens and Immigration Law provided a wide margin of discretion to the Chief Immigration Officer to detain indefinitely for the purpose of deportation. Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third‑country nationals was not applicable at the time the applicants were kept in detention (see M.A., cited above, §§ 85-87). Finally, domestic law did not provide for periodic review of detention for the purpose of deportation. (b) The Government 302. The Government maintained that the applicants had been detained lawfully during the relevant period with a view to their deportation under Article 5 § 1 (f) of the Convention within the meaning of the Court’s case-law. In this respect the Government submitted that the applicants’ arrest and detention on the ground of unlawful stay had been lawful as it had been in conformity with domestic law and procedure. The applicants had been “prohibited immigrants” within the meaning of section 6(1)(k) of the Aliens and Immigration Law as they had stayed in the Republic unlawfully after the rejection of their asylum applications. Three of the applicants, namely, A.T.., F.T., and H.H. had been arrested and detained on the basis of deportation and detention orders that had already been issued against them on 2 June 2010 pursuant to section 14 (6) of the Aliens and Immigration Law on the same grounds. The remaining eleven applicants had been charged with the criminal offence of unlawful stay which was a flagrant offence punishable by imprisonment under section 19 (2) of the Aliens and Immigration Law (see M.A., cited above, § 65). Article 11 (4) of the Constitution permitted arrest without a warrant for flagrant offences carrying a term of imprisonment (see M.A., cited above, § 88). Their detention continued on the basis of deportation and detention orders with a view to their deportation. For these applicants the orders had been issued on the same day, that is, 11 June 2010, before the lapse of the twenty-four hour time-limit set by Article 11 (5) of the Constitution (see M.A., cited above, § 88) pursuant to Section 14 (6) of the Aliens and Immigration Law on the ground that they “prohibited immigrants” within the meaning of section 6(1)(k) of that Law (the order issued in respect of A.Ab. also referred to 6(1)(l) of the Law). Contrary to the applicants’ submissions, the letters sent by the District Aliens and Immigration Branch of the Nicosia Police to the Director of the Aliens and Immigration Service and the Ministry of Justice and Public Order stated that after ascertaining that the applicants had been staying unlawfully in the Republic, the applicants had been arrested and charged with the commission of this offence and had been informed of their rights under Law 163(I) of 2005 (see paragraph 185 above and relevant domestic law part in M.A., cited above, § 40.) 303. Furthermore, the Government pointed out that when Rule 39 was applied by the Court on 14 June 2010, the Court’s indication was that the applicants should not be deported to Syria until the Court received and examined all the documents that it had requested pertaining to the applicants’ claims. The Government submitted all documents and information and had every reason to believe that their examination by the Court would soon result in the lifting of the interim measure. Therefore, during the period that the Court’s interim measure was in force the Government had not abandoned but continued their efforts in order to be ready to carry out the deportation of the applicants as soon as the interim measure was lifted. When the Court decided to lift the measure on 21 September 2010 the authorities started deporting the persons concerned within a matter of days and within ten weeks the deportations had ended. Seven of the applicants, F.T., M.J., A.Hu., H.H., M.K., H.M. and I.K., were deported on 25 September 2010; A.Ab. and M.Y. had agreed to leave voluntary and departed from Cyprus on 24 September 2010 and on 1 October 2010 respectively; and five applicants, namely, H.S., A.T.., A.M., M.S., and H.S.w, were deported on 14 December 2010. In view of the above, the Government argued that it was clear that the applicants had been detained during the relevant period with a view to their deportation within the meaning of the Court’s case-law. 2. The Court’s assessment (a) Admissibility 304. The Court notes that it is not disputed that the applicants were deprived of their liberty from 11 June 2010 until their deportation or voluntary departure from Cyprus on the basis of deportation and detention orders issued under the Aliens and Immigration Law. 305. The Court further notes that the applicants’ complaints under this head are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. (b) Merits (i) Applicants F.T., M.J., A.Hu., H.H., A.Ab., M.K., H.M., I.K. and M. Y (application nos. 41793/10, 41799/10, 41807/10, 41811/10, 41812/10, 41815/10, 41820/10, 41824/10 and 41919/10) 306. As in M.A., (cited above, § 206), the Court is satisfied that the deprivation of liberty of the nine applicants during the relevant period fell within the ambit of Article 5 § 1 (f) of the Convention as they were detained for the purpose of being deported from Cyprus. This provision does not require that the detention of a person against whom action is being taken with a view to deportation be reasonably considered necessary, for example to prevent his committing an offence or fleeing; in this respect Article 5 § 1 (f) provides a different level of protection from Article 5 § 1 (c) (see Chahal, cited above, §§ 112-113 and Čonka v. Belgium, no. 51564/99, § 38, ECHR 2002‑I). All that is required under this provision is that “action is being taken with a view to deportation”. It is therefore immaterial, for the purposes of Article 5 § 1 (f), whether the underlying decision to expel can be justified under national or Convention law (see Chahal, cited above, § 112). 307. The Court notes that Cypriot law allows for the possibility of detention with a view to deportation. The Court observes in this respect that the decisions of 2 and 11 June 2010 ordering the applicants’ detention and deportation were based on section 14 of the Aliens and Immigration Law, which permits the Chief Immigration Officer to order the deportation of any alien who is a prohibited immigrant and his or her detention in the meantime (see M.A., cited above, §§ 63 and 207). 308. It follows that, as in M.A., the issue to be determined is whether the applicants’ detention under that provision was “lawful”, including whether it complied with “a procedure prescribed by law”. 309. The Court observes that two of the applicants, F.T. and H.H., were detained on the basis of deportation and detention orders issued against them on 2 June 2010 and the remaining seven applicants were charged on 11 June 2010 with the offence of unlawful stay and then their detention continued on the basis of deportation and detention orders issued on the same day. All the orders had been issued pursuant to section 6(1)(k) of the Aliens and Immigration Law on the ground that the applicants were “prohibited immigrants” staying in the Republic unlawfully. The order issued in respect of A.Ab. also referred to 6(1)(l) of the Law. Eight of the applicants had their asylum applications rejected and one had his asylum file closed. Furthermore, although one of the applicants had subsequently been granted a temporary permit he had continued to remain in the country after this had expired. Under domestic law therefore the applicants had no longer the right to remain in Cyprus (see M.A, cited above, § 75). 310. In view of the foregoing, the Court finds that the applicants’ detention had a legal basis in domestic law and was ordered “in accordance with a procedure prescribed by law”. 311. This having been said, the Court reiterates that any deprivation of liberty under Article 5 § 1 (f) of the Convention will be justified as long as deportation proceedings are in progress. If such proceedings are not conducted with due diligence, the detention will cease to be permissible under Article 5 § 1 (f) (see Chahal, cited above, § 113). In other words, the length of the detention for this purpose should not exceed what is reasonably required (see Saadi v. the United Kingdom, cited above, § 74.). The Court reiterates in this regard that the Contracting States are obliged under Article 34 of the Convention to comply with interim measures indicated under Rule 39 of the Rules of Court and any deportation proceedings should therefore be suspended (see Gebremedhin [Gaberamadhien] v. France, no. 25389/05, §§ 73 and 74, ECHR 2007‑V). The Court has previously found that where expulsion or extradition proceedings are provisionally suspended as a result of the application of an interim measure, that does not in itself render the detention of the person concerned unlawful, provided that the authorities still envisage expulsion at a later stage, and on condition that the detention is not unreasonably prolonged (Keshmiri v. Turkey (no. 2), no. 22426/10, § 34, 17 January 2012 and S.P. v. Belgium (dec.), no. 12572/08, 14 June 2011). 312. The Court observes that the applicants were all arrested on 11 June 2010 and that Rule 39 was applied on 14 June 2010. It was lifted on 21 September 2010 and all the applicants remained in detention during this period which lasted a total of three months and eleven days. The Government submitted that during this period they continued their efforts in order to be ready to carry out the deportations as soon as the Court lifted the interim measure. The applicants, however, argued that as no action could be taken during this period with a view to their deportation, their detention for such a long period had been unlawful and their deportation should have been suspended (Gebremedhin, cited above). 313. The Court first notes that all the nine applicants were deported promptly within three to ten days of the lifting of the measure; A.Ab. was deported on 24 September 2010 and was therefore detained in total for a period of three months and fourteen days; F.T., M.J., A.Hu,. H.H., M.K., H.M., and I.K. were deported on 25 September 2010 and were therefore detained for three months and fifteen days. Lastly, M. Y was deported on 1 October 2010. He was thus detained for three months and twenty days. 314. Furthermore, the Court notes that the above periods of detention do not appear to be unreasonably long (see, for example, Umirov v. Russia, no. 17455/11, §§ 137-142, 18 September 2012 and Al Husin v. Bosnia and Herzegovina, no. 3727/08, §§ 67-69, 7 February 2012, where the relevant periods of detention following the application of an interim measure by the Court, which lasted eight months and for more than a year respectively, were found to be compatible with Article 5 § 1 (f)). Nor have there been any significant unjustified delays or any inaction in deporting the applicants. It is also relevant that, as the Court has established above (see paragraph 310 above), the applicants’ detention during this period was in compliance with domestic law. Lastly, there is no indication that the authorities acted in bad faith, and there is no information on the part of the applicants that they were detained in unsuitable conditions or that their detention was arbitrary for any other reason (see Saadi v. the United Kingdom, cited above, § 74). 315. In view of the foregoing, the Court is satisfied that the requirement of diligence was complied with and the overall length of the abovementioned applicants’ detention was not excessive. 316. It therefore finds that there has been no violation of Article 5 § 1 (f) on this account. (ii) Applicants H.S., A.T., A.M., M.S. and H.Sw. (application nos. 41753/10, 41786/10, 41794/10, 41796/10 and 41921/10) 317. The Court is satisfied that the deprivation of liberty of the five applicants during the relevant period fell within the ambit of Article 5 § 1 (f) of the Convention as they were detained for the purpose of being deported from Cyprus. The decisions of 2 and 11 June 2010 ordering the applicants’ detention and deportation were based on section 14 of the Aliens and Immigration Law (see M.A, cited above, § 63). 318. The Court observes that one of the applicants, A.T., was detained on the basis of deportation and detention orders issued against him on 2 June 2010 and the remaining four applicants were charged on 11 June 2010 with the offence of unlawful stay and then their detention continued on the basis of deportation and detention orders issued on the same day. All the orders had been issued pursuant to section 6(1)(k) of the Aliens and Immigration Law on the ground that the applicants were “prohibited immigrants” staying in the Republic unlawfully. A.T., AM. and H.Sw had their asylum applications rejected and H.S. and M.S. had their asylum files closed. Under domestic law therefore the applicants had no longer the right to remain in Cyprus (see M.A, cited above, § 75). 319. In view of the foregoing, the Court finds that the applicants’ detention had a legal basis in domestic law and was ordered “in accordance with a procedure prescribed by law”. 320. The Court observes, however, that the applicants were deported on 14 December 2010, that is, two months and twenty-three days after the interim measure was lifted and were in the meantime kept in detention. Although the Government submitted that throughout the period that Rule 39 was in force they had continued their efforts to prepare the applicants’ deportation, they have not provided any information at all as to what action was taken or what difficulties may have been encountered during the following period, subsequent to the lifting of the Rule 39 measure. They have not therefore shown that they acted with the required diligence for the purpose of making the necessary arrangements for deporting these applicants and thus putting an end to their detention as soon as reasonably possible. The Court further observes that during this latter period there were no pending proceedings that might account for the delay in their deportation. 321. The Court has found in a number of cases longer periods of detention to be in compliance with Article 5 § 1 (f) of the Convention (see for example, see Chahal, cited above, and Raza v. Bulgaria, no. 31465/08, 11 February 2010, where the duration was of more than three and two and a half years respectively). It underlines, however, that in those cases, unlike the present ones, there were specific indications that deportation proceedings were indeed in progress. 322. Consequently the Court finds, in the absence of relevant and sufficient information on the part of the Government, that the applicants’ detention was unjustifiably prolonged. 323. In view of the foregoing, the Court is not satisfied that the requirement of diligence had been complied with. Therefore there has been a violation of Article 5 § 1 (f) of the Convention. D. Overall conclusion 324. The Court finds that there has been: (a) a violation of Article 5 § 1 of the Convention in respect of the applicants’ arrest and detention on 11 June 2010 following their transfer to and stay at the ERU headquarters pending their identification; (b) no violation of Article 5 § 1 (f) in respect of applicants F.T., M.J., A.Hu., H.H, A.Ab., M.K., H.M., I.K. and M.Y (applications nos. 41793/10, 41799/10, 41807/10, 41811/10, 41812/10, 41815/10, 41820/10, 41824/10 and 41919/10 – see paragraphs 306-316); and, (c) a violation of Article 5 § 1 (f) in respect of applicants H.S., A.T., A.M., M.S. and H.Sw (applications nos. 41753/10, 41786/10, 41794/10, 41796/10 and 41921/10 – see paragraphs 317-323 above). V. ALLEGED VIOLATION OF ARTICLE 5 § 2 OF THE CONVENTION 325. The applicants complained that the authorities had not complied with the requirements of Article 5 § 2 of the Convention. This provision reads as follows: Article 5 § 2 “ Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.” A. The parties’ submissions 326. The parties’ submissions in respect to this complaint were the same as those made in the case of M.A. concerning the reasons of their arrest and detention on 11 June 2010 (cited above, §§ 221-222 and 224-225). B. Admissibility and Merits 327. The Court notes that the applicants’ complaint in the present cases is identical and arises from the same factual circumstances with the first part of M.A.’s complaint concerning his arrest on the same date (M.A., cited above, §§ 221 and 223). 328. The Court recalls that in that case it declared this complaint admissible (ibid., § 220) and held that there had not been a violation of Article 5 § 2 (ibid.,§§ 234-236). It found that it had no reason to doubt, in the circumstances, that M.A. was informed at the time that he had been arrested on the ground of unlawful stay or that he at least understood, bearing in mind the nature of the identification process, that the reason for his arrest and detention related to his immigration status. In this connection, the Court also noted that M.A. had filed a Rule 39 request, along with a number of other protesters, the very next day, seeking the suspension of their deportation. A reading of this request indicates that they were all aware of the fact that they were detained for the purpose of deportation. 329. The Court finds, for the same reasons as in the above case, that there has been no violation of this provision. VI. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL NO. 4 TO THE CONVENTION 330. The applicants complained of a violation of Article 4 of Protocol No. 4 in that the authorities were going to deport them and others collectively without having carried out an individual assessment and examination of their case. This provision provides as follows: Article 4 of Protocol No. 4 “Collective expulsion of aliens is prohibited.” A. The parties’ submissions 331. The parties’ submissions in respect to this complaint were the same as those made in the case of M.A. (cited above, §§ 240-244). B. Admissibility and Merits 332. The Court notes that this complaint arises from the same factual circumstances as those in M.A. (cited above) and that the issue at stake is identical to that examined in the above case. 333. The Court recalls that in that case it declared this complaint admissible (ibid., § 239) and held that there had not been a violation of Article 4 of Protocol No. 4 as it was not persuaded that the measure taken by the authorities revealed the appearance of a collective expulsion within the meaning of this provision (ibid., §§ 245-255). 334. The Court sees no reason in the instant cases to depart from the conclusions which it reached in the M.A. judgment. 335. Accordingly, it concludes that there has not been no violation of Article 4 of Protocol No. 4. VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION 336. 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 337. In the observations submitted on behalf of the applicants in August 2011, the applicants’ representative stated that, following their deportation to Syria, she had not managed to establish contact with them before the relevant deadline. She had not therefore, been in a position at that point in time to submit just satisfaction claims for non–pecuniary damage on their behalf. In subsequent correspondence she informed the Court that she had re-stablished contact with the applicants. 338. The Government did not make any comments on the matter. 339. The Court notes that the applicants’ representative did not make a request to submit a claim for non-pecuniary damage after she managed to establish contact with the applicants. As a result, no such claim was ever submitted. In these circumstances, the Court considers that there is no call to award them a sum under this head. B. Costs and expenses 340. The applicants also claimed 200 euros (EUR) each (EUR 2800 in total), plus VAT for costs and expenses incurred before the Court. In this connection, their representative submitted that this was the amount they had agreed upon together. The applicants had not paid her, however, as they had in the meantime been deported. 341. The Government contested the applicants’ claim and maintained was excessive considering that the applications shared common facts and legal issues. 342. 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 applicants have failed to provide any supporting documents – such as itemised bills or invoices – substantiating their claim (Rule 60 §§ 1 and 2 of the Rules of Court; see M.A., cited above, § 262). The Court accordingly makes no award under this head. C. Default interest 343. 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 complaints concerning Article 5 §§ 1, 2 and 4 of the Convention and Article 4 of Protocol No. 4 admissible and the remainder of the complaints inadmissible; 3. Holds that there has been a violation of Article 5 § 4 of the Convention; 4. Holds that there has been a violation of Article 5 § 1 of the Convention in so far as the applicants’ arrest and detention on 11 June 2010 following their transfer to and stay at the ERU headquarters is concerned; 5. Holds that there has been no violation of Article 5 § 1 of the Convention in respect of applicants F.T., M.J., A.Hu., H.H, A.Ab., M.K., H.M., I.K. and M. Y., (applications nos. 41793/10, 41799/10, 41807/10, 41811/10, 41812/10, 41815/10, 41820/10, 41824/10 and 41919/10); 6. Holds that there has been a violation of Article 5 § 1 of the Convention in respect of applicants H.S., A.T., A.M., M.S. and H.Sw., (applications nos. 41753/10, 41786/10, 41794/10 41796/10 and 41921/10); 7. Holds that there has been no violation of Article 5 § 2 of the Convention; 8. Holds that there has been no violation of Article 4 of Protocol No. 4 of the Convention; 9. Dismisses the applicants’ claim for just satisfaction. Done in English, and notified in writing on 21 July 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Françoise Elens-PassosGuido RaimondiRegistrarPresident APPENDIX: List of the applications No. Application No. Case title Applicant’s nationality/origin Deportation/ Departure Date 1. 41753/10 H.S.. v. Cyprus Syrian national of Kurdish origin 14 December 2010 2. 41786/10 A.T.. v. Cyprus Syrian national of Kurdish origin 14 December 2010 3. 41793/10 F.T. v. Cyprus Syrian national of Kurdish origin 25 September 2010 4. 41794/10 A.M. v. Cyprus Ajanib (registered stateless) Kurd 14 December 2010 5. 41796/10 M.S. v. Cyprus Ajanib (registered stateless) Kurd 14 December 2010 6. 41799/10 M.J. v. Cyprus Syrian national of Kurdish origin 25 September 2010 7. 41807/10 A.Hu. v. Cyprus Syrian national of Kurdish origin 25 September 2010 8. 41811/10 H.H. v. Cyprus Syrian national of Kurdish origin 25 September 2010 9. 41812/10 A.Ab. v. Cyprus Syrian national of Kurdish origin 24 September 2010 (returned voluntarily) 10. 41815/10 M.K. v. Cyprus Syrian national of Kurdish origin 25 September 2010 11. 41820/10 H.M. v. Cyprus Syrian national of Kurdish origin 25 September 2010 12. 41824/10 I.K. v. Cyprus Syrian national of Kurdish origin 25 September 2010 13. 41919/10 M.Y. v. Cyprus Syrian national of Kurdish origin 1 October 2010 (returned voluntarily) 14. 41921/10 H.Sw. v. Cyprus Syrian national of Kurdish origin 14 December 2010

THIRD SECTION CASE OF PYLAYEVY v. RUSSIA (Application no. 61240/15) JUDGMENT STRASBOURG 17 July 2018 This judgment is final but it may be subject to editorial revision. In the case of Pylayevy v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Alena Poláčková, President,Dmitry Dedov,Jolien Schukking, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 26 June 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 61240/15) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Ruslan Sergeyevich Pylayev (“the first applicant”) on his own behalf and in the name and on behalf of his mother, Mrs Valentina Fedorovna Pylayeva (“the second applicant”) – also a Russian national – on 2 December 2015. 2. The applicants were represented initially by the first applicant’s brother (the second applicant’s son), Mr D. Pylayev, and then by Mr U. Sommer, a lawyer practising in Germany. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin. 3. On 13 June 2016 the President of the Section decided that priority treatment should be given to the case, in accordance with Rule 41 of the Rules of Court. 4. On 3 February 2017 the complaints concerning the domestic courts’ failure to ensure the first applicant’s participation and the second applicant’s participation or her representation in the appeal hearing of 8 June 2015 and the complaint about the interference with their right to respect for their home were communicated to the Government and the remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court. 5. The Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejects it. THE FACTS THE CIRCUMSTANCES OF THE CASE 6. The first applicant was born in 1976 and is serving a sentence of imprisonment in the Sverdlovsk region. The second applicant was born in 1950 and lives in Vladivostok. A. Background to the case 7. In July 2012 the first applicant’s employer, the prosecutor’s office of the Primorskiy Region, provided him with a flat and concluded a tenancy agreement with him. The second applicant was included in the agreement as a member of the first applicant’s family. 8. In August 2012 the second applicant was classified as having a first‑degree disability. 9. On 7 October 2014 the first applicant retired from the prosecutor’s office. On the same date he applied to the General Prosecutor of the Russian Federation with a request for the transfer of the title to the flat in question to him. 10. On 8 October 2014 criminal proceedings were initiated against the first applicant in respect of a suspected criminal offence. On the same date he was arrested and on 10 October 2014 he was detained pending investigation. On an unspecified date in 2016 the first applicant was released and placed under house arrest. 11. On 21 November 2014 the first applicant’s request for the transfer of the title to flat in question to him was refused. B. Eviction proceedings 12. On 25 November 2014 the first applicant received notice to vacate the flat by 5 December 2014. 13. On 26 November 2014 the first applicant’s brother received notice to vacate the flat (the notice was addressed by the prosecutor’s office to the second applicant). 14. In December 2014 the prosecutor’s office brought eviction claims against the applicants on the grounds that the first applicant no longer worked for the prosecutor’s office and that therefore, he and his family had to vacate the flat. 15. The first applicant contested those claims. He submitted that it would be unlawful to evict him and his mother because he, as a retired prosecutor, had a right to acquire ownership of the flat in question. He and his mother had no other housing. In addition, his mother was a retired person and had a first-degree disability. 16. On 27 February 2015 the Frunzenskiy District Court (“the District Court”) dismissed the eviction claims. The prosecutor’s office appealed against that judgment to the Primorskiy Regional Court (“the Regional Court”). 17. On 8 June 2015 the Regional Court quashed the judgment of 27 February 2015 and delivered a new decision ordering the applicants’ eviction, with no alternative accommodation being provided. The first applicant was represented by a lawyer, K. The second applicant was not present and was not represented in those proceedings. In particular, the Regional Court found that the first applicant and his mother had been provided with a flat for the period of the first applicant’s service in the prosecutor’s office. Under domestic law and the terms of the agreement, the tenants had had to vacate the housing after the termination of the agreement and in the event of their refusal they had had to be evicted with no alternative accommodation being provided. As at the date of the examination of the eviction claims the first applicant had not applied to the Prosecutor General of the Russian Federation for title to the flat in question to be transferred to him; therefore, the District’s Court conclusion as to the absence of any obstacles to the transfer of ownership of the flat in question to the first applicant was in conflict with the circumstances established in the case. As at the date of the examination of the prosecutor’s appeal the question regarding the transfer of ownership of the flat in question to the first applicant had not been decided. 18. The first applicant lodged a cassation appeal against that decision with the presidium of the Regional Court. He complained that the hearing of 8 June 2015 had been held in his absence and that as a result he had been evicted from the only accommodation he had had. 19. On 22 July 2015 a judge of the Regional Court refused to refer the first applicant’s appeal to the Civil Chamber of the Regional Court for examination on the merits. The first applicant lodged a cassation appeal with the Supreme Court of the Russian Federation. 20. On 22 September 2015 the second applicant was evicted from the flat. 21. On 30 September 2015 a judge of the Supreme Court refused to refer the first applicant’s cassation appeal to the Civil Chamber of the Supreme Court for examination. C. Incapacitation proceedings 22. In June 2015 the first applicant’s brother (Mr D. Pylayev) initiated court proceedings for the second applicant to be deprived of legal capacity and for him to be appointed as her guardian. 23. On 11 May 2016 the District Court declared that the second applicant lacked legal capacity because she was suffering from illness. In particular, the District Court based its decision on an expert report dated 25 January 2016 which had established that she had been suffering from a mental handicap since 2010 and as a result had not been able to understand or control her actions. That judgment entered into force on 14 June 2016. 24. On 29 June 2016 the local public health department appointed the first applicant’s brother as her guardian. THE LAW I. THE FIRST APPLICANT’S STANDING TO BRING THE APPLICATION IN THE NAME AND ON BEHALF OF THE SECOND APPLICANT A. The parties’ submissions 25. The Government submitted that the first applicant had had no standing to lodge the application with the Court in the name and on behalf of his mother. In particular, she was not indicated in the application forms as an applicant who was a direct victim of the alleged violations; at the time when the first applicant had submitted his application to the Court on 2 December 2015, his mother had been a capable person, which implied the ability to exercise procedural rights, perform procedural duties and instruct a representative to represent her. It was not until May 2016 that the domestic courts had found that she lacked legal capacity. There was no evidence to support that any physical or mental illness had prevented her from lodging the application with the Court in November and December 2015 by herself. There was no indication in the case file of the existence of a document confirming that the application has been filed with her consent. 26. The first applicant submitted that he had had standing to lodge the application in the name and on behalf of his mother. In particular, she had been unable to fill in the application form and to sign the power of authority owing to her state of health. It was true that when he had lodged the application with the Court, his mother had not been deprived of her legal capacity. However, by that time she had been already classified as having a first-degree disability because she was suffering from Alzheimer’s disease and incapacitation proceedings had already been pending. An expert report dated 25 January 2016, ordered by the domestic courts, had established that she had been suffering from a mental handicap since 2010 and as a result had not been able to understand or control her actions. 27. The first applicant furthermore submitted that the authorities had tacitly acknowledged his mother’s mental incapacity when they handed over notice of hearings in the eviction proceedings to his brother, Mr D. Pylayev, instead of his mother, after he had provided them with her disability certificate. The courts subsequently held the hearings in his mother’s absence, having considered that she had been duly notified but had failed to appear. Lastly, the first applicant pointed out that under Russian civil law the recognition of mental incapacity had retroactive force. B. The Court’s assessment 28. In Lambert and Others v. France [GC] (no. 46043/14, §§ 93-95, ECHR 2015 (extracts)) the Court reviewed cases in which the Convention institutions had accepted that a third party (a close relative, an association or a legal professional), could, in exceptional circumstances, act in the name and on behalf of a vulnerable person who had not been able to lodge a complaint with the Court on account of his or her age, sex or disability, and identified the following criteria: the risk that the direct victim would be deprived of effective protection of his or her rights, and the absence of a conflict of interest between the victim and the applicant. 29. It is not disputed by the parties that the second applicant has never been in contact with the Court. The application in her name and on her behalf was lodged with the Court by the first applicant, her son, who also lodged an application on his own behalf. The first applicant claimed that his mother (“the second applicant”) had not been able to lodge an application with the Court herself on account of her state of health. 30. The Court observes that in 2012 the second applicant was classified as having a disability of the first degree and that the expert report of 25 January 2016, referred to by the domestic court in the incapacitation proceedings, established that she had been suffering from a mental handicap since 2010 and as a result had not been able to understand or control her actions. The Court therefore considers that at the time when the first applicant lodged the application with the Court in December 2015, his mother was a vulnerable individual, who had not been able to lodge her application with the Court on account of her disability and mental handicap. It follows that the criteria established in Lambert and Others, cited above, can be applied to the present case. 31. The Court considers that there is a risk of the second applicant being deprived of effective protection of her rights if the complaints lodged by the first applicant in her name and on her behalf are not accepted for examination by the Court. In particular, the first applicant and his brother are her only close relatives, and even assuming that somebody else wished to protect her rights, such attempts would be belated. Furthermore, the Court does not discern any conflict of interest between the first applicant and his mother. 32. Having regard to the above, the Court concludes that the first applicant had the standing to lodge complaints with the Court in the name of and on behalf of his mother. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 33. The applicants complained under Article 8 of the Convention of a violation of their right to respect for their home. 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. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 34. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 35. The Government agreed that the eviction order of 8 June 2015 constituted an interference with the applicants’ right to respect for their home. However, that interference had been in accordance with the law, had pursued the legitimate aim of the protection of other individuals in need of social housing and had been “necessary in a democratic society”. In particular, the first applicant’s tenancy agreement had come to an end after his retirement, and after the applicants’ eviction the flat in question had been provided to Sh., an employee of the prosecutor’s office. Therefore, there had been no violation of Article 8 of the Convention. 36. The applicants submitted that the eviction order had interfered with their right to respect for their home and that the domestic courts had not carried out any analysis as to the proportionality of their eviction. 37. The Court notes that the applicants had already lived in the flat in question for almost three years when their eviction was ordered. Therefore, that flat was their “home” for the purposes of Article 8 of the Convention. 38. The Court considers that the eviction order amounted to an interference with the applicants’ right to respect for their home, as guaranteed by Article 8 of the Convention. The Court accepts that the interference had a legal basis in domestic law and pursued the legitimate aim of protecting the rights of individuals in need of housing. The central question in this case is, therefore, whether the interference was proportionate to the aim pursued and thus “necessary in a democratic society”. 39. The Court set out the relevant principles in assessing the necessity of an interference with the right to “home” in the case of Connors v. the United Kingdom, (no. 66746/01, §§ 81-84, 27 May 2004), which concerned the eviction of a Roma family from a local-authority caravan site. Subsequently, in McCann v. the United Kingdom (no. 19009/04, § 50, ECHR 2008), the Court held that the reasoning in the case of Connors was not confined to cases involving the eviction of Roma or to cases where the applicant had sought to challenge the law itself (rather than its application in his particular case), and furthermore held as follows: “The loss of one’s home is a most extreme form of interference with the right to respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 of the Convention, notwithstanding the fact that, under domestic law, his right of occupation has come to an end.” 40. In the present case the first applicant raised before the domestic courts the issue of his and his mother’s right to respect for their home and submitted arguments questioning the proportionality of their eviction (see paragraph 15 above). 41. The Government claimed that the interference with the applicants’ right to respect for their home had been necessary for the protection of the rights of other individuals in need of housing. However, in the domestic eviction proceedings those individuals were not sufficiently individualised to allow their personal circumstances to be balanced against those of the applicants. Therefore, the only interests that were at stake were those of the prosecutor’s office. The domestic courts did not weigh those interests against the applicants’ right to respect for their home. Once they had found that the applicants’ right to reside in the contested flat had come to an end following the termination of the tenancy agreement, they gave that aspect paramount importance, without seeking to weigh it against the applicants’ arguments. The national courts thus failed to balance the competing rights and therefore to determine the proportionality of the interference with the applicants’ right to respect for their home. 42. The Court has already found violations of Article 8 of the Convention in other cases where the applicants did not have the benefit, in the context of eviction proceedings, of an examination of the proportionality of the interference in question (see, among other authorities, McCann, cited above, §§ 50-55; Ćosić v. Croatia, no. 28261/06, §§ 20-23, 15 January 2009; Kryvitska and Kryvitskyy v. Ukraine, no. 30856/03, §§ 50‑52, 2 December 2010; and Yevgeniy Zakharov v. Russia, no. 66610/10, §§ 35‑37, 14 March 2017). It finds no reason to arrive at a different conclusion in the present case. The Court therefore concludes that there has been a violation of Article 8 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 43. The first applicant complained under Article 6 of the Convention that his right to a fair hearing was breached because the appeal court dismissed his application to appear in person at the hearing of 8 June 2015 and that his mother’s right to a fair hearing was breached because she did not take part in the hearing of 8 June 2015 in person and was not represented. 44. Having regard to the facts of the case, the submissions of the parties, and its findings under Article 8 of the Convention, the Court considers that it has examined the main legal questions raised in the present application and that there is no need to give a separate ruling on the complaints under Article 6 of the Convention (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014). IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 45. 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 46. The applicants submitted the following claims in respect of pecuniary damage: - 75,000 euros (EUR), which represented the cost of a flat equivalent to the one from which they had been evicted, - EUR 2,904, which represented the costs of household appliances and equipment that had been taken away by the bailiffs from the flat during their eviction on 21 and 22 September 2015, - 4,200 Russian roubles (RUB) in respect of the second applicant’s medical assistance costs incurred on the date of her eviction, - reimbursement of the salary paid to the second applicant’s nurse between 1 October 2015 and 1 February 2017 (RUB 25,000 per month), - RUB 180,000 for renting a house for the second applicant between 12 November 2015 and 12 February 2016; 47. The applicants claimed EUR 50,000 in respect of non-pecuniary damage. 48. The Government contested those claims. 49. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards EUR 7, 500 to the two applicants jointly in respect of non-pecuniary damage. B. Costs and expenses 50. The applicants submitted the following claims for the costs and expenses incurred before the domestic courts and the Court: - EUR 705 for the legal assistance provided by N. Kirilovich, the first applicant’s lawyer, during the proceedings before the first-instance court, - EUR 650 for the legal assistance provided by A. Litvinov, the first applicant’s lawyer, in lodging the cassation appeal, - EUR 827 for the legal assistance provided by A. Litvinov for lodging the application to the Court, - RUB 15,000 for the legal assistance provided by Mr Ramadayev, a lawyer. - RUB 10,000 for the legal assistance provided by Mr Svinaryev, a lawyer. - RUB 9,200 for the legal assistance provided by D. Kuzmin, a lawyer. - EUR 3,500 for the legal assistance provided by U. Sommer for the applicants’ representation before the Court; - RUB 26,307 for postal expenses. 51. The Government contested those claims. 52. Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the sum of EUR 2,000, covering costs under all heads. C. Default interest 53. 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. Holds that the first applicant had standing to bring the application in the name and on behalf of his mother; 2. Declares the complaint under Article 8 of the Convention admissible; 3. Holds that there has been a violation of Article 8 of the Convention; 4. Holds that there is no need to examine separately the complaints under Article 6 of the Convention; 5. Holds (a) that the respondent State is to pay to the two applicants jointly, 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 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicants, 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; 6. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 17 July 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıAlena PoláčkováDeputy RegistrarPresident

FOURTH SECTION CASE OF RADOSZEWSKA-ZAKOŚCIELNA v. POLAND (Application no. 858/08) JUDGMENT STRASBOURG 20 October 2009 FINAL 20/01/2010 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 Radoszewska-Zakościelna v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,Ljiljana Mijović,David Thór Björgvinsson,Ján Šikuta,Päivi Hirvelä,Mihai Poalelungi, judges,and Lawrence Early, Section Registrar, Having deliberated in private on 29 September 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 858/08) 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, Ms Anna Radoszewska-Zakościelna (“the applicant”), on 19 December 2007. 2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. 3. On 17 November 2008 the President of the Fourth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. The applicant's family owned a plot of land with a surface area of 1,454 sq. m. situated in the centre of Warsaw. The applicant is a legal successor of A.M.R., her grandmother and one of the direct heirs of the former owners of that property, who had passed away. A.M.R. was a party to the proceedings referred to below from the very beginning. It transpires from the case file that on 16 September 1999 the Warsaw District Court declared the applicant an heir of the deceased. 6. By virtue of the Decree of 26 October 1945 on the Ownership and Use of Land in Warsaw the ownership of all private land was transferred to the City of Warsaw. 7. On 30 September 1948 the applicant's family filed an application for the grant of the right of temporary ownership (własność czasowa) of the plot of land pursuant to section 7 of the 1945 Decree (“the 1948 application”). This application was refused in 1953 and 1954 respectively. In 1955 the State constructed the Metropol Hotel on part of the plot in question. 8. On an unspecified date the plot was divided into two separate parts. On 27 May 1990 the ownership of the first part of the original plot was transferred to the City of Warsaw by operation of law. It constituted a part of a larger plot (no. 39) with an overall surface area of 4,163 sq. m. The second part of the plot with a surface area of 636 sq. m. remained with the State. 9. On 29 June 1993 the Board of the Union of Warsaw Municipalities (Zarząd Związku Dzielnic Gmin Warszawy) issued a decision declaring that as of 5 December 1990 the “Syrena” Warsaw Tourist Company had the right of perpetual use of the plot of land no. 39. In addition, the ownership of the buildings attached to that plot, including the Metropol Hotel, was transferred to the “Syrena” company. 1. Proceedings concerning the grant of the right of perpetual use of land 10. On 1 October 1992 S.P., one of the heirs of the applicant's family and acting on their behalf, filed with the Minister of Planning and Construction (Minister Gospodarki Przestrzennej i Budownictwa) an application for annulment of the administrative decisions refusing to grant the right of temporary ownership. On 24 March 1993 the Minister quashed the 1953 and 1954 decisions. Consequently, the competent administrative authorities were required to rule on the 1948 application. The applicant (as from 16 September 1999) and other heirs of the previous owners were, as their legal successors, parties to the subsequent proceedings. 11. In 1995 the Minister of Planning and Construction instituted ex officio proceedings with a view to having his earlier decision of 24 March 1993 annulled. On 9 July 1996 the Minister declared the decision of 24 March 1993 null and void. Upon several appeals, on 11 December 1998 the Supreme Administrative Court quashed this decision. As a consequence of that judgment, the 1948 application filed by the applicant's family had yet to be examined. 12. Initially the applicant's grandmother and later the applicant herself were a party to two sets of proceedings concerning the right of perpetual use of land, which were conducted separately before the Board of the City of Warsaw (subsequently the Mayor of Warsaw) and the Warsaw District Office. That situation stemmed from the fact that the plot of land formerly owned by the applicant's family had been divided into two separate parts which were respectively owned by the City of Warsaw and the State. 13. As from July 2002, following amendments to the relevant laws, the City of Warsaw became the sole owner of the entire plot of land in question and the relevant proceedings were conducted exclusively before the Mayor of Warsaw. 14. On 11 June 1996 the Board of the City of Warsaw (Zarząd Miasta Stołecznego Warszawy) decided ex officio to stay the proceedings until the termination of the proceedings instituted by the Minister of Planning and Construction in 1995 (see above). This decision was subsequently quashed by the Warsaw Local Government Board of Appeal. 15. On 12 November 1997 the Board of the City of Warsaw decided to discontinue the proceedings, finding that they had become devoid of purpose. On 24 March 1998 the Local Government Board of Appeal quashed the impugned decision and remitted the case for re-examination. 16. On 23 June 1998, the participants complained about the inactivity of the Mayor to the Local Government Board of Appeal. 17. On 17 July 1998, the Mayor of Warsaw decided to stay the proceedings until the termination of other related proceedings pending before the Supreme Administrative Court. 18. On 2 September 1998, the Mayor informed the Local Government Board of Appeal that the case could not be examined since the proceedings had been stayed. 19. On 16 January 1999 following the Supreme Administrative Court's judgment of 11 December 1998 (see above), the participants requested the Mayor of Warsaw to grant them the right of perpetual use. 20. In January 1999 the Mayor of Warsaw began negotiations with the parties with a view to renouncing their claims to the plot of land at issue in exchange for an alternative plot. On 23 March 1999 the parties accepted the Mayor's proposal. However, on 29 April 1999 the Deputy Mayor informed them that he had to withdraw from the negotiations as there were grounds on which the 1948 application could be dismissed. 21. On 1 June 1999 the Board of the City of Warsaw refused the application. Subsequently, S.P. lodged an appeal against this decision. On 1 June 2000 the Warsaw Local Government Board of Appeal upheld the Board's decision of 1 June 1999. Upon a further appeal, on 27 February 2002 the Supreme Administrative Court quashed the Board of Appeal's decision. The Supreme Administrative Court instructed the administrative authorities to examine the heirs' intentions as to the use of the land at issue. It further emphasised that if the intended use was compatible with the local development plan, the administrative authorities were under an obligation to grant the application. 22. As of July 2002 the proceedings concerning the grant of the right of perpetual use in respect of the entire property of the applicant's family were conducted before the Mayor of Warsaw. 23. On 25 April 2003 A.G., acting on behalf of the other parties, lodged with the Warsaw Local Government Board of Appeal a complaint about the inactivity of the Board of the City of Warsaw. 24. On 9 December 2003 the Mayor of Warsaw, who in the meantime had assumed the competences of the Board of the City of Warsaw, issued his decision in the case. He refused the application, considering that the use of the plot by the heirs of the former owners would not be compatible with the local development plan adopted. The parties appealed. 25. On 24 February 2004 the parties complained to the Administrative Supreme Court about the inactivity of the Local Government board of Appeal. 26. On 12 May 2004 the Local Government Board of Appeal quashed the Mayor's decision of 9 December 2003 and remitted the case. 27. On 28 February 2008, the parties complained about the inactivity of the Mayor to the Local Government Board of Appeal. 28. On 25 April 2008 the Mayor of Warsaw stayed the proceedings pending the conclusion of the administrative proceedings concerning the grant of the right of perpetual use of land for the benefit of the “Syrena” company (see below). 29. On 30 June 2008 the Warsaw Local Government Board of Appeal quashed its decision of 25 April 2008 and discontinued the proceedings concerning the stay of the main proceedings. On an unspecified date, the Mayor of Warsaw appealed to the Regional Administrative Court. 30. It would appear that the proceedings are still pending. 2. Proceedings conducted before the Warsaw District Office up to July 2002 31. On 5 February 1999 one of the heirs requested the Warsaw District Office to grant the right of perpetual use of the plot of land owned by the State Treasury. 32. Upon two complaints about inactivity, on 30 August 1999 the Warsaw Governor ordered the Warsaw District Office to issue a decision within one month. 33. On 4 January 2000 the Warsaw District Office refused to grant the right of perpetual use in respect of the plot owned by the State Treasury, considering that that plot had been designated in the local development plan for public use. 34. On 7 September 2000 the Warsaw Governor upheld the decision of the Warsaw District Office. S.P. lodged an appeal against the decision of the Governor with the Supreme Administrative Court. 35. On 12 March 2002 the Supreme Administrative Court quashed the Warsaw Governor's decision of 7 September 2000 and the earlier decision of the Warsaw District Office. 36. On 7 June 2002 the Warsaw District Office informed the applicant that it would not be possible to conclude the proceedings within the time-limit specified in Article 35 of the Code of Administrative Procedure due to the need to undertake further examination of the application. 37. It appears that in July 2002 the ownership of the plot held by the State was transferred to the City of Warsaw by operation of law. Consequently, the proceedings concerning the grant of the right of perpetual use of land in respect of the entire property of the applicant's family were conducted before the Mayor of Warsaw (see above). 3. Proceedings concerning the grant of the right of perpetual use of land for the benefit of the “Syrena” company 38. On 10 May 1996 the heirs filed with the Board of the City of Warsaw an objection against the auction for the sale of shares in the “Syrena” company. 39. On 14 September 1996 A. G, one of the heirs, made an application to the Warsaw Local Government Board of Appeal for annulment of the decision of the Board of the Union of Warsaw Municipalities of 29 June 1993 (see above). On 17 September 1998 the Board of Appeal quashed its earlier decision and refused to institute proceedings for the annulment. 40. Upon a further appeal, on 19 November 1998 the Supreme Administrative Court stayed the proceedings pending the termination of the proceedings concerning the application for annulment of the Minister of Planning and Construction's decision of 24 March 1993. The proceedings were resumed on 27 September 2002. On 11 December 2002 the Supreme Administrative Court quashed the decision of the Board of Appeal of 17 September 1998 on procedural grounds. Consequently, the Board of Appeal had to examine the applicant's application for annulment again. 41. On 20 June and 20 December 2003 the applicant requested the Board of Appeal to expedite the proceedings. 42. On 10 December 2003 the Board of Appeal quashed its earlier decision of 26 November 1997 and declared null and void the decision of the Board of the Union of Warsaw Municipalities of 29 June 1993. 43. On 5 July 2004 the Local Government Board of Appeal reopened the proceedings at the request of the “Syrena” company. On 9 December 2004 it refused the “Syrena” company's request to quash its decision of 10 December 2003. That decision was upheld on appeal on 18 April 2005. 44. On 20 May 2005 the “Syrena” company appealed to the Regional Administrative Court in Warsaw. 45. On 13 April 2006 the Regional Court quashed the decision of the Local Government Board of Appeal of 9 December 2004. 46. On 11 July 2007 the Supreme Administrative Court dismissed a further cassation appeal. II. RELEVANT DOMESTIC LAW AND PRACTICE 47. The legal provisions applicable at the material time and questions of practice are set out in paragraphs 60-65 of the judgment delivered by the Court on 17 October 2006 in the case of Grabiński v. Poland (application no. 43702/02). THE LAW I. THE GOVERNMENT'S REQUEST THAT THE COURT STRIKE OUT PART OF THE APPLICATION UNDER ARTICLE 37 OF THE CONVENTION 48. On 2 February 2009 the Government submitted a unilateral declaration similar to that in the case of Tahsin Acar v. Turkey (preliminary objection) [GC], no. 26307/95, ECHR 2003-VI) and informed the Court that they were prepared to accept that there had been a violation of the applicant's rights under Article 6 § 1 of the Convention as a result of the unreasonable length of the administrative proceedings. In respect of non‑pecuniary damage, the Government proposed to award the applicant EUR 3,600. The Government invited the Court to strike out the application in accordance with Article 37 of the Convention. 49. The applicant did not agree with the Government's proposal and requested the Court to examine the case. 50. The Court observes that, as it has already held on many occasions, it may be appropriate under certain circumstances to strike out an application or part thereof under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration by the respondent Government even if the applicant wishes the examination of the case to be continued. It will depend on the particular circumstances whether the unilateral declaration offers a sufficient basis for finding that respect for human rights as defined in the Convention and its Protocols does not require the Court to continue its examination of the case (see Tahsin Acar, cited above, § 75, and Melnic v. Moldova, no. 6923/03, § 22, 14 November 2006). 51. According to the Court's case-law, the amount proposed in a unilateral declaration may be considered a sufficient basis for striking out an application or part thereof. The Court will have regard in this connection to the compatibility of the amount with its own awards in similar cases, bearing in mind the principles which it has developed for determining victim status and for assessing the amount of non-pecuniary compensation to be awarded (see Cocchiarella v. Italy [GC], no. 64886/01, §§ 85-107, ECHR 2006-...,; Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 193-215, ECHR-2006-...; Dubjakova v. Slovakia (dec.), no. 67299/01, 10 October 2004; and Arvanitaki-Roboti and Others v. Greece [GC], no. 27278/03, §§ 27‑32, ECHR 2008-...). 52. On the facts and for the reasons set out above, in particular the low amount of compensation proposed which is substantially less than the Court would award in a similar case, the Court finds that the Government have failed to provide a sufficient basis for concluding that respect for human rights as defined in the Convention and its Protocols does not require it to continue its examination of the length of proceedings complaint (see, a contrario, Spółka z o.o. WAZA v. Poland (striking out), no. 11602/02, 26 June 2007). 53. This being so, the Court rejects the Government's request that it strike part of the application out of its list of cases under Article 37 of the Convention and will accordingly pursue its examination of the admissibility and merits of the case as a whole. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 54. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 55. The Government contested that argument. 56. The Court notes that the proceedings commenced on 1 October 1992, when S.P., acting on behalf of the applicant's family, filed an application for annulment of the administrative decisions refusing the grant of temporary ownership. However, the period to be taken into consideration began only on 1 May 1993, when the recognition by Poland of the right of individual petition took effect. Nevertheless, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings at the time. 57. The period in question has not yet ended. It has thus lasted 16 years and over 3 months. A. Admissibility 58. 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 parties' submissions 59. None of the parties commented on the merits of the case. 2. The Court's assessment 60. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 61. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Grabinski §, cited above). 62. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. 63. There has accordingly been a breach of Article 6 § 1. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 64. The applicant complained that he did not have at his disposal the effective remedy against the decisions of administrative authorities. 65. The Court has already dealt with this issue in previous cases. In particular it has held that the expression “effective remedy” used in Article 13 cannot be interpreted as a remedy bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of a complaint (see Figiel v. Poland (no. 2), no. 38206/05, § 33, 16 September 2008). 66. The fact that in the present case the applicant's claim for the grant of perpetual use of land is still pending does not in itself render the combination of remedies available in administrative proceedings incompatible with Article 13 (see, Grabinski v. Poland (dec.) no. 43702/02, 18 October 2005). 67. In the light of the foregoing, the Court considers that in the circumstances of the present case it cannot be said that the applicant's right to an effective remedy under Article 13 of the Convention has not been respected. 68. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION. 69. The applicant also complained under Article 1 of Protocol No. 1 to the Convention that his family had been deprived of the property owned by them and that the application for the grant of the right of perpetual use has not been finally determined. 70. The Court observes that the domestic proceedings to determine the applicant's claim are currently pending before the Mayor of Warsaw. Therefore, in so far as the applicant relies on Article 1 of Protocol No. 1 to the Convention, the Court considers that it would be premature to take a position on the substance of this complaint. It follows that the complaint must be rejected for non-exhaustion of domestic remedies in accordance with Article 35 §§ 1 and 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 71. 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 72. In her application submitted to the Court the applicant claimed 100,000 euros (EUR) in respect of non‑pecuniary damage. 73. The Government did not express any comment on this issue. 74. The Court considers that the applicant must have sustained non‑pecuniary damage. Ruling on an equitable basis, it awards her EUR 10,000 under that head. B. Costs and expenses 75. The applicant did not make any claim under this head. C. Default interest 76. 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 1 Dismisses the Government's request to strike the length of proceedings complaint out of the list; 2. Declares the complaint under Article 6 § 1 admissible and the remainder of the application inadmissible; 3. Holds that there has been a violation of Article 6 § 1 of the Convention; 4. Holds (a) that the respondent State is to pay to the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 10,000 (ten thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, 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 amount 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 applicant's claim for just satisfaction. Done in English, and notified in writing on 20 October 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyNicolas BratzaRegistrarPresident

FIRST SECTION CASE OF RAHMANOVA v. AZERBAIJAN (Application no. 34640/02) JUDGMENT STRASBOURG 10 July 2008 FINAL 10/10/2008 This judgment is final but it may be subject to editorial revision. 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 Rahmanova v. Azerbaijan, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Anatoly Kovler,Elisabeth Steiner,Khanlar Hajiyev,Dean Spielmann,Sverre Erik Jebens, judges,and André Wampach, Deputy Section Registrar, Having deliberated in private on 19 June 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 34640/02) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Azerbaijani national, Mrs Leyli Pasha qizi Rahmanova (Leyli Paşa qızı Rəhmanova – “the applicant”), on 5 September 2002. 2. The applicant was represented by Mr N. Abdullayev, a lawyer practising in Baku. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr C. Asgarov. 3. The applicant alleged that the quashing of the final judicial decision in her favour by way of the procedure of additional cassation had violated her rights under Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention. 4. By a decision of 1 September 2005 the Court declared the application admissible. 5. The applicant and the Government each filed observations on the merits (Rule 59 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. Facts leading to litigation 6. The applicant was born in 1938 and lives in Baku. 7. She owned a three-room apartment in Baku. In 1991, after getting married, the applicant’s son and his wife (G.R.) moved into the applicant’s apartment. After some time, the applicant’s relations with G.R. started to deteriorate. For this reason, the family decided to divide the apartment, with two rooms taken by the applicant and the remaining one room by her son and G.R. 8. In 1995 they decided to sell the apartment, divide the proceeds and live separately thereafter. After the sale of the apartment, the applicant used her part of the proceeds to purchase herself a new, smaller apartment, where she began to live alone. Her son and G.R. used their part of the proceeds to pay off their debts and resided temporarily in various places. 9. According to the applicant, in 1996 her son asked her to temporarily register him and his family in her new apartment as co-residents. He explained that without proper residence documents he was unable to get a job. The applicant allowed her son and G.R. to register temporarily, for a term of one year, as co-residents in her apartment. However, according to the applicant, pursuant to their agreement, her son and G.R. never moved in and never lived in the apartment. Later, the applicant successfully applied for their removal from the relevant registration records. 10. In 2001 the applicant’s son and G.R. divorced. They had two children who appear to have stayed in G.R.’s custody. B. Original proceedings 11. In 2000 G.R. filed a lawsuit, claiming the right to reside in the applicant’s apartment with her children and requesting the court to order their re-registration in the apartment as the applicant’s co-residents. On 24 July 2000 the Narimanov District Court upheld G.R.’s claim and recognised her and her children’s residence rights to the apartment. 12. Upon an appeal by the applicant, on 29 August 2000 the Baku City Court (the court of cassation under the old civil procedure laws effective at that time) quashed the district court’s judgment, finding that it had not assessed all the relevant facts of the case. The case was remitted for re-trial at the first instance. 13. After re-trial, on 8 December 2000 the Narimanov District Court ruled in the applicant’s favour and dismissed G.R.’s claims. It found that G.R. had failed to produce sufficient evidence supporting her claims to the apartment. 14. On 27 March 2001 the Court of Appeal, in the absence of the applicant, set aside the district court’s second judgment and ruled in G.R.’s favour. Contrary to the applicant’s arguments, it determined that G.R. had permanent registration in the disputed apartment and, therefore, had residence rights. 15. Upon the applicant’s appeal in cassation, on 4 July 2001 the Supreme Court quashed the Court of Appeal’s judgment. It found that the Court of Appeal had breached the procedural rules by hearing the case in the applicant’s absence. Furthermore, it found that the Court of Appeal had failed to consider certain crucial facts, including the fact that G.R. had allegedly never resided in the disputed apartment. The case was remitted back to the Court of Appeal for re-examination. 16. On 11 October 2001 the Court of Appeal found that G.R.’s registration in the disputed apartment had been temporary, that she had never lived there and never engaged in joint household activities with the applicant. Thus, relying on the relevant provisions of the Housing Code, the court held that G.R. had never acquired residence rights to the apartment. Accordingly, it dismissed G.R.’s appeal and upheld the district court’s ruling of 8 December 2000 in favour of the applicant. 17. On 11 January 2002 the Supreme Court upheld the Court of Appeal’s judgment. The Supreme Court’s decision became final and enforceable upon its delivery. C. Reopening of the proceedings 18. Having disagreed with the outcome of the proceedings in the domestic courts, G.R. filed an additional cassation appeal asking for a review of the Supreme Court’s final decision by the Plenum of the Supreme Court (“the Plenum”). By a letter of 14 May 2002, the President of the Supreme Court rejected G.R.’s request, finding no grounds for reopening the proceedings in the Plenum and confirming the correctness of the Supreme Court’s decision. 19. However, contrary to the rejection letter of 14 May 2002 and under circumstances unknown to the applicant, on 19 July 2002 the case was actually referred to and reviewed by the Plenum. At that time, more than six months had passed from the Supreme Court’s decision of 11 January 2002. 20. The Plenum noted that the main argument for the lower courts’ decisions in the applicant’s favour had been that G.R. and her children had never lived in the apartment. It deemed that, under domestic law, this fact was an insufficient basis for adjudging the case in the applicant’s favour. The Plenum further found that the lower courts had misapplied the domestic law and failed to establish the facts necessary for applying the appropriate legal provisions. It held that, instead, it would be proper to apply Articles 60 and 87 of the Housing Code, as well as the decision of the Constitutional Court of 12 March 1999 on the interpretation of Article 60 of the Housing Code. In accordance with these provisions, the Plenum found that the facts of the case did not establish grounds for G.R.’s loss of residence rights to the apartment. 21. In conclusion, the Plenum “varied” the Supreme Court’s decision of 11 January 2002 and ordered that G.R. and her children be allowed to move into the applicant’s apartment. D. Latest developments in the case 22. On 8 January 2005 the applicant sold the apartment to G.R. The sale contract was certified by a notary public. According to the contract, the purchase price was 140,000,000 Azerbaijani manats. On 24 February 2005 G.R. obtained an ownership certificate to the apartment as its sole owner. 23. It appears that the applicant moved out of the apartment after the sale and established residence elsewhere. 24. In October 2006 the applicant challenged the validity of the sale contract of 8 January 2005 in the domestic courts. She relied on two arguments. First, she argued that she had not known that she was signing a contract concerning the sale of the apartment, because G.R. had lied to her about the nature of the contract. Second, the applicant argued that the contract had been drafted in the new Latin alphabet[1], which she allegedly did not know how to read. 25. Following a series of appeals, on 20 November 2007 the Supreme Court upheld the lower courts’ ruling dismissing the applicant’s claim. It held that the claim was unsubstantiated as there was sufficient evidence in the case file proving that the sale contract was valid and that she had sold and moved out of the apartment voluntarily. It found that the contract had been duly concluded in the presence of a notary public. The court further noted that, shortly after the sale, the applicant applied for the removal of her name from the apartment’s registration documents and that, from 4 April 2005, she had been registered as a resident of another apartment pursuant to her own application. It further noted the existence of documentary evidence showing that, after the sale, G.R. and her children were registered as residents in the disputed apartment and that G.R. paid all the communal charges for the apartment. II. RELEVANT DOMESTIC LAW A. Legislation 26. The Law on Courts and Judges of 1997 provides as follows: Article 77. The Supreme Court “[T]he Supreme Court shall be the highest judicial authority with regard to civil ..., criminal, administrative and other disputes falling within the jurisdiction of the general and specialised courts. The Supreme Court [is] a court of cassation instance ...” Article 79. The Plenum of the Supreme Court and its competence “The Plenum of the Supreme Court shall be composed of the President, Vice Presidents and judges of the Supreme Court, the President of the Economic Court, the President of the Court of Appeal and the President of the Supreme Court of the Nakhchivan Autonomous Republic. ... The Plenum of the Supreme Court ... shall, in the manner established by law, review cases under the procedure of additional cassation ..., on submission of the President of the Supreme Court, or pursuant to a protest by the Chief Prosecutor or appeal by the defendant ...” Article 83. The competence of the President of the Supreme Court “The President of the Supreme Court ... shall, in cases and under the procedure provided by law, submit cassation-instance decisions for the review of the Plenum of the Supreme Court ...” 27. The Code of Civil Procedure of the Republic of Azerbaijan of 2000 provides as follows: Article 419. The decision of the cassation-instance court “419.4. The decision [of the cassation-instance court] shall enter into force from the moment of its delivery.” Article 422. Review of cassation-instance decisions “Decisions of the Supreme Court of the Republic of Azerbaijan ... may be reviewed by the Plenum of the Supreme Court of the Republic of Azerbaijan under the procedure of additional cassation upon a submission, appeal or protest.” Article 423. The right to file a submission, appeal or protest “A submission concerning a decision of the Supreme Court of the Republic of Azerbaijan ... may be made by the President of the Supreme Court on the basis of an application by persons non-parties to the case whose interests are affected by the judicial acts. An appeal may be filed by a party to the case represented by an advocate. [A protest may be filed by the Chief Prosecutor in certain specified circumstances.]” Article 424. The grounds for review by the Plenum of the Supreme Court “424.1. The Plenum considers cases exclusively on the points of law. 424.2. The grounds for quashing decisions of the cassation-instance court are the following: 424.2.1. the decision of the cassation-instance court is based on a legal norm declared unconstitutional by the Constitutional Court; 424.2.2. the cassation-instance court’s ruling infringes the rights of persons who were not a party to the proceedings; 424.2.3. there is no substantive basis for the reasons referred to in the decision of the cassation-instance court; 424.2.4. the resolutive part of the decision of the cassation-instance court does not correspond to its descriptive and reasoning parts.” Article 426. Referral of a submission, appeal or protest [to the Plenum] “426.1. If appropriate grounds exist, the President [of the Supreme Court] shall refer the submission, appeal or protest, together with the case file, to the Plenum of the Supreme Court. 426.2. The submission, appeal or protest shall be filed within two months after the date of delivery of the [relevant] decision of the Supreme Court. ...” Article 429. The competence of the Plenum of the Supreme Court “429.0. Upon review of a case under the procedure of additional cassation, the Plenum of the Supreme Court has the competence to: ... 429.0.1. uphold the decision of the cassation-instance court and dismiss the submission, appeal or protest; 429.0.2. vary the decision of the cassation-instance court; 429.0.3. quash, in full or in part, the decision of the cassation-instance court, as well as the related decision of the appellate court, and remit the case for re-examination by the appellate court; ...” B. Position of the Constitutional Court 28. In its decision On review of the conformity of the decision of the Plenum of the Supreme Court of 1 February 2002 to the Constitution and laws of the Republic of Azerbaijan, based on the complaint by A.H. Zalov, dated 21 May 2004, the Constitutional Court expressed its position concerning the competence of the Plenum of the Supreme Court to vary the final decisions of the Supreme Court under the procedure of additional cassation. 29. The Constitutional Court acknowledged that, according to Article 429.0.2 of the CCP, the Plenum of the Supreme Court was empowered to vary (that is, introduce amendments to) the decision of the cassation‑instance court. However, amendments made in such a manner could comprise only matters that were not related to the merits of the case. The Plenum of the Supreme Court could vary the cassation-instance court’s decision only if the factual circumstances of the case had been fully established by the lower courts, and if there was no need for a new inquiry into the circumstances of the case, re-assessment of evidence or examination of additional evidence. Since the cassation-instance court could not examine the case on points of fact, it followed that the Plenum of the Supreme Court could not vary the cassation-instance court’s decision relying upon the factual circumstances of the case either. 30. The Constitutional Court further held that, unlike the first-instance and appellate courts, the courts of cassation and additional cassation did not have competence to deliver a judgment on the merits. If, during the additional-cassation review, the Plenum of the Supreme Court found that the circumstances of the case had not been clearly established during the original proceedings and that it was necessary to admit and assess additional evidence, the Plenum had to quash the erroneous decision of the Supreme Court, as well as the related judgment of the Court of Appeal, and remit the case for re-examination in the Court of Appeal. Accordingly, if it discovered judicial errors in the Supreme Court’s decision, the Plenum of the Supreme Court had no competence to rule on the merits, thus substituting its own judgment for the judgment of the lower courts, but was obligated to remit the case to the appropriate judicial instance. C. Domestic practice 31. Additional cassation proceedings in the Plenum of the Supreme Court can be initiated at the discretion of the President of the Supreme Court, and may be done so following a motion (an additional cassation appeal) by a party to the proceedings. The Plenum itself does not take a decision on the reopening of the proceedings and admissibility of additional cassation appeals. 32. An additional cassation appeal is first submitted to the President of the Supreme Court. The President, at his or her sole discretion and without holding any formal judicial hearing, decides if there are any grounds to reopen the case and transmit the appeal to the Plenum. If the President decides that the proceedings should be reopened, he or she then transmits the additional cassation appeal, together with the case file, for the in‑substance review of the Plenum at its next sitting. Meanwhile, if necessary, the President may issue an order suspending the execution of the final judgment pending the review of the case by the Plenum. 33. If the President deems that there are no grounds for additional cassation review, he or she sends a rejection letter to the applicant, briefly describing the reasons for the refusal to reopen the proceedings and to transmit the appeal to the Plenum. THE LAW I. THE GOVERNMENT’S PRELIMINARY OBJECTIONS A. The parties’ submissions 34. On 31 May 2006 the Government informed the Court for the first time about the fact that the applicant had sold her apartment on 8 January 2005 and was no longer its owner (see paragraphs 22-23 above). Although the sale had taken place prior to the Court’s decision on admissibility in the present case, the applicant had failed to inform the Court about it and the Court examined the admissibility of the applicant’s complaints without knowledge of this fact. The Government claimed to have likewise had no knowledge of this fact prior to the Court’s decision on admissibility. 35. Relying on Rule 47 of the Rules of Court, the Government argued that the applicant’s failure to disclose all the facts of the case amounted to an abuse of the right of petition under Article 35 § 3 of the Convention. Alternatively, the Government argued that the applicant was no longer a victim of the alleged violations (in particular, the alleged violation of Article 1 of Protocol No. 1 to the Convention) within the meaning of Article 34 of the Convention, because the private sale of the apartment led to a situation where it would no longer be possible for the State to “restore” the applicant’s property rights to her. 36. Asked by the Court to comment on the Government’s objections, the applicant replied that she had not been aware that she had, in fact, concluded a sale contract with G.R. on 8 January 2005. Therefore, she could not have informed the Court about this fact because she had not been aware of it. She maintained that she had been defrauded by G.R. and forced to sign the contract without understanding its true nature. She had allegedly been led to believe that she was signing a contract relating to a different matter. She also claimed that she could not understand the text of the contract that she had signed because she could not read or write in the new Latin alphabet. B. The Court’s assessment 37. The Court reiterates that, pursuant to Rule 55 of the Rules of Court, any plea of inadmissibility must be made by the respondent Party in its observations on the admissibility of the application, in so far as its character and the circumstances permit. Unless there are particular reasons which would have absolved the Government from raising their objection in the proceedings on admissibility, they are stopped from doing so at a later stage (see Akimova v. Azerbaijan, no. 19853/03, § 32, 27 September 2007). In the present case, however, the Court accepts the Government’s argument that they had no knowledge of the fact of the apartment’s sale prior to the Court’s decision on admissibility. As it was a transaction between private parties and the applicant’s court action challenging its validity took place after the Court’s decision on admissibility, it is reasonable to make an inference that the Government may not have been immediately aware of it. Accordingly, it cannot be concluded that the Government are stopped from raising their objections at this stage of the proceedings. The Court will therefore proceed to examine them. 38. As to the Government’s argument concerning abuse of the right of petition, the Court reiterates that, according to Rule 47 § 6 of the Rules of Court, applicants shall keep the Court informed of all circumstances relevant to the application. An application may be rejected as abusive under Article 35 § 3 of the Convention if, among other reasons, it was knowingly based on untrue facts (see Varbanov v. Bulgaria no. 31365/96, § 36, ECHR 2000-X; Řehák v. Czech Republic (dec.), no. 67208/01, 18 May 2004; and Kérétchachvili v. Georgia (dec.), no. 5667/02, 2 May 2006). Incomplete and therefore misleading information may also amount to abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see Hüttner v. Germany (dec.), no. 23130/04, 19 June 2006). 39. In the present case, it indeed seems that the applicant failed to disclose and subsequently misrepresented the information concerning the sale of the apartment. The Court notes that after it had asked the applicant to comment on the Government’s objections concerning her failure to disclose this information, she attempted to challenge the validity of the sale contract in the domestic courts. At the outcome of those proceedings, it was found that the contract was valid and that, accordingly, the applicant had been fully aware of the nature of the contract at the time it was concluded (see paragraphs 24-25 above). In the absence of any indication that these proceedings were somehow unfair or arbitrary, the Court accepts the factual findings of the domestic courts in those proceedings. 40. Moreover, as it appears from the materials made available to the Court, shortly after the sale of her title to the apartment the applicant had changed the registration of her residence from the disputed apartment to another by filing the necessary applications with the relevant authorities. Therefore, whereas the facts of the case show that the applicant had voluntarily applied to change her residence records and moved out of the sold apartment, the Court finds it difficult to believe her submission that she had no intention to sell her apartment and that she had concluded the sale contract without the knowledge that it was in fact a sale contract. It is equally difficult to accept the applicant’s argument that she could not read or write Azeri in the Latin alphabet, taking into account the fact that her initial application to the Court was drafted using the Latin alphabet by the applicant herself at the stage when she was not yet represented by a lawyer. 41. Nevertheless, the Court is of the opinion that the applicant’s failure to disclose the information concerning the subsequent sale of her title to the apartment, even if intentional, cannot be considered as amounting to abuse of the right of petition. The withheld information did not concern “the very core of the case” and was not directly relevant to any of the applicant’s complaints. The mere fact that the applicant sold the apartment at a later date, pursuant to a private agreement, was not capable of changing the Court’s reasoning, both in its decision on admissibility and in the present judgment, with regard to the alleged violation of the applicant’s rights due to the Plenum’s decision of 19 July 2002. 42. Likewise, the Court cannot agree with the objection that the applicant can no longer be considered a victim of the alleged violation of Article 1 of Protocol No. 1 to the Convention. The applicant’s complaint concerns the restriction of her property rights to the apartment by the Plenum’s decision of 19 July 2002. Although it is undisputed that after the alleged interference the applicant still remained the apartment’s title holder, her property rights to it were allegedly restricted after the Plenum’s decision. The fact that she subsequently sold her title to the apartment does not deprive her of the status of a victim during the period prior to this sale. 43. For the above reasons, the Court rejects the Government’s preliminary objections. II. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION 44. The applicant complained that the reopening of the proceedings and the decision of the Supreme Court’s Plenum of 19 July 2002 had violated her rights under Articles 6 § 1 and 13 of the Convention. In particular, she maintained that the reopening of the proceedings and setting aside of the final decision of 11 January 2002 set at naught the entire judicial process that had ended in her favour. She also complained that she had not been informed about the referral of the case to the Plenum and had not been invited to attend the hearing. Lastly, she complained that the Plenum had exceeded its competence by examining the case on points of fact and delivering a new judgment on the merits. Article 6 § 1 of the Convention provides as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” Article 13 of the Convention provides as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. The parties’ submissions 45. The Government argued that the reopening of the proceedings had been carried out in a lawful manner. Even though the President of the Supreme Court initially rejected G.R.’s request for a reopening of the proceedings, the Plenum nevertheless had competence to decide, of its own motion, to reopen the proceedings and to examine the case. There was no provision in the domestic law prohibiting the referral of the additional cassation appeal to the Plenum despite a prior refusal by the Supreme Court’s President to re-open the proceedings. 46. The Government further submitted that Article 426.2 of the Code of Civil Procedure (“the CCP”) provided for a two-month deadline for filing an additional cassation appeal. However, the domestic law did not establish any time-limits for examination of such an appeal by the Plenum. 47. As to the Plenum’s competence to vary the Supreme Court’s final decision, the Government maintained that the Plenum had not exceeded its competence, because under Article 429.0.2 of the CCP it was specifically empowered to do so. According to the Government, the Plenum examined the case exclusively on the points of law. It did not establish any new facts, but simply assessed the facts as established by the domestic courts and applied another set of domestic legal provisions to those facts. 48. The applicant submitted that, in accordance with the domestic law, the reopening of the proceedings and referral of the case to the Plenum was within the exclusive competence of the Supreme Court’s President. Any additional cassation appeal was to be submitted to the Supreme Court’s President and not directly to the Plenum. The Plenum had no competence to examine the case of its own motion in the absence of a referral by the President of the Supreme Court. Accordingly, the applicant submitted that the examination of the case by the Plenum after the Supreme Court’s President’s refusal to reopen the proceedings had been unlawful under the domestic law and in breach of her right to a fair trial under Article 6 § 1 of the Convention and right to an effective remedy under Article 13 of the Convention. 49. The applicant acknowledged that, in accordance with Article 429.0.2 of the CCP, the Plenum had competence to vary the final decision of the court of cassation instance. However, she disagreed with the Government as to the scope and extent of the Plenum’s power to vary the cassation decision in the manner specified under that provision. Specifically, relying on the case-law of the Constitutional Court, she maintained that the Plenum was empowered to vary the Supreme Court’s final decision only when the amendments introduced by the Plenum would not interfere with the merits of the case and would not alter the conclusions reached. On the other hand, if the Plenum found the Supreme Court’s decision on the merits incorrect or unlawful, it should have quashed it and remitted the case to the Court of Appeal for a new examination on the merits. 50. The applicant further submitted that the Plenum had, in essence, examined the case on points of fact, which was outside its competence. In its decision, the Plenum had given its own assessment as to the facts of the case and relied on a different set of domestic legal provisions, which required a new round of fact-finding within the framework of an adversarial judicial process. However, the Plenum delivered its decision without remitting the case to the Court of Appeal for an examination of the relevant factual circumstances. In essence, under the guise of “varying” the Supreme Court’s decision, the Plenum issued a new judgment on the merits upholding G.R.’s claim in full and, thus, set at naught the entire judicial process that had ended in the applicant’s favour. B. The Court’s assessment 51. The Court considers that the present complaints concern two distinct, albeit related, sets of issues. The first, substantive, issue raises a question whether the quashing of a final judgment under the procedure of additional cassation in the present case was in itself compatible with the applicant’s “right to court” under the Convention. The second, procedural, set of issues concerns the question whether the alleged procedural defects during the review of the applicant’s case by the Plenum violated her rights to a fair trial and effective remedy. 1. Substantive issue 52. At the outset, having regard to the differences in the parties’ opinions concerning this matter, the Court considers that it is necessary to assess the scope and consequences of the Plenum’s decision. In doing so, it will look behind appearances and investigate the realities of the situation complained of. 53. The Court notes that, formally, the Plenum “varied” the Supreme Court’s decision of 11 January 2002 in accordance with Article 429.0.2 of the CCP. This raises a question as to what extent such “varying” differed in its legal consequences from the simple quashing of the final decision. The Court takes note of the ruling of the Constitutional Court of Azerbaijan, according to which Article 429.0.2 of the CCP did not empower the Plenum to “vary” the Supreme Court’s decisions based on a finding of errors of fact or law, as this would, in essence, constitute a new judgment on the merits of the case. Instead, in such a situation, the Plenum had to remit the case for re‑examination. It therefore follows that, relying on Article 429.0.2 of the CCP, the Plenum could make only technical changes to the Supreme Court’s decisions that would not interfere with the substantive conclusion on the merits of the case. 54. The Court notes, however, that in the present case the substance of the Plenum’s decision involved a direct examination of the merits of the case and comprised both an assessment of the factual circumstances of the case and the application of the relevant domestic law to those facts. Furthermore, following such an examination, the Plenum “varied” the operative part of the original judgment which had been in the applicant’s favour in that it dismissed G.R.’s claim. The Plenum upheld G.R.’s claim in full and thus reversed the ruling in G.R.’s favour. In such circumstances, the Court considers that the Plenum’s decision, albeit characterised as merely “varying” the existing judicial ruling, in essence quashed the final decision of 11 January 2002 and constituted a new judgment on the merits of the case. 55. Accordingly, the Court will base its analysis under Article 6 of the Convention below on the premise that the Plenum quashed the final domestic decision and delivered a new judgment on the merits, ruling against the applicant. 56. The Court reiterates that the right to a fair hearing before a tribunal as guaranteed by Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention, which declares, in its relevant part, the rule of law to be part of the common heritage of the Contracting States. One of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, among other things, that where the courts have finally determined an issue, their ruling should not be called into question (see Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999‑VII). 57. Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way it embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect. However, that right would be illusory if a Contracting State’s domestic legal system allowed a final and binding judicial decision to be quashed by a higher court on an application made by a State official whose power to lodge such an application is not subject to any time-limit, with the result that the judgments were liable to challenge indefinitely (see Ryabykh v. Russia, no. 52854/99, §§ 54-56, ECHR 2003-X). 58. The Court has previously found a violation of the principle of legal certainty and an applicant’s “right to court” in many cases in which a judicial decision that had become final and binding was subsequently quashed by a higher court on an application by a State official whose power to intervene was not subject to any time-limit (see, among many other authorities, Brumărescu, cited above, §§ 61-65; Ryabykh, cited above, §§ 51-56; Volkova v. Russia, no. 48758/99, §§ 34-36, 5 April 2005; and Kutepov and Anikeyenko v. Russia, no. 68029/01, §§ 48-52, 25 October 2005). 59. Admittedly, the procedure of additional cassation under Azerbaijani law had certain characteristic features which were distinct from those examined by the Court in the cases cited in the above paragraph. First, the initial motion to reopen the proceedings under the procedure of additional cassation could be made by one of the parties to the proceedings in the form of an additional cassation appeal, although the decision whether to submit the case for the Plenum’s review was ultimately within the discretionary power of the Supreme Court’s President (see Articles 423 and 426 of the CCP and Article 83 of the Law on Courts and Judges). Second, there was a two-month time-limit for filing an additional cassation appeal and re‑opening of the proceedings (see Article 426.2 of the CCP). However, following such an appeal, there appeared to be no specific time-limit for the actual review of the case by the Plenum. Third, the procedure of additional cassation could be initiated only when the ordinary appeals had been exhausted, that is, after the delivery of a final decision by the court of cassation instance, and could not be used to obtain a review of judgments of first-instance or appellate courts which had become final (see Article 422 of the CCP). 60. These distinctions, however, are not of crucial importance. What is relevant in the present case is that the procedure of additional cassation allowed a final and binding judicial decision to be quashed on the ground that the substantive law had not been applied correctly by the ordinary civil courts. 61. In this regard, the Court observes that, under the domestic law, the highest judicial authority in Azerbaijan for ordinary appeals in civil proceedings was the Supreme Court, as a court of cassation instance (see Article 77 of the Law on Courts and Judges and Article 419 of the CCP). The judgment concerning the applicant’s case became final and the civil proceedings were terminated upon the delivery of the Supreme Court’s decision of 11 January 2002. Thereafter, there was no higher judicial instance to which the parties would have direct access. In this connection, the Court reaffirms its previous finding that the procedure of additional cassation, available after the Supreme Court’s final decision, constituted in its essence an indirect, extraordinary appeal (see Babayev v. Azerbaijan (dec.), no. 36454/03, 27 May 2004). 62. The Court reiterates that the principle of legal certainty insists that no party is entitled to seek a reopening of proceedings merely for the purpose of a rehearing and a fresh examination of the case. The power to quash or alter binding and enforceable judicial decisions should be exercised to correct fundamental defects, but not to carry out a fresh examination. The review should not constitute an appeal in disguise, and the mere possibility of there being two views on the subject is not a ground for re-examination. Departures from that principle are justified only when made necessary by circumstances of a substantial and compelling character (see Ryabykh, cited above, § 52, and Kot v. Russia, no. 20887/03, § 24, 18 January 2007). 63. The Court observes that, before the additional cassation proceedings were instituted, the merits of the applicant’s case had been examined in ordinary civil proceedings before the first-instance, appellate and cassation courts and such examination resulted in the Supreme Court’s final decision of 11 January 2002 upholding the lower courts’ judgments in the applicant’s favour. However, this final decision was quashed, and its ruling reversed, by the Plenum solely on the ground that the substantive law had been incorrectly applied. It was not claimed or established during the additional cassation proceedings that the domestic courts of three levels of jurisdiction acted outside their competences or that there was a fundamental defect in the proceedings before them. 64. It is unavoidable that in civil proceedings the parties would have conflicting views on the application of the substantive law. The domestic courts are called upon to examine their arguments in a fair and adversarial manner and make their assessment of the claim. The fact that the Supreme Court’s President and Plenum disagreed with the assessment made by the domestic courts was not, in itself, an exceptional circumstance warranting the reopening of the proceedings concerning the applicant’s case and using this extraordinary remedy to set aside a binding and enforceable judgment (compare with Kot, cited above, § 29). 65. Having regard to these considerations, the Court finds that, by quashing the Supreme Court’s final decision of 11 January 2002, the Plenum of the Supreme Court infringed the principle of legal certainty and the applicant’s “right to court” under Article 6 § 1 of the Convention. There has accordingly been a violation of that Article. 2. Procedural issues 66. With regard to the applicant’s further complaints about the procedural defects of the proceedings before the Plenum of the Supreme Court, the Court considers that, having concluded that there has been an infringement of the applicant’s “right to court” by the very use of the additional cassation procedure, it is not necessary to examine additionally whether the procedural guarantees of Article 6 were respected in those proceedings (compare with Ryabykh, cited above, § 59). 67. The Court finds that it is likewise not necessary to examine the present complaint separately under Article 13 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 68. The applicant complained that the decision of the Supreme Court’s Plenum of 19 July 2002 had interfered with the exercise of her property rights to her apartment in breach of Article 1 of Protocol No. 1 to the Convention, which provides as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 69. The Government denied that there had been any interference with the applicant’s property rights, because the Plenum had not deprived her of her right to reside in the apartment. The Government maintained that the Plenum’s decision to grant G.R. co-residence rights had been lawful, because it “ensured the right of a family member to reside at the owner’s place after the family relationship had been terminated”. 70. The applicant reiterated her complaint. 71. It is undisputed that the applicant had a “possession” for the purposes of Article 1 of Protocol No. 1. At the outcome of the original civil proceedings which ended with the Supreme Court’s final decision of 11 January 2002, the applicant was found to be the sole lawful owner and resident of the apartment and all of G.R.’s claims to the apartment were dismissed. Relying on the final outcome of these proceedings, the applicant could have legitimately expected to have peaceful enjoyment of her possession. 72. The Court reiterates that the quashing of a final judgment which recognised the applicant’s right to peacefully enjoy his or her possessions constitutes an interference with that right (see Brumărescu, cited above, § 74). In the present case, the Plenum of the Supreme Court quashed the Supreme Court’s final decision of 11 January 2002 and granted G.R.’s claim in full. Although after the Plenum’s decision the applicant technically retained the title to the apartment, she was now required, inter alia, to give up space in the apartment for G.R. to reside, as well as to seek the consent of the latter, as a registered co-resident, for future transactions involving the apartment. The applicant could no longer enjoy unrestricted rights to possess, use and dispose of her property free of all encumbrances, which had been confirmed by the final decision 11 January 2002. Accordingly, the quashing of the final and binding judicial decision frustrated the applicant’s reliance on it and deprived her of the possibility to peacefully enjoy her possession. 73. Article 1 of Protocol No. 1 provides that such interference with the peaceful enjoyment of possessions can be justified only if it is shown, inter alia, to be “in the public interest” and “subject to the conditions provided by law”. The Court observes that neither the Plenum of the Supreme Court itself nor the Government have sought to offer any justification for the interference that has taken place in the present case. In these circumstances, the Court considers that the quashing of the final domestic decision by way of the additional cassation procedure placed an excessive burden on the applicant and was therefore incompatible with Article 1 of Protocol No. 1 (compare with Brumărescu, cited above, §§ 77-79, and Kot, cited above, § 33). There has therefore been a violation of that Article. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 74. 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.” 75. Having been asked to submit her just satisfaction claims in accordance with Rule 60 of the Rules of Court, the applicant replied that she claimed just satisfaction and referred to the original claims she set out in her application form lodged with the Court on 5 September 2002. The Court will therefore have regard to the amounts claimed in the application form. A. Damage 1. Pecuniary damage 76. The applicant claimed 20,000 United States Dollars (USD) in respect of pecuniary damage. According to the applicant, this amount included the value of her apartment (as of 2002) as well as the expenses she incurred in the domestic court proceedings (see below). 77. The Government submitted that the applicant was not entitled to any pecuniary damage because she had sold her apartment in January 2005 and received its sale price. 78. At the outset, the Court accepts that the applicant must have suffered some pecuniary damage due to the restriction of her property rights to the apartment. However, it would be inappropriate to award the applicant the full market value of the apartment as claimed by her, because even though the Plenum’s decision of 19 July 2002 resulted in restriction (and diminishment of the value) of her rights to possess, use and dispose of her property, she nevertheless retained the title to the apartment. In the circumstances of the present case, it could be more appropriate to award the applicant, inter alia, the difference between the full market value of the apartment at the time of its sale in 2005 and the price for which she sold her title to the apartment (assuming that this price was lower than the actual market value due to the restriction of the applicant’s property rights). 79. However, the Court points out that under Rule 60 of the Rules of the Court, any claim for just satisfaction must be itemised and submitted in writing together with the relevant supporting documents or vouchers, failing which the Court may reject the claim in whole or in part. The Court notes that, while the applicant claimed a combined amount of USD 20,000 for the value of the apartment and her expenses in the domestic proceedings, she failed to itemise this claim and specify the part of the claim which corresponded to the exact market value of the apartment. She also failed to submit any documents or evidence which would support her claims in respect of pecuniary damage. 80. In these circumstances, the Court concludes that the applicant failed to comply with Rule 60 of the Rules of Court and to submit relevant information which would enable the Court to assess the pecuniary damage suffered by her. It therefore rejects the applicant’s claim in respect of pecuniary damage. 2. Non-pecuniary damage 81. The applicant claimed USD 80,000 in respect of non-pecuniary damage. The Government did not submit any specific comments in this respect. 82. The Court considers that the applicant suffered distress and frustration as a result of the quashing of the judicial decision in her favour under the procedure of additional cassation. However, the amount claimed is excessive. Making its assessment on an equitable basis, the Court awards the applicant 2,000 euros in respect of non-pecuniary damage, plus any tax that may be chargeable on this amount. B. Costs and expenses 83. As noted above, the applicant claimed a combined amount of USD 20,000 in respect of both pecuniary damage and costs and expenses in the domestic proceedings. 84. The Government did not comment on this point. 85. The Court again notes that the applicant failed to duly itemise her claims and to specify what portion of the claimed amount corresponded to the costs and expenses which she had allegedly incurred. She also failed to submit any documentary evidence in support of her claim. The Court therefore rejects the applicant’s claim in respect of costs and expenses. C. Default interest 86. 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 1. Holds that there has been a violation of the applicant’s right to a court guaranteed by Article 6 § 1 of the Convention in that the final judicial decision was quashed under the procedure of additional cassation; 2. Holds that it is not necessary to examine the allegations of procedural unfairness of the additional cassation proceedings; 3. Holds that it is not necessary to examine separately the complaint under Article 13 of the Convention; 4. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 5. 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 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into New Azerbaijani manats 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 10 July 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. André WampachChristos RozakisDeputy RegistrarPresident [1]1.The writing system based on the Latin alphabet is currently used for the Azerbaijani language instead of the Cyrillic alphabet used prior to 1991.

SECOND SECTION CASE OF CHARAHILI v. TURKEY (Application no. 46605/07) JUDGMENT STRASBOURG 13 April 2010 FINAL 13/07/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Charahili v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Ireneu Cabral Barreto,Vladimiro Zagrebelsky,Danutė Jočienė,András Sajó,Işıl Karakaş,Nona Tsotsoria, judges,and Françoise Elens-Passos, Deputy Section Registrar, Having deliberated in private on 23 March 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 46605/07) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Tunisian national, Mr Malek Charahili (“the applicant”), on 25 October 2007. 2. The applicant, who had been granted legal aid, was represented by Mr A. Yılmaz, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent. 3. On 26 October 2007 the acting President of the Chamber to which the case had been allocated decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Government of Turkey, under Rule 39 of the Rules of Court, that the applicant should not be deported to Tunisia until further notice. 4. On 1 September 2008 the President of the Second Section decided to give notice of the application to the Government. It was also decided that the admissibility and merits of the application would be examined together (Article 29 § 3) and that the case would be given priority (Rule 41). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1986 and is currently held in the Kırklareli Foreigners' Admission and Accommodation Centre in Turkey. A. The applicant's arrival in Turkey and the criminal proceedings brought against him there 6. In 2003 the applicant left his home country and, via Libya, arrived in Syria, where he received religious training. Six months after his arrival in Syria, the applicant was detained for two months under the Syrian Government's policy of detaining and deporting nationals of North African countries. After his release from detention in Syria, the applicant left that country in March 2005 and arrived in Istanbul. He then went to Hatay, a province in the south of Turkey, where he began working. His identity documents were stolen and subsequently the applicant obtained a false passport. 7. On 15 August 2006 the applicant was arrested by police officers from the anti-terrorist branch of the Hatay police headquarters on suspicion of membership of an international terrorist organisation, namely Al-Qaeda. The search carried out in the apartment he had shared with another person revealed some materials used for manufacturing bombs. During his questioning by the police, in the presence of an interpreter, the applicant stated that he was not a member of Al-Qaeda but of Ennahda, an illegal organisation in Tunisia. 8. On 17 August 2006 the applicant made statements before the Adana public prosecutor and subsequently the Adana Magistrate's Court, which remanded the applicant in custody. 9. On 18 August 2006 the applicant lodged an objection against the detention order, which was dismissed on the same day. 10. On 14 September 2006 the Adana public prosecutor filed a bill of indictment with the Adana Assize Court charging the applicant with membership of Al-Qaeda under Article 314 of the Criminal Code and section 5 of Law no. 3713. In the indictment the public prosecutor noted, inter alia, that an arrest warrant had been issued in respect of the applicant in Tunisia for membership of Ennahda and that the applicant had left his country for that reason in 2003. 11. On 25 September 2006 the Adana Assize Court allowed the bill of indictment lodged against the applicant and decided to hold the first hearing on the merits of the case on 9 November 2006. 12. On 9 November 2006 the applicant made statements before the Assize Court. He contended, inter alia, that he did not have any connection with Al-Qaeda and that the material found in his apartment did not belong to him but to his flatmate. 13. On 25 January 2007 the applicant's representative requested the first-instance court to order the applicant's continued detention. He submitted in this respect that the applicant had applied to both the Turkish authorities and the United Nations High Commissioner for Refugees (UNHCR) to be granted refugee status and that, if he were released, he might be deported to Tunisia. The applicant himself also requested that he be kept in detention until the outcome of his application for refugee status. On the same day, the Assize Court ordered the applicant's continued detention, taking into consideration the nature of the offence and the applicant's request. 14. On 12 April 2007 the Adana Assize Court ordered the applicant's release pending trial. 15. On 19 February 2008 the Adana Assize Court acquitted the applicant of the charge of membership of Al-Qaeda. 16. Appeal proceedings are currently pending before the Court of Cassation. B. Administrative proceedings 17. On 19 January 2007 the applicant applied to the Ministry of the Interior requesting asylum. 18. On 16 April 2007 the Ministry of the Interior dismissed this request. According to a document addressed to the Adana public prosecutor's office by the Ministry of Justice on 24 April 2007, the applicant's temporary asylum request was dismissed in view of the offences with which he had been charged and the fact that his presence in Turkey constituted a threat to public safety and public order. It was considered that the applicant had not been sincere in his request but had attempted to use the temporary asylum system in order to avoid deportation to Tunisia. 19. On 25 April 2007 the decision of the Ministry was served on the applicant. In the documents so served, he was told that he could lodge an objection with the Ministry against this decision within two days. 20. On an unspecified date the applicant objected to the decision of 16 April 2007. On 18 May 2007 he was notified that the Ministry had dismissed his objection. The decisions of 25 April and 18 May 2007 were served by a police officer who spoke Arabic. 21. In the meantime, on 3 May 2007 the applicant was recognised as a refugee under the UNHCR's mandate. 22. On 16 October 2007 the applicant was served with a deportation order. 23. On 17 October 2007 the applicant addressed a petition to the Adana police headquarters. He maintained that his request for temporary asylum had been rejected on 18 May 2007 and that he had learned that he would soon be deported to Tunisia. The applicant requested that his deportation be suspended since his lawyer intended to challenge the deportation order before the administrative courts. 24. On the same day the applicant's lawyer lodged an application with the Supreme Administrative Court. He requested the setting-aside of the decision rejecting the applicant's asylum request. The applicant's representative further requested the setting-aside of the deportation order. 25. On 26 October 2007 the applicant's representative filed a petition with the Adana police headquarters and informed the latter of the application he had lodged with the Supreme Administrative Court. He requested the police not to deport the applicant. 26. On 26 October 2007 the Supreme Administrative Court decided that it did not have jurisdiction over the case and transferred the petition to the Ankara Administrative Court. 27. On 14 February 2008 the Ankara Administrative Court requested the Ministry of the Interior to submit a copy of all documents relating to the applicant's case. 28. On 20 March 2008 the Ankara Administrative Court, after receiving the documents concerning the applicant, rejected the application, holding that the applicant had not complied with the time-limit of sixty days stipulated in the Administrative Procedure Act (Law no. 2577). The first-instance court held that the applicant had been notified of the Ministry's decision rejecting his temporary asylum request and ordering his deportation on 18 May 2007, and that the applicant should have challenged this decision by 17 July 2007 at the latest. The court noted that the applicant's petition dated 17 October 2007 to the Adana police headquarters and his application to the Court would not stop the running of the sixty-day time-limit. 29. On 20 June 2008 the applicant's representative lodged an appeal against the decision of 20 March 2008. In his petition, the representative noted that the Ministry's decision rejecting the applicant's objection had not been served on his lawyer, who had found the document dated 25 April 2007 in the criminal case file by chance. 30. On 3 July 2008 the applicant's representative was informed by the president of the Ankara Administrative Court that he had failed to pay the court fees and that he had to pay a total of 161.80 Turkish liras (TRY) by postal order within fifteen days. The representative was warned that if he failed to pay this sum, the applicant would be deemed to have waived his right of appeal. 31. On 11 August 2008 the applicant's representative effected the postal order and paid TRY 162. 32. On 24 October 2008 the Ankara Administrative Court decided that the applicant had waived his right of appeal since his representative had failed to pay the Court fees despite the warning. 33. On 12 January 2009 the applicant' representative appealed against the decision of 24 October 2008, claiming that he had paid the fees. He submitted a copy of the postal order in support of his petition. 34. On 2 February 2009 the Ankara Administrative Court informed the applicant that his representative had failed to pay the Court fees in relation to his appeal dated 12 January 2009. 35. On 4 March 2009 the applicant's lawyer paid TRY 175 in court fees by way of a postal order. C. The applicant's placement in the Fatih police station 36. Following the decision of the Adana Assize Court of 12 April 2007 to release the applicant pending trial, the applicant was not released but was taken to the foreigners' department at the Adana police headquarters. 37. On 12 April 2007 the applicant was transferred to the Fatih police station in Adana. 38. On 12 December 2007 the applicant's representative sent a request to the General Police Headquarters for the applicant to be released from detention. In his request he noted that the applicant was being detained in a small cell and that on 26 October 2007 the European Court of Human Rights had indicated to the Turkish Government that the applicant should not be deported to Tunisia until further notice. 39. The applicant's representative received no reply to his request. 40. Subsequently, on 12 March 2008 he filed a complaint with the Adana public prosecutor's office against the Minister of the Interior, the Adana Governor, the Adana police director, the director of the foreigners' department at the Adana police headquarters and the director of the Fatih police station. He requested the public prosecutor's office to initiate an investigation into the persons concerned, alleging that they had unlawfully deprived the applicant of his liberty and that his detention in a small cell for ten months constituted ill-treatment. The representative noted in his request that there was no legal basis on which to detain the applicant, since asylum seekers were normally given temporary residence permits in Turkey. He further submitted that the ventilation was inadequate in the cell. The applicant was completely isolated and there was no provision for outdoor exercise. Moreover, the applicant did not have access to a doctor. In particular, when he had had a toothache he was denied access to a dentist and had to take the medication that was given to him by police officers. 41. On 16 April 2008 the Adana public prosecutor decided not to bring criminal proceedings against the Minister of the Interior, holding that he had not committed any offence as the applicant was being detained by the police with a view to his deportation. 42. On 23 September 2008 the public prosecutor at the Court of Cassation decided not to process the request from the applicant's lawyer to bring proceedings against the Adana governor. 43. On the same day the applicant's representative wrote to the department responsible for aliens, borders and asylum attached to the General Police Headquarters, to the Adana police headquarters and to the Human Rights Commission of the Turkish Parliament, requesting that his client be released from the Fatih police station. 44. In the meantime, between 1 October 2007 and 3 November 2008 the applicant was examined and prescribed treatment at the Adana hospital on seven occasions. He was examined by an ophthalmologist, a dentist and a general practitioner in relation to his respiratory problems. 45. On 7 November 2008 the applicant was transferred to the Kırklareli Aliens' Admission and Accommodation Centre. 46. On 12 January 2009 the President of the Human Rights Commission of the Turkish Parliament sent a reply to the applicant's representative informing him that the applicant was being detained pending the deportation procedure and that he had been transferred to the Kırklareli Foreigners' Admission and Accommodation Centre. D. Criminal proceedings brought against the applicant in Tunisia 47. On an unspecified date criminal proceedings were brought against the applicant and twelve other persons in Tunisia on charges of membership of a terrorist organisation, aiding and abetting the organisation and providing financial support to that organisation. According to a document translated from Arabic into Turkish by the applicant, on 12 January 2008 a Tunisian criminal court convicted him of membership of an illegal organisation and sentenced him to five years' imprisonment. II. RELEVANT LAW AND PRACTICE A. Domestic law and practice 48. A description of the relevant domestic law and practice can be found in the case of Abdolkhani and Karimnia v. Turkey (no. 30471/08, §§ 29‑44, 22 September 2009). B. International materials 1. Standards of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) 49. The CPT standards concerning the conditions of detention of foreign nationals (see the CPT standards, document no. CPT/Inf/E (2002) 1- Rev. 2006, page 40) provide, in so far as relevant, as follows: “... In certain countries, CPT delegations have found immigration detainees held in police stations for prolonged periods (for weeks and, in certain cases, months), subject to mediocre material conditions of detention, deprived of any form of activity and on occasion obliged to share cells with criminal suspects. Such a situation is indefensible. The CPT recognises that, in the very nature of things, immigration detainees may have to spend some time in an ordinary police detention facility. However, conditions in police stations will frequently - if not invariably - be inadequate for prolonged periods of detention. Consequently, the period of time spent by immigration detainees in such establishments should be kept to the absolute minimum.” 2. Documents relating to the situation of Ennahda members in Tunisia 50. A description of reports by Amnesty International and Human Rights Watch relating to the situation of Ennahda members can be found in Saadi v. Italy [GC] (no. 37201/06, §§ 65-79, ECHR 2008‑...). THE LAW I. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION IN RELATION TO THE DEPORTATION PROCEEDINGS 51. The applicant complained under Articles 2 and 3 of the Convention that his removal to Tunisia would expose him to a real risk of death or ill-treatment. The Court finds it more appropriate to examine the applicant's complaint from the standpoint of Article 3 of the Convention alone (see Abdolkhani and Karimnia, cited above, § 62; NA. v. the United Kingdom, no. 25904/07, § 95, 17 July 2008; Said v. the Netherlands, no. 2345/02, § 37, ECHR 2005‑VI). A. Admissibility 52. The Court notes that this part of the application 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 53. The Government submitted that the applicant's request for temporary asylum had been examined and rejected by the competent authorities. They noted in this connection that the applicant had entered Turkey illegally and had omitted to request asylum for several years. Moreover, he was accused of being a member of the terrorist organisations Ennahda and Al-Quada. They maintained that the Ministry of the Interior had decided on the applicant's request taking into consideration the requirements of Article 3 of the Convention, the provisions of the 1951 Convention relating to the Status of Refugees and the UNHCR's decision to recognise the applicant as a refugee. The Government concluded that the applicant's removal to Tunisia would not expose him to any risk. 54. The applicant contended that he had been convicted in absentia and sentenced to imprisonment in Tunisia for membership of Ennahda, which was not an armed group. He maintained that the reports by international non-governmental organisations showed that terrorist suspects were subjected to widespread torture and ill‑treatment. 55. The Court observes that the applicant claimed that he was a member of Ennahda and submitted a document according to which he had been convicted of membership of a terrorist organisation in Tunisia and sentenced to five years' imprisonment. The Court further observes that the Government did not challenge the veracity of these allegations. Moreover, when the applicant was accused of being a member of Al-Qaeda in Turkey, the Adana public prosecutor noted that an arrest warrant had been issued against the applicant in Tunisia as he was suspected of membership of Ennahda. The Court therefore finds no reason to doubt that the applicant was a member of Ennahda in Tunisia. 56. In this connection the Court recalls that, in the aforementioned Saadi judgment, it observed that the reports of Amnesty International and Human Rights Watch on Tunisia described a disturbing situation. It noted that those reports mentioned numerous and regular cases of torture and ill‑treatment meted out to persons accused of terrorism (see Saadi, cited above, § 143). The Court sees no ground to depart from its findings in the above-mentioned Saadi judgment in the present case. 57. Furthermore, the Government failed to submit any document to the Court demonstrating that the applicant had been interviewed in relation to his temporary asylum request or that the national authorities had indeed examined his request taking into account the requirements of Article 3 of the Convention, as claimed. In addition, the applicant's case was not subjected to judicial review since the Ankara Administrative Court dismissed his application as time-barred, although the applicant had been served with a deportation order on 17 October 2007. The Court is unable to ascertain whether the Ministry of the Interior failed to submit that document for inclusion in the file of the case before the Ankara Administrative Court, or whether the latter did not take into account the fact that the applicant had actually been served with a deportation order when the application was lodged. Moreover, his lawyer's appeal requests were dismissed on the ground that he had failed to pay the court fees, although he had done so. In sum, not only did the administrative authorities fail to interview the applicant, but the latter was also deprived of the right to an examination by the judicial authorities of the merits of his claim that he was at risk in Tunisia. 58. The only document relating to the examination of the applicant's temporary asylum request is the letter dated 24 April 2007 sent by the Ministry of Justice to the Adana public prosecutor's office. According to that document, the applicant's temporary asylum request was rejected by the administrative authorities on the grounds that he had been charged with terrorist-related crimes and that he posed a threat to public safety and public order (paragraph 18 above). In this connection the Court reiterates the absolute nature of Article 3 of the Convention: it is not possible to weigh the risk of ill-treatment against the reasons put forward for the expulsion in order to determine whether the responsibility of a State is engaged under Article 3, even where such treatment is inflicted by another State. The conduct of the person concerned, however undesirable or dangerous, cannot be taken into account (see Chahal v. the United Kingdom, 15 November 1996, § 81, Reports of Judgments and Decisions 1996‑V; Saadi, cited above, § 138; Abdolkhani and Karimnia, cited above, § 91). 59. Besides, the Court must give due weight to the UNHCR's conclusions as to the applicant's claim regarding the risk which he would face if he were to be removed to Tunisia (see Jabari v. Turkey, no. 40035/98, § 41, ECHR 2000‑VIII; N.A. v. the United Kingdom, cited above, § 122; Abdolkhani and Karimnia, cited above, § 82). In this connection the Court observes that, unlike the Turkish authorities, the UNHCR interviewed the applicant and tested the credibility of his fears and the veracity of his account of circumstances in his country of origin. Following this interview, it found that the applicant risked being subjected to ill-treatment in his country of origin. 60. The Court finds in these circumstances that the evidence submitted by the parties, together with the material obtained proprio motu, is sufficient for it to conclude that that there is a real risk of the applicant being subjected to treatment contrary to Article 3 of the Convention if he were to be removed to Tunisia. The Court also notes in this connection that the Government have not put forward any argument or document capable of casting doubt on the applicant's allegations concerning the risks he might face in his country of origin (see Abdolkhani and Karimnia, cited above, § 90). 61. Consequently, the Court concludes that there would be a violation of Article 3 of the Convention if the applicant were to be removed to Tunisia. II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 62. The applicant complained under Article 5 of the Convention that his detention without a legal basis, despite the order of the Adana Assize Court for his release pending trial and his acquittal, had been unlawful. A. Admissibility 63. The Court notes that this part of the application 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 64. The Government submitted that the applicant's detention was based on section 23 of Law no. 5683 and section 4 of Law no. 5682 and that he was being held pending deportation proceedings in accordance with Article 5 § 1 (f) of the Convention. 65. The applicant submitted that his detention did not have a sufficient legal basis in domestic law. 66. The Court reiterates that it has already examined the same grievance in the case of Abdolkhani and Karimnia (cited above, §§ 125-135). It found that in the absence of clear legal provisions establishing the procedure for ordering and extending detention with a view to deportation and setting time-limits for such detention, the deprivation of liberty to which the applicants had been subjected was not “lawful” for the purposes of Article 5 of the Convention. 67. The Court has examined the present case and finds no particular circumstances which would require it to depart from its findings in the aforementioned Abdolkhani and Karimnia judgment. There has therefore been a violation of Article 5 § 1 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN CONNECTION WITH THE APPLICANT'S DETENTION 68. The applicant complained under Article 3 of the Convention that he had been detained in the Fatih police station for almost twenty months in poor conditions and that the medical assistance provided for him during his detention had been insufficient. A. Medical assistance 69. The Government submitted that the applicant had been provided with the appropriate medical assistance for his state of health. In support of their claim, the Government submitted a number of documents demonstrating that the applicant had been examined by doctors. 70. The Court observes that between 1 October 2007 and 3 November 2008 the applicant underwent a number of medical examinations while he was being held in the Fatih police station and received medical treatment. In particular, he was examined by a general practitioner in relation to respiratory problems. He was also examined by an ophthalmologist and a dentist. On each occasion, he was prescribed medication or treatment (see paragraph 44 above). 71. Given that the authorities ensured that the applicant received sufficiently detailed medical examinations and that he was provided with appropriate treatment, the Court concludes that he did have access to adequate medical assistance. It therefore concludes that this part of the application is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. B. Conditions of detention 1. Admissibility 72. The Court notes that this part of the application 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. 2. Merits 73. The Government submitted that the applicant had not been detained in the Fatih police station as alleged but had been kept in the guesthouse which was located in the basement of that station. In the basement there were six rooms that were never locked and a common area where the foreign nationals could watch television. There was hot water twenty-four hours a day and a public telephone. The rooms had air conditioning and the detainees could go out and play football in the yard of the police station. The Government further noted that the room in which the applicant had been kept measured 20.58 square metres. 74. The applicant submitted that he had been detained at the Fatih police station for nineteen months and twenty-six days. The room where he was held was dirty and had serious ventilation problems as it was in the basement of the building. He further maintained that the room was twelve square metres and was designed to accommodate ten persons. However, sometimes twenty-five persons were held there at the same time, meaning that two or three persons had to share single beds. The applicant claimed that he had been able to go out into the yard of the police station only twice. 75. The Court reiterates that, under Article 3 of the Convention, the State must ensure that a person is detained in conditions which are compatible with respect for his or her human dignity, that the manner and method of the execution of the measure do not subject the detainee to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that the individual's health and well-being are adequately secured. When assessing conditions of detention, account has to be taken of the cumulative effects of those conditions and the duration of the detention (see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001‑II, and Kalashnikov v. Russia, no. 47095/99, § 102, ECHR 2002‑VI). 76. In the present case, the Court observes at the outset that the applicant was detained in the basement of a police station between 12 April 2007 and 7 November 2008, that is, for almost twenty months, before being transferred to Kırklareli Foreigners' Admission and Accommodation Centre. The Court further observes that the Government claimed that the basement of Fatih police station was not an ordinary police detention facility but a “guesthouse”, a place designated for the detention of foreign nationals. However, the respondent Government did not submit any documentary evidence in support of their submissions regarding the living conditions there and thus failed to substantiate the alleged difference between the basement of the police station and the rest of the building. The Court therefore accepts that the applicant was detained for almost twenty months in an ordinary police detention centre designed to hold persons in police custody for a maximum period of four days in accordance with the Code of Criminal Procedure. 77. In this connection the Court notes that the European Committee for the Prevention of Torture (CPT) has emphasised that, although immigration detainees may have to spend some time in ordinary police detention facilities, given that the conditions in such places may generally be inadequate for prolonged periods of detention, the period of time spent by immigration detainees in such establishments should be kept to the absolute minimum. While the Court cannot verify the veracity of all the applicant's allegations regarding the conditions of detention at the Fatih police station, it is certain that he was kept in the basement of the station. Therefore and having regard, in particular, to the inordinate length of time for which he was detained at the Fatih police station, the Court considers that the conditions of detention in the basement of the police station amounted to degrading treatment contrary to Article 3. 78. Accordingly, there has been a violation of Article 3 of the Convention on account of the conditions of the applicant's detention. IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 79. The applicant complained under Article 5 of the Convention that he had not been provided with an interpreter when he was taken into police custody on 15 August 2006. He further complained under Article 6 of the Convention that he had not had the assistance of an interpreter throughout the proceedings brought against him. The applicant maintained under Articles 6 and 13 of the Convention that neither the criminal proceedings brought against him nor the administrative proceedings before the Supreme Administrative Court had been concluded within a reasonable time. Relying on Article 8 of the Convention, the applicant contended that his remand in custody and his detention with a view to deportation constituted an unjustified interference with his right to respect for his private and family life. Finally, he submitted that the proceedings concerning the deportation order issued against him had been in violation of Article 1 of Protocol No. 7. 80. Having regard to the facts of the case, the submissions of the parties and its finding of violations of Articles 3 and 5 § 1 of the Convention, the Court considers that it has examined the main legal questions raised in the present application. It concludes therefore that there is no need to give a separate ruling on the applicant's remaining complaints under the Convention (see, for example, Kamil Uzun v. Turkey, no. 37410/97, § 64, 10 May 2007; Çelik v. Turkey (no. 1), no. 39324/02, § 44, 20 January 2009; Juhnke v. Turkey, no. 52515/99, § 99, 13 May 2008; Getiren v. Turkey, no. 10301/03, § 132, 22 July 2008; Mehmet Eren v. Turkey, no. 32347/02, § 59, 14 October 2008). V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 81. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 82. The applicant claimed 64,000 euros (EUR) in respect of non‑pecuniary damage. He further claimed EUR 16,625 in respect of pecuniary damage for loss of income during the time spent in detention. 83. The Government contested these claims. 84. The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim. However, it considers that the applicant must have suffered non‑pecuniary damage which cannot be compensated solely by the finding of violations. Having regard to the gravity of the violations and to equitable considerations, it awards the applicant EUR 26,000 for non-pecuniary damage. 85. The Court further considers, having regard to the particular circumstances of the case, to its finding of a violation of Article 5 § 1 of the Convention and to the urgent need to put an end to that violation, that the respondent State must secure the applicant's release at the earliest possible date (see Assanidze v. Georgia [GC], no. 71503/01, §§ 201-203, ECHR 2004‑II). B. Costs and expenses 86. The applicant also claimed EUR 10,829 for the costs and expenses incurred before the domestic courts and for those incurred before the Court. In support of his claim, the applicant submitted invoices showing the payment of court fees at the national level, telephone bills, a copy of a plane ticket from Istanbul to Adana and an invoice showing the amount paid by the applicant to the lawyer who had represented him at the national level. He also submitted that his lawyer had spent a total of 21 days and 9 hours on the case, and submitted to the Court a time sheet in support of that request. 87. The Government contested this claim, noting that only costs actually incurred could be reimbursed. 88. 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 were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,500 to cover costs under all heads, less the EUR 850 which the applicant received in legal aid from the Council of Europe (see paragraph 2 above). C. Default interest 89. 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 1. Declares the complaints under Articles 2 and 3 of the Convention (in relation to the deportation proceedings and to the applicant's detention), as well as the complaint under Article 5 § 1 of the Convention, admissible and the complaint under Article 3 in relation to the alleged lack of medical assistance inadmissible; 2. Holds that the applicant's deportation to Tunisia would be in violation of Article 3 of the Convention; 3. Holds that no separate issue arises under Article 2 of the Convention; 4. Holds that there has been a violation of Article 5 § 1 of the Convention on account of the applicant's detention at the Fatih police station and in the Kırklareli Foreigners' Admission and Accommodation Centre; 5. Holds that there has been a violation of Article 3 of the Convention on account of the applicant's detention at the Fatih police station; 6. Holds that there is no need to examine separately the applicant's other complaints under Articles 5, 6, 8 and 13 of the Convention and Article 1 of Protocol No. 7; 7. Holds (a) that the respondent State must secure the applicant's release at the earliest possible date; (b) 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, the following amounts to be converted into Turkish liras at the rate applicable at the date of settlement: (i) EUR 26,000 (twenty-six thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable; (ii) EUR 3,500 (three thousand five hundred euros) in respect of costs and expenses, less the EUR 850 (eight hundred and fifty euros) granted by way of legal aid, plus any tax that may be chargeable to the applicant; (c) 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; 8. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 13 April 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Françoise Elens-PassosFrançoise TulkensDeputy RegistrarPresident

FOURTH SECTION CASE OF JORDAN v. THE UNITED KINGDOM (No. 2) (Application no. 49771/99) JUDGMENT STRASBOURG 10 December 2002 FINAL 10/03/2003 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 Jordan v. the United Kingdom (No. 2), The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: MrM. Pellonpää, President,SirNicolas Bratza,MrA. Pastor Ridruejo,MrsV. Strážnická,MrR. Maruste,MrS. Pavlovschi,MrL. Garlicki, judges,and Mrs F. Elens-Passos, Deputy Section Registrar, Having deliberated in private on 19 November 2002, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 49771/99) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a national of the United Kingdom, Mr Stephen Mark Jordan (“the applicant”), on 8 June 1999. 2. The applicant was represented by Mr J. Mackenzie, a lawyer practising in Oxfordshire. The United Kingdom Government (“the Government”) were represented by their Agent, Mr J. A. Grainger of the Foreign and Commonwealth Office. 3. The applicant alleged that the court-martial proceedings against him were not conducted within a reasonable period of time. 4. The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 5. By a decision of 25 September 2001 the Court declared the application admissible. 6. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Fourth Section. 7. The applicant filed observations on the merits (Rule 59 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. The court-martial proceedings 8. The applicant was born in 1971 and lives in Wolverhampton. In March 1995 he was a soldier in the British Army. 9. On 3 March 1995 the Special Investigations Branch of the military police (“SIB”) began investigating charges against him in relation to the fraudulent misuse of travel warrants. He was due to be interviewed on 28 March 1995 but went missing from his unit. On 20 April 1995 he was arrested by the civilian police and returned to his unit. His commanding officer dealt with the charge of absence without leave summarily and sentenced him to, inter alia, 28 days' imprisonment. The applicant served 23 days. 10. On 27 May 1995 the applicant was due for release, but his detention was continued because of the SIB investigation. On 1 and 2 June 1995 he was interviewed by the SIB. On 15 June 1995 he instructed his current legal representative. 11. On 16 June 1995 he was brought before his commanding officer and a charge sheet was read out to him. It recorded one charge of obtaining property by deception (fraudulently claiming motor mileage allowance – “MMA”) contrary to section 15(1) of the Theft Act 1968. An offence contrary to section 15(1) carries a maximum penalty of ten years' imprisonment. 12. On 4 July 1995 the SIB submitted its final report on its investigation into allegations concerning the fraudulent misuse of MMA and of railway warrants (“RW”). 13. On 29 August 1995 a further charge sheet was read to him. It recorded eight additional charges of obtaining property by deception contrary to section 15(1) of the Theft Act 1968, charges also relating to MMA. The applicant was remanded in custody for trial by court-martial. 14. On 15 September 1995 he applied for legal aid under the army legal aid scheme. The legal aid certificate was sent by the Director of Army Legal Services to the applicant's unit on 6 October 1995 and the legal aid certificate was received by the applicant on 6 November 1995. 15. On 16 October 1995 the applicant requested his military medical records. The records were delivered in four batches between mid-November and 1 December 1995. The applicant's purpose in obtaining these records was the preparation of medical reports supporting his claim that he suffered from epilepsy. 16. On 11 December 1995, the applicant was released to open arrest. The court-martial hearing, fixed for 20 November 1995, was adjourned in light of the delay in receiving the medical records. The hearing was then fixed for 5 February 1996 as the applicant indicated that he would not be ready before that date. 17. On 5 February 1996 the hearing was adjourned at the applicant's request to allow him to undergo a brain scan. Hearing dates of 18 and 25 March 1996 were proposed but neither party could make the first date and the applicant could not make the second date. The applicant referred on both occasions to his continuing medical tests for epilepsy. 18. Given the applicant's allegations of epilepsy, in or around mid-1996 the prosecution decided to have the applicant attend its own medical experts. The applicant did not dispute that he was uncooperative in arranging appointments and that he left certain appointments prior to the examination being completed, even when he had been escorted by colleagues to the consulting rooms. He explained that he was not told that the prosecution had wished to enquire about the existence of his epilepsy. He had also been advised by his legal representative not to attend appointments that had not first been negotiated and certain initial appointments had not been notified to that representative. His appointment of 2 September was postponed by him to 30 September 1996 and that of 25 November was postponed by him to 11 December 1996. 19. In December 1996 the prosecution received its medical report. It found that there was sufficient doubt about the applicant's epilepsy to allow it to proceed with further charges against him. Accordingly, on 27 March 1997 the applicant was charged with 18 additional offences of obtaining property by deception contrary to section 15(1) of the Theft Act 1968 (concerning the misuse of RW). 20. However, since the new court-martial system was coming into force on 1 April 1997 (pursuant to the Armed Forces Act 1996), it was decided to proceed against the applicant afresh under that new system. 21. On 30 July 1997 the applicant's representative was notified that the new Army Prosecuting Authority (“APA”) was ready for trial. By 31 July 1997 the APA had referred all the charges for trial by court-martial. 22. On 19 August 1997 the Army Criminal Legal Aid Authority (“ACLAA”) wrote to the applicant's representative referring to his letter of April 1996, confirming that legal aid on the MMA charges - which had been initially granted to the applicant's first representatives – had been transferred to the applicant's present representatives and apologising for the delay in that respect. That letter also referred to the additional RW charges and indicated that the ACLAA was currently organising legal aid for those matters also. 23. On 12 September 1997 the applicant's unit completed the legal aid form for the RW charges, the form was signed by the applicant (by which he certified that all the information was true) and his unit submitted the form to the ACLAA. 24. On 6 October 1997 the ACLAA requested him to submit certain information omitted from the legal aid form including his capital, his savings, details of the award of damages in his favour in October 1996 (see below) and copies of his bank statements for the last 12 months. He was asked to respond quickly in order to allow the processing of the legal aid application with the minimum of delay. The applicant maintained that he replied by letter dated 8 October 1997. In the copy of that letter submitted to the Court, the applicant stated that his application had been correct, that he had not kept his bank statements and that if they were required it would take a week or so to obtain duplicates from the bank. The ACLAA contended that it had no record of having received that letter and it was not until 21 November 1997 that it became aware that the applicant claimed to have sent a letter. 25. On 24 November 1997 the applicant wrote to the ACLAA repeating what he had said in his letter of 8 October 1997 but still not enclosing his bank statements. On 26 November 1997 the applicant's commanding officer wrote to ACLAA enclosing the applicant's letters of 8 October and 24 November 1997 and copies of his bank statements which the applicant had collected from his bank under military escort. It was also noted that the applicant had declined to give details of the damages awarded to him in October 1996 but that he had confirmed that he had bought a house for 50,000 pounds sterling (GBP) in January 1997. 26. On 27 November 1997 the applicant was formally referred for trial by general court-martial. A hearing had been already fixed for 1 December 1997, a date found to be suitable for the parties, including the 56 witnesses the applicant envisaged calling. However, on 1 December 1997 the applicant obtained an adjournment of the hearing because legal aid for the RW charges had been granted on that day. 27. On 12 January 1998 the applicant wrote to the APA arguing that that his referral for court-martial was invalid as it was not in accordance with the relevant regulating provisions and that it was an abuse of process given the delay to date. A preparatory hearing fixed for 27 March 1998 was adjourned because the applicant did not appear and because the Court-Martial Administration Officer (“CMAO”) had not summoned the military witnesses. 28. The applicant's claim that the proceedings were invalid was heard by the Judge Advocate on 22-26 June 1998 who rejected the claim. In finding that the delay did not amount to an abuse of process, the Judge Advocate stated that: “... there has been ... considerable delay in this matter. This has been delay which is just not acceptable. ... In my view much of this delay was caused by an unsuitable bureaucratic pre-trial process. With the benefit of hindsight, some of those responsible for working that process could have made things better by applying a greater degree of urgency whilst operating those procedures; ... One has in this situation a great deal of sympathy with the defence, although I am bound to say that the fault lies principally with the system rather than with the individuals responsible for working that slow bureaucratic process. ... there has been no significant contribution by the defence to this long and unjustifiable delay.” 29. The CMAO then offered a court-martial hearing date in September 1998 but the applicant applied to the High Court on 14 July 1998 for leave to apply for judicial review of the decision of the Judge Advocate. He challenged the decision (of 27 November 1997) to refer him for trial by court-martial. He further submitted that the court-martial should be stayed as an abuse of process on two grounds: that those responsible for the course of the proceedings had defaulted in their duties and because of delay. 30. On 4 November 1998 the High Court directed that the judicial review application be made on notice to the respondent party and it was listed for hearing (for a maximum of two hours) on 26 March 1999. On that date the applicant's solicitor indicated for the first time that the judicial review hearing would probably take two days and the hearing was adjourned. It was re-fixed for 27 July 1999. Prior to the hearing of 27 July 1999 the applicant abandoned his challenge to the decision to refer him for trial by court-martial. At the hearing on that date the Court rejected both grounds for the claim of abuse of process. 31. The court-martial hearing was then re-fixed for 15 November 1999 but the applicant did not appear. 32. The court-martial was rescheduled for 22 November 1999 and the court-martial proceeded on that date. The applicant pleaded guilty to obtaining property by deception to the value of GBP 15,000. He was sentenced to 14 months' imprisonment, of which he was to serve a further 7 months. The Judge Advocate commented that the delay in the case had been inordinate. He noted that, while the early delays had been avoidable, the delays since 1998 were attributable to the applicant who had used every delaying tactic. 33. The applicant did not, prior to or during the court-martial, disclose his medical reports. 34. By letter dated 17 December 1999, the applicant was informed of the reviewing authority's decision to reduce his sentence to three months' imprisonment. On 15 January 2000 a single judge of the Courts-Martial Appeal Court rejected his application for leave to appeal to that court. B. Other proceedings 35. In November 1995 the applicant commenced habeas corpus proceedings in the High Court requesting his release on the grounds, inter alia, that he had not been given a formal hearing at which he was informed of the case against him and afforded an opportunity to present his own case for release. In their pleadings, the army authorities admitted that due to an “administrative oversight” the applicant had not been charged until 16 June 1995. Although the army authorities initially accepted that his detention between 27 May and 16 June 1995 was therefore unlawful, they argued later in the pleadings that that detention was, despite the oversight, lawful. On 11 December 1995, further to the army authorities' undertaking to the High Court, the applicant was released to open arrest. In mid-1996 he was released from open arrest and sent on leave. 36. On 12 February 1996 the applicant instituted further proceedings in the High Court for compensation for, inter alia, unlawful detention between 27 May and 11 December 1995. The Ministry of Defence accepted that his detention between 27 May and 16 June 1995 had been unlawful. Various other admissions were made by the army authorities as regards the failure properly to complete certain reports regarding his ongoing detention but it was denied that such omissions rendered his detention unlawful. The case was settled on 21 October 1996 when the applicant was paid a sum of money and his costs. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 37. The applicant complained about the length of the court-martial proceedings against him. He invoked Article 6 of the Convention, which Article, in so far as relevant, reads as follows: “1. In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” A. Applicability of Article 6 § 1 38. The Court notes that the court-martial proceedings against the applicant concerned numerous charges of obtaining property by deception contrary to section 15(1) of the Theft Act 1968 for which the maximum penalty was ten years' imprisonment. Whether or not the present applicant actually risked that sentence on the facts, he was sentenced to 14 months' imprisonment, reduced on appeal to 3 months' imprisonment. Accordingly, the court-martial proceedings were determinative of a criminal charge (Engel and Others v. the Netherlands judgment of 8 June 1976, Series A no. 22, §§ 80-85). B. Period to be taken into consideration 39. As noted in its decision on the admissibility of this case, the Court recalls that the proceedings began on 1 June 1995 with the applicant's interview (Eckle v. Germany, judgment of 15 July 1982, Series A no. 51, § 73) and ended on 15 January 2000 with the decision of the Courts-Martial Appeal Court. They therefore lasted 4 years, 7 months and 15 days. 40. While the proceedings were considered by four instances (the court-martial, the High Court, the reviewing authority and the Courts-Martial Appeal Court), the latter review and appeal were completed within two months of the main court-martial hearing. Most of the delay therefore took place prior to the first instance (court-martial) hearing. C. Merits of the complaint 41. According to the applicant, the length of the proceedings constitutes a breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. The Government reject the allegation. 42. The Court recalls that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the criteria established by its case-law, particularly the complexity of the case, the conduct of the applicant and of the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 43. As to the complexity of the case, the Court notes that the charges were not of themselves complex, much of the evidence was documentary, there was only one defendant and all charges related to the same legal issue (obtaining property by deception). The Court considers therefore that the length of the proceedings cannot be explained by the complexity of the case. 44. As to the conduct of the applicant, the Court considers that the applicant was entitled to pursue his defence interests through the reasonable use of procedures available, in particular to make an abuse of process application on the grounds of delay, even though such applications would inevitably postpone the court-martial hearing date. However, the applicant can still be held responsible for delays imputable to him in pursuing those applications and during the court-martial process itself. In this respect, the Court notes that between October 1995 and December 1996 the applicant requested various medical records and tests, then failed to co-operate with the prosecution's medical expert and, in the end, did not disclose his own medical reports. It can also be said that he unnecessarily contributed to the delay in the fixing of the hearing date of 1 December 1997. That date was fixed to accommodate, not only the prosecution, but 56 witnesses the applicant proposed to call, none of whom was ever called to give evidence since he eventually pleaded guilty. The applicant was responsible for the adjournment of the judicial review proceedings between 26 March and 27 July 1999 and he did not attend on 15 November 1999, the date to which the court-martial hearing had been rescheduled. Finally, the Court observes that in November 1999 the Judge Advocate found the applicant's “delaying tactics” responsible for much of the delay since 1998. Nevertheless, the Court does not consider that the applicant's conduct alone explains the delay in bringing the proceedings before the court-martial. 45. As to the conduct of the relevant authorities, the Court considers that at a certain point in the proceedings, which it would place in or around December 1996, it was incumbent on the authorities to take firmer control of the proceedings in order to ensure their speedy conclusion. It notes that the Judge Advocate found, in June 1998, that the individuals responsible for the court-martial system could have improved matters by applying a greater degree of urgency to the procedures. While he also expressed the view that much of the delay until June 1998 had been caused by the system which he described as an “unsuitable bureaucratic pre-trial process”, the Court recalls, in this respect, that Article 6 § 1 imposes on the Contracting States the duty to organise their judicial systems in such a way that their courts can meet the requirements of this provision (see, for example, Portington v. Greece, judgement of 23 September 1998, Reports of Judgments and Decisions 1998-VI, § 33, and Del Federico v. Italy, no. 35991/97, § 21, 4 July 2002, unreported). 46. In addition, the authorities should have been particularly diligent from December 1996 to avoid further delays which could be considered to have been completely or mainly attributable to them. In this latter respect, the Court notes that it took four months after receipt of its medical report in December 1996 for the military authorities to pursue the RW charges against the applicant (27 March 1997), charges in respect of which the SIB had completed its investigation as early as July 1995. While it was reasonable for the military authorities to then await the coming into force of the new court-martial system on 1 April 1997 given the Court's judgment in the Findlay case (Findlay v. the United Kingdom, judgment of 25 February 1997, Reports 1997-I), an early court-martial hearing date should have been fixed. Indeed the APA was ready for trial and had referred all charges for court-martial by July 1997. Nevertheless, the next date fixed for a court-martial hearing was 1 December 1997. It appears that the delay in fixing that date and the later vacating of that date related to a delay in granting legal aid in respect of the RW charges. While there is some dispute as to whether the applicant had sent a letter (of 8 October 1997) and while he again appeared uncooperative as regards the provision of certain information required for the grant of legal aid, the RW charges were laid against him on 27 March 1997 but the authorities only began to address the extension of legal aid to cover those RW charges in August 1997. Moreover, the application for judicial review was made on 14 July 1998. However, it was not until November 1998 that the High Court fixed a hearing date for the application and it fixed a date in March 1999, over four months later. While the judicial review proceedings ended in July 1999, the first court-martial hearing date fixed was 15 November 1999. 47. In all the circumstances, the Court considers that, although significant periods of delay can be imputed to the applicant, the proceedings against him were not pursued with the diligence required by Article 6 § 1. There has accordingly been a violation of that provision, in that the criminal charges against the applicant were not determined within “a reasonable time”. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 48. 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 49. The applicant claimed GBP 5,000 as compensation for pecuniary damage suffered by him. The Government pointed to the delays attributable to the applicant, to the comments of the Judge Advocate in November 1999 in this respect and to the fact that the applicant then pleaded guilty to the charges. Accordingly, they argued that the applicant was entitled to no, or at most to nominal, compensation. 50. The Court observes that some forms of non-pecuniary damage, including emotional distress, by their very nature cannot always be the object of concrete proof. However, this does not prevent the Court from making an award if it considers that it is reasonable to assume that an applicant has suffered injury requiring financial compensation (Davies v. the United Kingdom, no. 42007/98, § 38, 16 July 2002, unreported). 51. In the present case, it is reasonable to assume that the applicant suffered some distress and frustration exacerbated by the unreasonable length of the proceedings. Taking account to the significant periods of delay imputable to the applicant, the Court awards 2,500 euros (EUR) under this head. B. Costs and expenses 52. The applicant claimed reimbursement in the sum of GBP 3,500 being the costs' award against him in favour of the State after his unsuccessful judicial review proceedings. He also claimed reimbursement of his own costs of those proceedings in the sum of GBP 11,600.00 approximately (exclusive of value-added tax – “VAT”). The Government argued that those proceedings mainly concerned abuse of process and not delay as such, that he could have argued the matter of delay in mitigation of sentence and that the decision and costs' order of the High Court were perfectly reasonable in light of the applicant's subsequent plea of guilt. They noted that the adjournment of the High Court proceedings from March to July 1999, imputable to the applicant, would have unnecessarily augmented the costs. The costs claimed were not, in any case, reasonable as to quantum. 53. The applicant also claimed approximately GBP 1,430 (also exclusive of VAT) being the costs and expenses of the Convention proceedings, a sum which the Government accepted was reasonable. Finally, the applicant claimed reimbursement of a sum of GBP 150 in respect of his disbursements. He did not specify to which proceedings the disbursements referred and the Government did not specifically refer to this sum in their observations. 54. The Court recalls that only legal costs and expenses found to have been actually and necessarily incurred and which are reasonable as to quantum are recoverable under Article 41 of the Convention (Smith and Grady v. the United Kingdom (just satisfaction), nos. 33985/96 and 33986/96, § 28, ECHR 2000-IX). The Court further recalls that the costs of the domestic proceedings can be awarded if they are incurred by applicants in order to try to prevent the violation found by the Court or to obtain redress therefor (see, among other authorities, the Le Compte, Van Leuven and De Meyere v. Belgium judgment of 18 October 1982, Series A no. 54, § 17, and Lustig-Prean and Beckett v. the United Kingdom (just satisfaction), nos. 31417/96 and 32377/96, §§ 30-33, 25 July 2000, unpublished). 55. As to the costs claimed in respect of the judicial review proceedings, the Court notes that the costs claimed covered all of the High Court proceedings, whereas only one of the three grounds included in the initial application to the High Court related to the issue of delay. The costs of the applicant and of the authorities associated with the other two grounds (one of which was abandoned by the applicant prior to the High Court hearing in July 1999, the third being rejected by the High Court) cannot therefore be considered as having been incurred in an attempt to prevent or redress the violation found by this judgment. Furthermore, given the delay between March and July 1999 noted above as attributable to the applicant, it is reasonable to consider that such delay may have involved a related increase in an applicant's costs (Bouilly v. France, no. 38952/97, § 33, 7 December 1999, unreported). 56. Accordingly, the Court concludes that the legal costs and expenses of the domestic proceedings for which the applicant claims reimbursement cannot all be considered to have been necessarily incurred or to be reasonable as to quantum. 57. The Court further notes that the Government do not contest the reasonableness of the sum of GBP 1,430 claimed in respect of the costs and expenses of the Convention proceedings or the applicant's claim concerning disbursements. The Court does not consider the sums claimed to be unreasonable. 58. In such circumstances, and making an assessment on an equitable basis, the Court awards the applicant EUR 6,500 (inclusive of VAT), in respect of his costs and the costs paid to the State, arising out of the judicial review proceedings. It also awards the applicant EUR 2,500 (inclusive of VAT) in respect of the costs and expenses of the Convention proceedings and in respect of his claim for disbursements. The total award in respect of the applicant's claim for reimbursement of costs and expenses amounts therefore to EUR 9,000 (inclusive of VAT). C. Default interest 59. 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 (see Christine Goodwin v. the United Kingdom [GC], application no. 28957, § 124, to be published in ECHR 2002-). FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been a violation of Article 6 § 1 of the Convention; 2. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts to be converted into pounds sterling at the date of settlement: (i) EUR 2,500 (two thousand five hundred euros) in respect of non-pecuniary damage; (ii) EUR 9,000 (nine thousand euros) in respect of costs and expenses inclusive of any value-added tax that may be chargeable; (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; 3. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 10 December 2002, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Françoise Elens-PassosMatti PellonpääDeputy RegistrarPresident

FIRST SECTION CASE OF MAKEYEV v. RUSSIA (Application no. 13769/04) JUDGMENT STRASBOURG 5 February 2009 FINAL 05/05/2009 This judgment may be subject to editorial revision. In the case of Makeyev v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Anatoly Kovler,Elisabeth Steiner,Khanlar Hajiyev,Giorgio Malinverni,George Nicolaou, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 15 January 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 13769/04) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Anatoliy Viktorovich Makeyev (“the applicant”), on 10 February 2004. 2. The applicant, who had been granted legal aid, was represented by Ms O. Preobrazhenskaya and Ms M. Arutyunyan, lawyers with the International Protection Centre in Moscow. The Russian Government (“the Government”) were represented by Mr P. Laptev, former Representative of the Russian Federation at the European Court of Human Rights. 3. The applicant alleged that the criminal proceedings against him had been unfair because he had been unable to examine witnesses against him. 4. On 14 April 2006 the President of the First Section decided to communicate 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 § 3). 5. The Government objected to the joint examination of the admissibility and merits of the application. Having examined the Government’s objection, the Court dismissed it. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1954 and lives in the Moscow Region. 7. On 6 March 2003 the applicant and Mr S. were arrested and charged with the armed robbery of Ms M., an offence under Article 161 § 2 (g) of the Russian Criminal Code, and the robbery of Ms G., an offence under Article 162 § 2 (g) of the Criminal Code. 8. The first charge was based on the investigator’s interviews with Ms M., the victim, and Ms K., an eyewitness to the robbery. Ms M. stated that on 30 January 2003 she had been working as a pedlar. The applicant and Mr S. had come up to her and told her to give them merchandise and money. The applicant had threatened her with a knife. She panicked. The men stuffed the merchandise in bags, took her money and left. Ms K. testified that on 30 January 2003 she had seen two men approach Ms M. and heard them ask for money. They had verbally threatened her. Then they had got hold of the merchandise and left. The applicant’s flat was searched and the objects taken from Ms M. were found there. An identification parade was held and Ms M. identified the applicant and Mr S. as the persons who had robbed her. 9. The second charge was based on the statements that Ms G. and her brother Mr G. gave to the investigator. Ms G. explained that at some time in February 2003 the applicant and Mr S. had come to her brother Mr G. They had locked themselves in her brother’s room. She had heard the visitors say that her brother owed them money and that they would take the TV set and video player for the debt. They had threatened to kill her. She had seen them carrying the TV set and video player out of the flat. Mr G.’s testimony was identical to that of his sister, except that he claimed that he owed nothing to the applicant or Mr S. 10. On 29 April 2003 the applicant and Mr S. were committed for trial on both charges. The Lobnya Town Court of the Moscow Region scheduled the hearing for 27 May 2003 and summoned Ms M., Ms K., Ms G. and Mr G. to appear as prosecution witnesses. 11. On 27 May 2003 Ms M., Ms K. and Mr G. did not appear. The applicant asked the court to obtain their attendance. The court adjourned the hearing until 17 June 2003 and ordered that the police ensure the witnesses’ appearance in court. 12. On 17 June 2003 the witnesses did not appear. Ms K. sent a note saying that she could not come as she had to look after her new-born baby. As to Ms M., the police report stated that in the morning of 17 June 2003 she had not been at home and that a neighbour had said that “Ms M. had not lived at that address for some time”. Mr G. was in custody and could not be brought to the courtroom on 17 June 2003 as on that day “the prosecutor was going to extend the authorised period of investigation in the criminal case against Mr G.”. 13. The applicant insisted that the court should make further efforts to obtain the attendance of the witnesses and asked the court to adjourn the hearing. However, the court decided to proceed with the hearing in the absence of the witnesses. 14. The court heard the testimony by the applicant and his co-defendant Mr S. On the first count the applicant admitted that on 30 January 2003 he had seen Ms M. in the street. She had been talking to a certain Misha. Misha had given him a bag, which he had brought home. He denied that he had threatened Ms M. with a knife. On the second count he pleaded not guilty. He acknowledged that on 14 February 2003 he had come to see Mr G. to recover a debt but denied having taken anything from him or from his sister. Mr S. pleaded not guilty on both counts. 15. The court then examined Ms G., who confirmed the testimony she had given to the investigator. 16. The prosecutor requested the court’s permission to read out the statements made by Ms M., Ms K. and Mr G. during the pre-trial investigation. The applicant did not object. His co-defendant Mr S. made an objection. The court allowed the prosecutor’s request and the statements by Ms M., Ms K. and Mr G. were read out. 17. On 19 June 2003 the Lobnya Town Court delivered its judgment. On the first count it considered that the applicant’s guilt was sufficiently established in relation to the armed robbery of Ms M. on the basis of the following evidence: written depositions made by Ms M. and Ms K. during the pre-trial investigation; Ms M.’s complaint to the police; the report on the search in the applicant’s flat, where the stolen merchandise had been found; and the report on an identification parade during which Ms M. had identified the applicant as one of the robbers. 18. On the second count the court found the applicant guilty of the robbery of Ms G. on the strength of the following evidence: statements by Ms G. before the court; a deposition made by Mr G. during the pre-trial investigation; Ms G.’s complaint to the police; and the users’ manual for the TV set submitted by Ms G. 19. The court convicted the applicant of the armed robbery of Ms M., an offence under Article 162 § 2 of the Russian Criminal Code, and the robbery of Ms G., an offence under Article 161 § 2 of the Criminal Code. It sentenced him to five years and six months’ imprisonment. 20. In his grounds of appeal the applicant complained, in particular, that the trial court had not secured the attendance of Ms M., Ms K. and Mr G. He also complained that the legal characterisation of his actions was erroneous as regards the count of robbery of Ms M. He insisted that he had not had a knife and asked the court to amend the charge of armed robbery to that of robbery. 21. On 27 August 2003 the Moscow Regional Court upheld the judgment on appeal. It did not address the applicant’s complaint about the failure to obtain the attendance of witnesses. II. RELEVANT DOMESTIC LAW 22. Robbery – that is, obtaining property by violence or threat of violence – carries a punishment of three to seven years’ imprisonment (Article 161 § 2 (g) of the Russian Criminal Code). Armed robbery carries a punishment of seven to twelve years’ imprisonment (Article 162 § 2 (g) of the Criminal Code). 23. Forcible assertion of one’s rights in disregard of established procedure, causing considerable damage to a person or organisation and accompanied by violence or threat of violence, is punishable by up to three years’ restriction of liberty of movement, or up to six months’ arrest, or up to five years’ imprisonment (Article 330 § 2 of the Criminal Code). 24. The Code of Criminal Procedure of the Russian Federation of 18 December 2001 provides that witnesses are to be examined directly by the trial court (Article 278). Statements given by the victim or a witness during the pre-trial investigation can be read out with the consent of the parties in two cases: (i) if there is a substantial discrepancy between those statements and the testimony before the court; or (ii) if the victim or witness has failed to appear in court (Article 281). 25. If a witness does not obey a summons to appear without a good reason, the court may order that the police or the bailiffs should bring him to the courtroom by force (Article 113). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (d) OF THE CONVENTION 26. The applicant complained that the trial court’s reliance on statements by witnesses whom he had had no opportunity to question constituted a violation of Article 6 §§ 1 and 3 (d) of the Convention, which provides as follows: “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: ... (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 27. The Court notes that the application 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. Submissions by the parties 28. The Government submitted that the authorities had made a reasonable effort to secure the attendance of Ms M., Ms K. and Mr G. However, they had been unable to attend the trial. According to her neighbours, Ms M. had moved out of her flat, where she had lived on a temporary basis. She was a Ukrainian national permanently living in Ukraine. Ms K. had refused to attend as she was looking after her child. Mr G. had been taking part in the investigation in a criminal case against him and it had been impossible to bring him to the courtroom on the day of the hearing. Moreover, the applicant had not objected to the reading out of their statements. 29. The applicant submitted that Ms M., Ms K. and Mr G. were the key witnesses against him. On the first charge, although the applicant had confessed to having robbed Ms M., he had denied threatening her with a knife. The court’s conclusion that he had committed the offence of armed robbery, rather than the offence of robbery to which he had confessed, had rested solely on the depositions by Ms M. that he had been armed with a knife. It had been also crucial for the applicant to question Ms K., an eyewitness, to clarify whether or not she had seen him brandishing a knife at Ms M. On the second charge, Mr G. had been the only eyewitness to the robbery. Although the court had also relied on the testimony given by his sister Ms G. in court, she had been only a hearsay witness. The conviction had been primarily based on Mr G.’s statements to the investigator. In particular, the court’s conclusion that the applicant had robbed Mr G. rather than taken his belongings for the debt had rested solely on Mr G.’s assertion that he had owed nothing to the applicant or Mr S., which had not been corroborated by any other evidence. 30. The applicant further argued that the authorities’ effort to obtain the attendance of the witnesses had been insufficient. In particular, they had not delivered the summonses to Ms K. until the day of the hearing. Had this been done in advance, she could have made arrangements for babysitting. Similarly, the police had visited Ms M. only on the day of the hearing. As she had been absent from her flat, they had assumed that she had left Russia. However, they had never verified whether she had indeed moved away. Nor had they attempted to discover her whereabouts. As for Mr G., he had been in custody under the control of the authorities. The summonses had been issued by the court on 27 May 2003, so the authorities had known well in advance that on 17 June 2003 Mr G. had to be present in court. They could therefore have examined the issue of extending the investigation in respect of him on any other day. Moreover, the extension of the authorised period of investigation was a purely formal decision taken in the absence of the accused and without hearing his opinion. 31. Finally, the applicant conceded that he had not objected to the reading out of the witnesses’ statements. He argued, however, that such an objection would have been ineffective. Indeed, an objection raised by his co-defendant Mr S. had been dismissed by the court and the witnesses’ statement had been read out. Moreover, his failure to object to the reading out of the statements in question had not amounted to a waiver of his right to question the witnesses against him. He had twice asked the court to adjourn the hearing and secure their attendance. He had therefore clearly shown that he had considered it important to have the witnesses questioned. 2. The Court’s assessment 32. As the requirements of Article 6 § 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1, the Court will examine the applicant’s complaints under those two provisions taken together (see, among many other authorities, Van Mechelen and Others v. the Netherlands, 23 April 1997, § 49, Reports of Judgments and Decisions 1997‑III). 33. The Court reiterates that the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The Court’s task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see, among other authorities, Doorson v. the Netherlands, 26 March 1996, § 67, Reports 1996‑II, and Van Mechelen and Others, cited above, § 50). 34. The evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. There are exceptions to this principle, but they must not infringe the rights of the defence. As a general rule, paragraphs 1 and 3 (d) of Article 6 require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statement or at a later stage (see Lüdi v. Switzerland, 15 June 1992, § 49, Series A no. 238). 35. As the Court has stated on a number of occasions, it may prove necessary in certain circumstances to refer to depositions made during the investigative stage. If the defendant has been given an adequate and proper opportunity to challenge the depositions, either when made or at a later stage, their admission in evidence will not in itself contravene Article 6 §§ 1 and 3 (d). The corollary of that, however, is that where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6 (see Lucà v. Italy, no. 33354/96, § 40, ECHR 2001‑II, with further references). 36. The Court further reiterates that the authorities should make “every reasonable effort” to secure the appearance of a witness for direct examination before the trial court. With respect to statements of witnesses who have proved to be unavailable for questioning in the presence of the defendant or his counsel, the Court would emphasise that “paragraph 1 of Article 6 taken together with paragraph 3 requires the Contracting States to take positive steps, in particular to enable the accused to examine or have examined witnesses against him. Such measures form part of the diligence which the Contracting States must exercise in order to ensure that the rights guaranteed by Article 6 are enjoyed in an effective manner” (see Sadak and Others v. Turkey, nos. 29900/96, 29901/96, 29902/96 and 29903/96, § 67, ECHR 2001‑VIII). 37. The first question to be decided in the present case is whether by failing to object to the reading out of the witnesses’ statements the applicant waived his right to have the witnesses examined. In this regard the Court reiterates that the waiver of a right guaranteed by the Convention, in so far as permissible, must be established in an unequivocal manner (see Bocos-Cuesta v. the Netherlands, no. 54789/00, § 65, 10 November 2005). In the present case the applicant twice asked the court to adjourn the hearing and obtain the attendance of the witnesses. It is true that he did not object to the reading out of the statements they had made at the pre-trial stage. However, in view of his repeated requests to secure the witnesses’ presence in court, the Court cannot find that he may be regarded as having unequivocally waived his right to have them questioned. 38. The Court will further examine whether the use in court of the statements by the absent witnesses amounted to a violation of the applicant’s right to a fair trial. In doing so, it will ascertain whether their statements read out at the trial were corroborated by other evidence and whether a reasonable effort was made by the authorities to secure their appearance in court. (a) The reading out of depositions by Ms M. and Ms K. 39. The Court observes that Ms M. and Ms K. were respectively the victim and the only eyewitness to the armed robbery, the first charge levelled at the applicant. They both testified that the applicant had approached Ms M. in the street and got hold of her money and merchandise. That testimony was corroborated by the applicant’s confession and the results of the search of his flat, where the stolen merchandise had been found. 40. However, Ms M. was the only one to testify that the applicant had threatened her with a knife. As the applicant denied this and Ms K. did not mention a knife in her depositions to the investigator, the domestic courts’ conclusion that the applicant had brandished a weapon rested solely on Ms M.’s statement. The Court notes in this connection that the question of whether the applicant had been armed was crucial for the legal characterisation of the applicant’s actions as robbery or armed robbery, the latter carrying a more severe penalty (see paragraph 22 above). Given that Ms M.’s statements were of decisive importance for the applicant’s conviction, in order to receive a fair trial he should have had an opportunity to question her. The Court also accepts the applicant’s argument that he should have been afforded an opportunity to question Ms K., the eyewitness to the robbery, who could have confirmed or disputed Ms M.’s testimony. 41. The Court takes note of the Government’s argument that Ms M. and Ms K. had been unavailable for questioning during the trial as Ms M. had left Russia and Ms K. had been looking after her child. It observes, however, that, in view of the importance of the witnesses’ testimony to the proceedings, the authorities should have made a particular effort to obtain their attendance. The Court accepts that the domestic courts made a certain effort to secure the attendance of Ms M. and Ms K. They sent them summonses to attend the hearing of 27 May 2003, adjourned that hearing when confronted with the witnesses’ failure to appear, and ordered that the police bring them to the courtroom on 17 June 2003. However, as was indicated by the applicant and not disputed by the Government, the police remained passive until the very date of the hearing, when for the first time they visited Ms M.’s flat and contacted Ms K. As for Ms M., the police concluded that she had left Russia merely on the basis of her absence from the address provided during the preliminary investigation and a neighbour’s unverified supposition that she had moved out. No effort was made to establish her whereabouts. While the Court is not unmindful of the difficulties encountered by the authorities in terms of resources, it does not consider that tracking down Ms M. for the purpose of calling her to attend the trial, in which the applicant stood accused of a very serious offence and risked up to twelve years’ imprisonment (see paragraph 22 above), would have constituted an insuperable obstacle (see Bonev v. Bulgaria, no. 60018/00, § 44, 8 June 2006). As for Ms K., her belated notification of the date of the hearing resulted in her unavailability. If she had been apprised of her duty to testify in advance, she could have made arrangements for the care of her child. The responsibility for her failure to appear therefore rests with the domestic authorities. 42. The Court concludes that the authorities failed to make every reasonable effort to secure the attendance of Ms M. and Ms K. As a result, they never appeared to testify before a court in the presence of the applicant. It does not appear from the materials in the case file – nor has it been argued by the Government – that the applicant had the opportunity to cross-examine them at another time. The applicant was not provided with an opportunity to scrutinise the manner in which Ms M. and Ms K. were questioned by the investigator, nor was he then or later provided with an opportunity to have questions put to them. Furthermore, as Ms M.’s and Ms K.’s statements to the investigator were not recorded on video, neither the applicant nor the judges were able to observe their demeanour under questioning and thus form their own impression of their reliability (see, by contrast, Accardi and Others v. Italy (dec.), no. 30598/02, ECHR 2005-II). The Court does not doubt that the domestic courts undertook a careful examination of Ms M.’s and Ms K.’s statements and gave the applicant an opportunity to contest them at the trial, but this can scarcely be regarded as a proper substitute for personal observation of the leading witnesses giving oral evidence (see Bocos-Cuesta, cited above, § 71). 43. Having regard to the fact that the applicant was not afforded an opportunity to question Ms M. and Ms K., whose testimony was of decisive importance for the legal characterisation of the offence he was convicted of, and that the authorities failed to make a reasonable effort to secure their presence in court, the Court finds that the applicant’s defence rights were restricted to an extent incompatible with the guarantees provided by Article 6 §§ 1 and 3 (d) of the Convention. (b) The reading out of depositions by Mr G. 44. The Court observes that Mr G. was the eyewitness to the robbery of his sister Ms G., the second charge against the applicant. His depositions were identical in many respects to those of Ms G., who testified in court and was questioned by the applicant. Mr G. and Ms G. both stated that the applicant and his accomplice had come to their flat, threatened them and taken their belongings away. The only added value of Mr G.’s testimony was his assertion that he owed nothing to the applicant, while the applicant had claimed that Mr G. was indebted to him and Ms G. had asserted that the belongings had been taken by the applicant for the debt that Mr G. had refused to pay. The Court notes that the existence of a debt was an essential element for the characterisation of the applicant’s actions either as robbery of Mr G. and Ms G. or as a forcible assertion of his right to recover the debt. Therefore Mr G.’s depositions had a bearing on the legal characterisation of the applicant’s actions under Article 161 § 2 (robbery) or Article 330 § 2 (forcible assertion of one’s right) of the Criminal Code and, consequently, on the penalty imposed on him (see paragraphs 22 and 23 above). The Court considers that Mr G.’s statements, although not the sole evidence against the applicant, were nevertheless of decisive importance for his conviction. 45. The Court will next examine whether the authorities made a reasonable effort to obtain Mr G.’s attendance. It notes that Mr G. was in custody at the disposal of the domestic authorities. The Government did not explain why Mr G. had not been brought to the courtroom on 27 May 2003. Their explanation for the failure to bring him to the courtroom on 17 June 2003 appears unconvincing. The investigator in charge of the criminal case against Mr G. had been informed in advance that on that day Mr G. had to be present in court. He could have organised the investigation schedule to allow Mr G. to testify, but apparently did not make any effort to do so. 46. In view of the above, the Court finds that the domestic authorities did not make a reasonable effort to ensure that the applicant had a proper and adequate opportunity to question Mr G., a key witness against him. In these circumstances, the applicant cannot be said to have received a fair trial. (c) Conclusion 47. Having regard to the fact that the applicant had no opportunity to cross-examine three witnesses whose statements were of decisive importance for his conviction, the Court concludes that his defence rights were restricted to an extent incompatible with the guarantees provided by Article 6 §§ 1 and 3 (d) of the Convention. Accordingly, there has been a violation of these provisions. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 48. 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 49. The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage incurred through the unfair criminal proceedings and his allegedly unlawful detention after conviction. 50. The Government submitted that the applicant’s claim for compensation for unlawful detention had been irrelevant to the subject matter of his application. 51. The Court accepts that the applicant suffered distress and frustration resulting from the unfair criminal proceedings against him. The non-pecuniary damage sustained is not sufficiently compensated for by the finding of a violation of the Convention. However, the Court finds the amount claimed by the applicant excessive. Making its assessment on an equitable basis, it awards the applicant EUR 1,500 under this head, plus any tax that may be chargeable on that amount. B. Costs and expenses 52. Relying on the lawyers’ timesheets, the applicant claimed EUR 2,800 for his representation. 53. The Government submitted that the applicant’s lawyers had acted pro bono. The applicant had not produced any documents showing that the expenses had been actually and necessarily incurred by him. 54. 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 were reasonable as to quantum. The Court considers excessive the number of hours of work for which the applicant claimed reimbursement. Having regard to the criteria described above and to the amount received by the applicant in legal aid, the Court dismisses the claim for costs and expenses. C. Default interest 55. 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 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention; 3. 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 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Russian roubles 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 5 February 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident

SECOND SECTION CASE OF PİROĞLU AND KARAKAYA v. TURKEY (Applications nos. 36370/02 and 37581/02) JUDGMENT STRASBOURG 18 March 2008 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 Piroğlu and Karakaya v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Ireneu Cabral Barreto, Rıza Türmen,Vladimiro Zagrebelsky,Antonella Mularoni,Danutė Jočienė,Dragoljub Popović, judges,and Sally Dollé, Section Registrar, Having deliberated in private on 27 November 2007 and 26 February 2008, Delivers the following judgment, which was adopted on that last-mentioned date: PROCEDURE 1. The case originated in two applications (nos. 36370/02 and 37581/02) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Turkish nationals, Mr Ecevit Piroğlu and Mrs Mihriban Karakaya (“the applicants”), on 17 August 2002 and 18 August 2002 respectively. 2. The applicants were represented by Ms E. Yıldız and Mr Zeynel Kaya respectively, lawyers practising in Izmir. The Turkish Government (“the Government”) were represented by their Agent. 3. On 2 May 2006 the Court joined the applications (Rule 42 § 1), declared them partly inadmissible and decided to communicate to the Government the complaints concerning both applicants' right to a fair and public hearing, and the second applicant's right to freedom of expression and freedom of association. Under the provisions of Article 29 § 3 of the Convention, the Court decided to examine the merits of the applications at the same time as their admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicants were born in 1974 and 1962, respectively, and live in Izmir. They were members of the executive board of the Izmir Branch of the Human Rights Association (“the Association”) at the time of lodging their applications to the Court. There were two different sets of criminal proceedings brought against the applicants; however, it should be noted that the first applicant's case concerned only the first set of proceedings, regarding the Association members with prior convictions. A. Proceedings regarding the Association members with prior convictions 5. On 10 July 2001 the Izmir Governor sent a letter to the Association requesting that the membership of thirteen persons, including the second applicant, be annulled as they were considered to be involved in illegal activities. In this letter it is said that, although the second applicant had been taken into police custody on 30 April 1999, she had subsequently been released as it had not been established that she had any connection with the illegal TKP/ML-TIKKO (the Turkish Communist Party / Marxist-Leninist–Turkish Workers' and Peasants' Liberation Army). 6. On 6 August 2001 the Association replied to the Governor that they would not comply with the request since none of these thirteen persons had prior convictions which would ban them from founding or becoming a member of an association, as provided by section 4 §§ 2 and 3 and section 16 of the Associations Act (Law no. 2908). 7. On 17 October and 31 October 2001 respectively, the Izmir Public Prosecutor informed the applicants that a prosecution had been initiated against them for non-compliance with section 4 of Law no. 2908, but that no court proceedings would be initiated if they paid a fine of 142,366,000 Turkish liras (TRL)[1] per person within ten days. The applicants did not pay the fine within ten days as required by the payment order. 8. Subsequently, on 3 December 2001 the Izmir Public Prosecutor filed a bill of indictment against the applicants and the other members of the Board. The public prosecutor requested that the accused be fined under Section 75 of the Associations Act and Article 119 of the Criminal Code for their failure to comply with the Izmir Governor's request. The bill of indictment was not notified to the applicants. 9. On 26 December 2001 the Izmir Magistrates' Court, without holding a hearing, found the applicants and the other co-accused guilty as charged and, by a penal order (ceza kararnamesi), fined them TRL 213,548,400[2] per person. In doing so, the court relied on the “simplified procedure” stipulated in Article 386 of the Code of Criminal Procedure for relatively minor offences. 10. The applicants and the other co-accused lodged an objection with the Izmir Criminal Court against the decision of 26 December 2001. 11. On 6 February 2002 the Izmir Criminal Court dismissed the objection without a hearing. 12. The applicants paid the amounts due. 13. Subsequently, on 16 December 2002 one of the co-accused, Mr N.B., applied to the Ministry of Justice, requesting the Minister to refer the case to the Court of Cassation by way of a written order (yazılı emir). 14. On 29 January 2003 the Minister of Justice issued a written order and instructed the Chief Public Prosecutor at the Court of Cassation to ask the Court of Cassation to set aside the judgment concerned. 15. On 14 April 2003 the Court of Cassation quashed the judgment of the Izmir Criminal Court dated 6 February 2002 and the case file was remitted to the Izmir Magistrates' Court. 16. On 14 May 2003 the Izmir Magistrates' Court held a preparatory hearing and included the case in its list. It further decided to summon all of the defendants, including the applicants, to its next hearing. 17. On 14 July, 7 August and 22 October 2003 respectively, the court held three hearings. 18. At its last hearing, held on 22 October 2003, the Magistrates' Court held that it lacked jurisdiction to hear the case because, following the promulgation of Law no. 4854 on 24 April 2003, the sentence imposed on the applicants for not complying with the Izmir Governorship's order had been classified as an administrative fine. During the proceedings, none of the defendants made submissions to the court. 19. On 25 February 2004 the Court of Cassation upheld the decision of the Izmir Magistrates' Court. The case file was sent to the Governorship of Izmir. 2. Proceedings regarding the Platform of Conscientious Objectors to War 20. On 9 October 2001 the Association, together with several local non-governmental organisations (NGOs), took part in a civil society movement called the “Platform of Conscientious Objectors to War” and made a collective press declaration in protest against the military operations of the United States of America (USA) in Afghanistan. 21. On an unspecified date, the prosecutor notified the second applicant that a prosecution had been initiated against her under Section 34 of the Associations Act for her involvement with the “Platform of Conscientious Objectors to War”, an organisation without any lawful status. The prosecutor also informed the applicant that no court proceedings would be initiated if she paid a fine of TRL 142,366,000 within ten days. 22. In the absence of payment, the prosecutor filed an indictment on 3 December 2001, charging the second applicant and five other board members of the Association with a violation of Section 34 of the Act. In the indictment, the prosecutor stated that the platform had no legal basis under Turkish law. The bill of indictment was not served on the second applicant. 23. On 31 December 2001 the Izmir Magistrates' Court, following the simplified procedure and thus without a hearing, convicted the second applicant as charged (case no. 2001/2160). By issuing a penal order, it sentenced her to an increased fine of TRL 213,548,400. However, the court suspended the sentence pursuant to section 6 of Law no. 647 on the execution of sentences. 24. On 18 February 2002 the second applicant lodged an objection with the İzmir Criminal Court against the penal order. She argued that her conviction infringed her right to freedom of expression and that “a collective press declaration” could not be classified as a contribution to the establishment of an unlawful organisation. She further complained that the indictment had not been communicated to her and that the court had not obtained statements or heard counter-evidence from her. 25. On 20 February 2002 the criminal court dismissed her objection, again without holding a hearing. II. RELEVANT DOMESTIC LAW AND PRACTICE 26. The relevant Articles of the Code of Criminal Procedure which was in force at the time of the events read as follows: Article 302 “Unless otherwise specifically provided by law, objection proceedings are conducted without a hearing. If necessary, the public prosecutor [may be] heard.” Article 386 “As regards infringements falling within its jurisdiction, the ... magistrates' court makes its ruling, without holding a hearing, through a penal order. The order can only be given in cases of simple or aggravated fines or in relation to offences carrying a maximum prison sentence of three months ...” Article 387 “The judge schedules a hearing if he sees an inconvenience in ruling in the absence of one.” Article 390 “A hearing shall be held if an objection is raised to a prison sentence imposed by a penal order. (...) The suspect can be represented by defence counsel during the hearing. (...) Objections to penal orders (...) are examined by a judge at the criminal court of first instance, in line with the procedure described under Articles 301, 302 and 303. The objection would suspend the execution of the penal order.” 27. In a judgment given on 30 June 2004, the Constitutional Court declared Article 390 § 3 of the Code of Criminal Procedure unconstitutional and a nullity. It held that the lack of a public hearing before the Criminal Court of First Instance which examines objections to penal orders would be a deprivation of the right guaranteed by Article 6 of the Convention, as well as Article 36 of the Constitution. 28. Article 343 § 1 of the Code of Criminal Procedure, concerning references to the Court of Cassation by written order of the Minister of Justice (Yazılı emir ile bozma – “ the reference by written order”) provides: “Where the Minister of Justice has been informed that a judge or court has delivered a judgment that has become final without coming under the scrutiny of the Court of Cassation, he may issue a formal order to the Chief Public Prosecutor requiring him to ask the Court of Cassation to set aside the judgment concerned ...” 29. The relevant provisions of the Associations Act (Law no. 2908), which was in force at the time provided as follows: Section 4 “Everyone over the age of eighteen and qualified to exercise civil rights has the right to establish an association without prior notice. However, the following persons, even if they have benefited from an amnesty, may not found an association: ... 2. a) Persons convicted of any of the following offences: shameful offences such as embezzlement, dishonesty, bribery, theft, fraud, forgery, abuse of religious belief, fraudulent bankruptcy, offences of smuggling other than for manufacturing, supply or consumption, [or] improper interference in official competitive tender procedures, procurements and sales. b) Any person convicted of those offences appearing in the first chapter of Book Two of the Turkish Penal Code, or of open incitement to commit such offences. c) Any person convicted of incitement to enmity and hatred on grounds of differences of class, race, language, religion or region under paragraph two of Article 312 of the Turkish Penal Code, or of counterfeiting under Articles 316, 317 or 318 of the same code. d) Any person convicted of committing, for political and ideological purposes, those actions mentioned in the first, second or third paragraphs of Article 536 of the Turkish Penal Code, or those in the first, second, third, fourth or fifth paragraphs of Article 537 of the same Code ...” Section 16 “Everyone over the age of eighteen and qualified to exercise civil rights has the right to become a member of an association. However, those indicated in the second paragraph of section 4 of this Law may not be members of associations.” Section 34 “Associations may not form organisations other than federations or confederations.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 30. The applicants complained under Article 6 § 1 of the Convention that they had been deprived of their right to a fair and public hearing in the determination of the criminal charges against them. They stressed the fact that the courts had determined their case without holding a hearing. The applicants further alleged a breach of Article 6 § 3 (a) of the Convention in that they had not been informed promptly of the accusations against them as the public prosecutor's indictment had not been communicated to them. They also maintained that they had been deprived of their rights to defend themselves in person or through a lawyer, and to submit counter‑arguments and evidence, including the examination of witnesses, within the meaning of Article 6 § 3 (b), (c) and (d). 31. Article 6, in so far as relevant reads as follows: “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: (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (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 32. The Government argued that the second applicant had failed to exhaust domestic remedies in respect of the second set of criminal proceedings. In this connection, they stated that at the end of the first set of criminal proceedings, at the request of one of the co-accused, the Ministry of Justice had issued a written order and referred the case to the Court of Cassation. As the second applicant did not follow the same procedure for the second set of proceedings, in the Government's view she could not be considered to have exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention. 33. The Court notes that the remedy referred to by the Government is an extraordinary remedy under Turkish law. According to Article 343 of the Code of Criminal Procedure (see paragraph 28 above), the Chief Public Prosecutor at the Court of Cassation is empowered to refer a case to the Court of Cassation, but he may do so only on the formal instructions of the Minister of Justice. The remedy in question is therefore not directly accessible to people whose cases have been tried. Consequently, regard being had to the generally recognised rules of international law, it is not necessary to attempt this remedy in order to comply with the requirements of Article 35 § 1 of the Convention (see Öztürk v. Turkey [GC], no. 22479/93, § 45, ECHR 1999‑VI). Accordingly, the Court dismisses the Government's preliminary objection. 34. The Court notes that this part of the application 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. General principles 35. The Court reiterates that it is a fundamental principle enshrined in Article 6 § 1 that court hearings should be held in public. This public character protects litigants against the administration of justice without public scrutiny; it is also one of the means whereby people's confidence in the courts can be maintained. By rendering the administration of justice transparent, publicity contributes to the achievement of the aim of Article 6 § 1, namely a fair trial, the guarantee of which is one of the principles of any democratic society (see, among other authorities, Stefanelli v. San Marino, no.35396/97, § 19, ECHR 2000‑II). 36. Read as a whole, Article 6 guarantees the right of an accused to participate effectively in a criminal trial. In general, this includes not only the right to be present, but also the right to receive legal assistance if necessary, and to follow the proceedings effectively. Such rights are implicit in the very notion of an adversarial procedure and can also be derived from the guarantees contained in sub-paragraphs (c) and (e) of Article 6 § 3 (see, among other authorities, Stanford v. the United Kingdom, judgment of 23 February 1994, Series A no. 282-A, pp. 10–11, § 26). 37. Furthermore, Article 6 § 1 does not guarantee a right of appeal against a decision of first instance. Where, however, domestic law provides for a right of appeal, the appeal proceedings will be treated as an extension of the trial process and accordingly will be subject to Article 6 (see Delcourt v. Belgium, judgment of 17 January 1970, Series A no. 11, § 25). 2. Application in the present case 38. The Court considers that, in the instant case, it is more appropriate to deal with the applicants' complaints under Article 6 § 1 globally due to the overlapping nature of the issues and since the sub-paragraphs of Article 6 § 3 may be regarded as specific aspects of the general fairness guarantee of the first paragraph. 39. At the outset, the Court notes that, in a judgment delivered on 30 June 2004, the Constitutional Court unanimously declared Article 390 § 3 of the former Criminal Code unconstitutional and a nullity, holding that depriving individuals of a public hearing was an infringement of the right to a fair trial. Furthermore, with the new Criminal Code and the Code of Criminal Procedure, which came into force on 1 June 2005, the practice of issuing penal orders ceased to exist. 40. However, the Court observes that, in accordance with the relevant domestic law prevailing at the time of the events, no public hearing was held during the applicants' prosecution. Both the Izmir Magistrates' Court, which issued the penal orders and fined the applicants, and the Izmir Criminal Court, which examined their objections, took their decisions on the basis of the documents in the case files. The applicants were not given the opportunity to defend themselves in person or through a lawyer before the courts which determined their cases. The Court, therefore, considers that they were not able to participate in the criminal proceedings effectively. As regards the subsequent procedure which started upon the written order issued by the Minister of Justice on 29 January 2003, the Court notes that no defence submissions were taken from the applicants and the other co‑accused during the proceedings, which ended without curing or providing redress for the earlier defects (see, a contrario, Şentuna v. Turkey (dec.), no. 71988/01, 25 January 2007). 41. In view of the above, the Court concludes that the procedure followed by the judicial authorities prevented the applicants from exercising their defence rights properly and thus rendered the criminal proceedings unfair. 42. Consequently, there has been a violation of Article 6 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 43. Relying on Article 10 of the Convention, the second applicant alleged that her right to freedom of expression had been infringed, as she had been convicted of taking part in a movement and participating in a collective press declaration criticising the military actions of the USA in Afghanistan. 44. Article 10 of the Convention, in its relevant part, provides as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the prevention of disorder or crime, ...” A. Admissibility 45. 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. Whether there was interference 46. The Government denied that there had been interference, arguing that the second applicant had not been sentenced for making a press declaration, but for failing to comply with the Associations Act (Law no. 2908) which had been in force at the time. They maintained that, according to section 34 of that Act, associations could only form federations and confederations. 47. The second applicant contested these arguments and claimed that her conviction constituted an interference with her right to freedom of expression within the meaning of Article 10 of the Convention. 48. The Court notes that this case differs from a number of other cases concerning freedom of expression against Turkey that have come before it. In the instant case, the second applicant was convicted under section 34 of the Associations Act for her participation in the “Platform of Conscientious Objectors to War”, which was a civil society movement initiated by several local NGOs to protest against the military actions of the USA in Afghanistan. As indicated in the public prosecutor's indictment dated 3 December 2001, this “platform” was not a legal person in domestic law. 49. The Court observes that the local NGOs which formed the Platform, including the Izmir Human Rights Association, made a joint press declaration on 9 October 2001 and the applicant, in her capacity as a board member of the Association, was convicted on 31 December 2001 on the basis of section 34 of the Associations Act. The Court considers that the second applicant's conviction and sentence for being part of a movement whose aim was to draw attention to a topical issue at the time constituted an interference with her freedom of expression. Thus, in order to be compatible with Article 10, that interference must satisfy three conditions: it must be “prescribed by law”, pursue one or more legitimate aims under the second paragraph of the provision and be “necessary in a democratic society” to achieve those aims. 2. Was the interference “prescribed by law”? 50. The Government considered that the interference was prescribed by section 34 of the Associations Act, which prevented associations from forming or being part of a legal entity other than a federation or confederation. 51. The Court reiterates that the expression “in accordance with the law” not only requires that the impugned measure should have some basis in domestic law, but also refers to the quality of the law in question, requiring that it should be accessible to the person concerned and foreseeable as to its effects (see Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000‑V). It notes that the scope of the notion of foreseeability depends to a considerable degree on the content of the impugned text, the field it is designed to cover and the number and status of those to whom it is addressed (see Gorzelik and Others v. Poland [GC], no. 44158/98, § 65, 17 February 2004). 52. In the instant case, the Court is called upon to examine whether, in the light of the particular circumstances of the case, section 34 of the Associations Act relied on by the Government had the requisite quality of law, i.e. whether it was sufficiently accessible and foreseeable. 53. As regards accessibility, the Court notes that the provision satisfied this condition, as the Associations Act had been published in the Official Gazette of 7 October 1983. 54. On the issue of foreseeability, the Court observes that the wording of section 34 stipulated that associations could only form federations and confederations. However, in the Court's view, this wording was not sufficiently clear to enable the members of the applicant's Association to have realised that rallying to a movement or “platform” would lead to criminal sanctions being imposed on them. The Court finds it difficult to see how supporting such a movement could be deemed to amount to the formation of an organisation within the meaning of Section 34. It considers that the domestic courts thus extended the scope of section 34 beyond that which could have been reasonably foreseen in the circumstances of the case (cf. Karademirci and Others v. Turkey, nos. 37096/97 and 37101/97, § 42, ECHR 2005‑I). 55. As a result, in sentencing the second applicant to a fine, and notwithstanding the fact that this sentence was subsequently suspended, the domestic courts failed to observe the condition of foreseeability. Accordingly, the interference with the applicant's freedom of expression was not prescribed by law. That being so, the Court is not required to determine whether this interference pursued a legitimate aim or whether it was proportionate to the aim pursued. 56. The Court concludes, therefore, that there has been a violation of Article 10 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 57. The second applicant also relied on Article 11 of the Convention, complaining that she had been convicted, pursuant to Sections 4 and 50 of the Associations Act, for not annulling the membership of thirteen persons, including her own, of the Human Rights Association. 58. The Government denied the allegation, stating that the second applicant had been sentenced to a fine because of a failure to comply with a procedural obligation under Section 4 of the Act. She had not been convicted on account of the aims, political stance or activities of the Association. 59. Article 11 of the Convention, in its relevant part, provides as follows: “1. Everyone has the right to freedom of peaceful assembly and to freedom of association... 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society ... for the prevention of disorder or crime ...” A. Admissibility 60. 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. Whether there was interference 61. The Government maintained that there had been no interference with the second applicant's rights under Article 11 of the Convention. 62. The Court considers that the second applicant's conviction on the membership question constituted, in itself, an interference with her rights under Article 11. 2. Was the interference “prescribed by law”? 63. The Government contended that the second applicant's conviction was prescribed by law, namely the Associations Act, and that it had pursued the legitimate aim of preventing disorder. 64. The second applicant maintained that the interference in question was not prescribed by law, as at the material time the law stipulated that only those who had been convicted of certain offences were not entitled to be members of an association. However, she had had no prior conviction which would have required the annulment of her membership. 65. As to the requirement of legality, according to the Court's case-law, which is also mentioned above (paragraph 51), the expression “in accordance with the law” refers to the quality of the legislation in question. Domestic law must afford a measure of protection against arbitrary interference by public authorities with Convention rights, in respect of which the rule of law, one of the basic principles of a democratic society, would not condone unfettered powers being conferred on the executive. Consequently, the law must indicate with sufficient clarity the scope of any executive discretion and the manner of its exercise (see Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 84, ECHR 2000-XI). It must furthermore provide adequate and effective safeguards against abuse, which may in certain cases include procedures for effective scrutiny by the courts (see, Glas Nadezhda EOOD and Elenkov v. Bulgaria, no. 14134/02, § 46, 11 October 2007). 66. Turning to the present case, the Court notes at the outset that the interference with the second applicant's freedom of association stemmed from Sections 4 and 16 of the Associations Act, which provided that those who had been convicted of certain offences were not entitled to become members of an association. The Court observes that the second applicant contended that there had been no reason to terminate the membership of the thirteen people, including her own. She maintained that, although she had been taken into custody in 1999, she had been released and no criminal proceedings had been brought against her at that time. The Court is persuaded by the applicant's claim in the light of the Izmir Governor's letter of 10 July 2001 (paragraph 5 above). Consequently, the Government have not demonstrated why the public authorities could otherwise have legitimately required the annulment of the applicant's membership. 67. This element leads the Court to conclude that the second applicant was deprived of proper legal protection against arbitrary interference with her freedom of association, as there was a failure to meet the requirements of lawfulness. That being so, the Court is again not required to determine whether this interference pursued a legitimate aim or whether it was proportionate to the aim pursued. 68. There has therefore been a violation of Article 11 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 69. 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 70. Both applicants requested compensation for the pecuniary damage resulting from their obligation to pay a fine. Furthermore, they requested EUR 1,000 and EUR 1,750, respectively, for non-pecuniary damage. 71. The Government contested these claims. 72. As regards pecuniary damage, the Court notes that it cannot speculate as to what the outcome of proceedings compatible with Article 6 of the Convention would have been. Accordingly, it makes no award under this head (see Karahanoğlu v. Turkey, no. 74341/01, § 43, 3 October 2006). 73. Moreover, the Court considers that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage suffered by the first applicant. 74. As regards the second applicant, in view of the violations found under Articles 10 and 11 of the Convention, and ruling on an equitable basis, the Court awards EUR 1,000 for her non-pecuniary damage. B. Costs and expenses 75. The applicants claimed 2,750 new Turkish liras (YTL) and YTL 5,400 respectively for the costs and expenses incurred before the Court. In respect of their claims, they referred to the Izmir Bar Association's Scale of Fees. 76. The Government contested the claims. 77. 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, the applicants have not substantiated that they have actually incurred the costs so claimed. Accordingly, it makes no award under this head. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the remainder of the applications admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention in respect of both applicants; 3. Holds that there has been a violation of Article 10 of the Convention in respect of the second applicant; 4. Holds that there has been a violation of Article 11 of the Convention in respect of the second applicant; 5. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the first applicant; 6. Holds (a) that the respondent State is to pay the second applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros) in respect of non-pecuniary damage, to be converted into New Turkish liras at the rate applicable at the date of settlement and free of any taxes or charges that may be payable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 7. Dismisses the remainder of the applicants' claim for just satisfaction. Done in English, and notified in writing on 18 March 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Sally DolléFrançoise Tulkens Registrar President [1]1. Approximately equivalent to 100 euros (EUR) at the time. [2]1. Approximately equivalent to EUR 167 at the time.

THIRD SECTION CASE OF DIMITRIU AND DUMITRACHE v. ROMANIA (Application no. 35823/03) JUDGMENT STRASBOURG 20 January 2009 FINAL 20/04/2009 This judgment may be subject to editorial revision. In the case of Dimitriu and Dumitrache v. Romania, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Elisabet Fura-Sandström,Corneliu Bîrsan,Boštjan M. Zupančič,Alvina Gyulumyan,Egbert Myjer,Luis López Guerra, judges,and Santiago Quesada, Section Registrar, Having deliberated in private on 16 December 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 35823/03) 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, Mr Şerban Alexandru Dimitriu and Mrs Rosemarie (Roza Maria) Barbara Dumitrache (“the applicants”), on 11 September 2003. The second applicant also has German nationality. 2. The applicants were represented by Ms E. Crângariu, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu. The German Government did not make use of their right to intervene (Article 36 § 1 of the Convention). 3. On 5 September 2007 the President of the Third 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 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicants were born in 1947 and 1960 respectively and live in Bucharest and Wuppertal (Germany) respectively. 5. On 3 October 1941 the Botoşani County Court, following a division of an inheritance, assigned to N.M., inter alia, 151,005 sq. m of forest land situated on the Buneni estate and 100,000 sq. m of forest land situated on the Dângeni estate. 6. On 4 October 2000 the applicants, together with Z.D., as inheritors of N.M., brought proceedings to annul an administrative decision and to recover possession of 5,229 sq. m and 10,480 sq. m of forest land respectively. On 26 February 2001 the Săveni Court of First Instance dismissed the action as groundless, considering that the applicants had not followed the procedure provided for by Law no. 18/1991 in its original wording, but had introduced their request after Law no. 169/1997 came into force. 7. The applicants appealed. On 19 June 2001 the County Court upheld the action in respect of the first applicant, allowing him to recover possession of 5,229 sq. m of forest in Dângeni village, and dismissed it regarding the second applicant, as she had not proved her Romanian citizenship. 8. The second applicant continued the proceedings with a further appeal. On 12 March 2002 the Suceava Court of Appeal upheld the appeal, stating that the lower courts had not considered the case on the merits in respect of the second applicant, and quashed the previous judgment in part, sending the case back for retrial. 9. On 14 November 2002, after a fresh examination in respect of the second applicant, the County Court allowed her to recover possession of 9,542 sq. m of forest land in Dângeni village. 10. The second applicant lodged an appeal on points of law alleging, inter alia, that she had not received the costs of the proceedings and that she had received a smaller area of land. On 11 March 2003 the Court of Appeal by a final decision dismissed her appeal as groundless. 11. On 29 May and 17 July 2003 the applicants requested the Dângeni Town Council and Botoşani Prefecture respectively to enforce the judgments in their favour. On 5 August 2003 the Town Council informed them that it had submitted the documentation to the competent authorities in order to issue the ownership titles. 12. On 9 September 2005 the applicants together with Z.D. claimed before the Town Council recovery of possession of 78,460 sq. m of forest land under Law no. 247/2005, of which 20,917 sq. m was for the first applicant and 41,834 sq. m for the second. They submitted a certificate of inheritance issued on 29 July 2002, which confirmed them as inheritors of N.M., with a quota of one-twelfth and two-twelfths respectively, together with Z.D., E.K., I.M. and A.M. They did not mention the judgments of 19 June 2001 and 14 November 2002 in their request. 13. On 12 January 2007 the Botoşani county commission for the application of property laws (“the county commission”), at the proposal of the local commission in Dângeni for the application of property laws (“the local commission”), decided to recover possession of 78,100 sq. m of forest land at Dângeni in favour of the applicants, together with Z.D., I.M. and A.M., as inheritors of N.M. However, the county commission rejected the proposal to allow the same beneficiaries to recover possession of a further 125,837 sq. m plot of forest land at Buneni. An official record of 30 January 2008 signed by the first applicant also in his capacity as legal representative of the other four beneficiaries, certified that the five inheritors had been allowed to take possession of 78,102 sq. m of forest land, as provided in the decision of 12 January 2007 of the county commission. 14. The applicants together with Z.D., I.M. and A.M. contested before the court the refusal of the county commission to allow them to recover possession of the plot of 126,000 sq. m of forest land at Dângeni. 15. On 25 April 2007 the Court of First Instance upheld the action, noted that the place called Buneni was situated in Dângeni village, annulled in part the administrative decision and allowed the applicants together with the three other persons to recover possession of 126,000 sq. m of forest land at Dângeni. The court also noted that the applicants had been allowed to recover possession of forest land before Law no. 247/2005 came into force and also under the same law by the administrative decision of 12 January 2007. On 25 September 2007 the County Court dismissed in a final decision an appeal by the county commission. 16. On 24 January 2008 the local commission certified in an official record that the applicants together with Z.D., I.M. and A.M. had been allowed to take possession of the 78,102 sq. m of forest land and that it would prepare the necessary documentation and transmit it to the county commission to approve the allocation of the 125,837 sq. m of forest land. 17. On 30 January and 22 September 2008 the National Forest Administration informed the Agent of the Government that by the official record of 30 January 2008 the applicants were allowed to take possession of 8,333 sq. m and 16,666 sq. m of forest land respectively and that these areas included the two plots provided in the judgments of 19 June 2001 and 14 November 2002 respectively. The two plots of 8,333 sq. m and 16,666 sq. m represented the applicants’ quota out of the 100,000 sq. m of forest land situated on the Dângeni estate, which had belonged to N.M. 18. On 8 February 2008 the first applicant requested the county commission to enforce the judgment of 25 April 2007. 19. So far the applicants have not received an ownership title. II. RELEVANT DOMESTIC LAW 20. The relevant domestic law is summarised in the judgments of Sabin Popescu v. Romania (no. 48102/99, §§ 42-46, 2 March 2004) and Drăculeţ v. Romania, no. 20294/02, § 29, 6 December 2007). THE LAW I. SCOPE OF THE APPLICATION 21. In their observations of 30 January 2008 the Government mentioned the judgment of 25 April 2007 of the Săveni Court of First Instance, considering that the plot of 127,500 sq. m of forest land at Buneni was not to be included in the object of the present application. In their supplementary observations of 29 September 2008, the Government submitted that the subject matter of the present application was represented only by the judgments of 19 June 2001 and 14 November 2002. 22. In their observations of 21 March and 24 July 2008 the applicants also complained of the non-enforcement of the judgment of 25 April 2007 of the Săveni Court of First Instance. 23. The Court reiterates that the present application has been communicated following the decision to examine its merits at the same time as its admissibility, as provided by Article 29 § 3 of the Convention. It further recalls that it has already decided that there is no need to give a ruling on the complaints raised after the communication of an application to the Government (see Vigovskyy v. Ukraine, no. 42318/02, § 14, 20 December 2005). 24. Since the complaint in question was not raised before the communication of the present application, it is not part of the case referred to the Court. However, the applicants have the opportunity to lodge a new application in respect of that complaint. II. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 25. The applicants complained that the non-enforcement of the judgments of 19 June 2001 and 14 November 2002 respectively had infringed their rights guaranteed by Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention, which read, in so far as relevant, as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 26. The Government contested that argument. A. Admissibility 27. 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 28. The Government considered that the two plots of forest land claimed and granted to the applicants by the two judgments had also been included in the applicants’ request of 9 September 2005 and therefore the authorities had enforced the two judgments by allowing the applicants to take possession on 30 January 2008 of even larger areas of land than provided in the two judgments. They mentioned that the difference of land that had not been returned to N.M.’s inheritors belonged to E.K., who had not claimed it. They also submitted that the authorities had been diligent and that the delay in enforcement was due to objective reasons. 29. The applicants disagreed. In particular, they submitted that in their request of 9 September 2005 they had not included the land claimed on 4 October 2000, but only the difference of land to which they had a right of inheritance. The land granted by the two judgments was not included in the land of which they had been allowed to take possession on 30 January 2008, and in any event they have not received an ownership title. They also submitted that the Government had not cited any exceptional circumstances that could have made the judgments objectively impossible to enforce. 30. The Court notes that the judgments of 19 June 2001 and 14 November 2002 respectively allowed the applicants to recover possession of forest land. It thus conferred on the applicants a legitimate expectation of being allowed to take possession of the land mentioned in those judgments and of subsequently obtaining an ownership title, as provided by the internal legislation (see the relevant domestic law in Drăculeţ, cited above, § 29). 31. There is disagreement between the parties as to whether the plots of land granted by the two judgments were also claimed on 9 September 2005 and subsequently included in the land of which the applicants were allowed to take possession on 30 January 2008. In this respect, the Court notes that on 9 September 2005 the applicants claimed 20,917 sq. m and 41,834 sq. m of forest land respectively (see paragraph 12 above) and that those lands represented the areas to which they were entitled out of the total area which belonged to N.M., according to their inheritance quota of one-twelfth and two-twelfths respectively. Therefore the Court agrees with the Government that the applicants claimed on 9 September 2005 the whole land to which they were allegedly entitled in accordance with their inheritance quota, including thus the land that they had already recovered in their capacity as inheritors of N.M. 32. The Court further notes that by the administrative decision of 12 January 2007 and the judgment of 25 April 2007 the applicants together with the other inheritors of N.M., excepting E.K., obtained recognition of their entitlement to all the forest land they had claimed as inheritors of N.M. (see paragraphs 13 and 15 above). The Government argues that the two plots of land mentioned in the judgments of 19 June 2001 and 14 November 2002 had been included in the land of which the applicants have been allowed to take possession on 30 January 2008. In this respect, the Court notes that those two judgments authorised the applicants to recover possession of forest lands in Dângeni village, without specifying a particular location, and that on 30 January 2008 the applicants were allowed to take possession, in the same Dângeni village, of larger surfaces of forest land than provided by those two judgments. Therefore the Court accepts the Government’s argument that the applicants were allowed to take possession of the forest lands granted by the 2001 and 2002 judgments. 33. However, in order for the applicants to fully enjoy the prerogatives conferred by the right of property over their lands, they must have not only a de facto possession, but also ownership titles certifying their right. Having regard to the fact that the applicants have not received an ownership title, the Court therefore considers, to this extent, that although the authorities had an obligation to enforce court judgments, namely by allowing the applicants to take possession of the relevant land and by providing them with a document of title to their land in the instant case, the judgments of 19 June 2001 and 14 November 2002 remain unenforced to date. Those judgments are nevertheless still valid, no proceedings having been instituted under Romanian law for their modification or annulment before the domestic courts. Apart from enforcement, it is only by such an annulment or substitution by the courts with an equivalent obligation that the continuing situation of non-enforcement may come to an end (see Sabin Popescu, cited above, § 54). 34. The Court notes that, in the present case, the authorities have failed to inform the applicants, by a formal decision, of the alleged objective impossibility of ad litteram performance of the above-mentioned judgments and to take all necessary steps for its equivalent enforcement. Moreover, the national courts have never ruled that the ad litteram enforcement of the judgments of 19 June 2001 and 14 November 2002 was bound to fail. 35. The Court has frequently found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in cases raising issues similar to the ones in the present case (see, among others, Sabin Popescu, cited above, and Dragne and Others v. Romania, no. 78047/01, 7 April 2005). 36. Having examined the material submitted to it, the Court notes that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. There has accordingly been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 37. The applicants relied on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, complaining that the solution was unfair, that the domestic courts had failed to assess the facts correctly, had misinterpreted the domestic law and had not given reasons for their decisions, that the proceedings had lasted too long and that they had not recovered the costs of the proceedings. 38. Having carefully considered the applicants’ submissions in the light of all the material in its possession, the Court finds that, in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. 39. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 40. 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 41. The applicants sought enforcement of the judgments of 19 June 2001 and 14 November 2002, namely to be allowed to take possession of those lands and to receive ownership titles. They also claimed jointly 2,432 euros (EUR) for the loss of profit or any benefit from their possessions, representing the value of the wood that could have been obtained and taking as reference a forest situated in the same place, five tables by the National Forest Administration for the productivity of different surfaces of forest land and an order of the Minister of Agriculture regarding the prices for 2008 for wooden materials. Were the Government continue not to enforce the two judgments, they claimed EUR 3,750 and EUR 7,500 respectively representing three times the value of their land, on the basis of a minimum amount of EUR 2,500 for one hectare, as provided by the National Agency for Cadastre and Land Registration. In respect of non-pecuniary damage, they claimed EUR 5,000 for each of them. 42. The Government noted that the applicants had already been allowed to take possession of their land and that they can no longer claim an equivalent amount for the value of their land. Regarding the loss of profit, the applicants did not submit relevant supporting documents such as an expert’s report or a court decision certifying a certain amount. Further, they considered that the finding of a violation would constitute in itself sufficient just satisfaction for any non-pecuniary damage which the applicants may have suffered. 43. The Court reiterates that, where it has found a breach of the Convention in a judgment, the respondent State is under a legal obligation to put an end to that breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 32, ECHR 2000-XI). 44. The Court considers, in the circumstances of the case, that the ad litteram enforcement of the judgments of 19 June 2001 and 14 November 2002 would put the applicants as far as possible in a situation equivalent to the one in which they would have been if there had not been a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. In this connection, the Court considers that the applicants have been enabled to take possession of their forest lands specified in those judgments. Therefore it holds that the respondent State is to provide the applicants with title in respect of that land. 45. As regards the amount of money alleged by the applicants for the loss of profit or any benefit from their possessions, the Court rejects this claim, taking into account on the one hand that it has ordered restitutio in integrum as reparation under Article 41 of the Convention and on the other hand that granting a sum of money on this basis would be a speculative process, having regard to the fact that the profit from a possession depends on several factors (see Luca v. Romania, no. 1204/03, § 40, 13 May 2008). 46. The Court considers that the serious interference with the applicants’ right of access to a court and to the peaceful enjoyment of their possessions has caused a moral prejudice to the applicants. Making an assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards them jointly EUR 6,000 in respect of non‑pecuniary damage. B. Costs and expenses 47. The applicants also claimed EUR 1,510 for costs and expenses incurred before the domestic courts and before this Court, representing the fees for the lawyer, postal service, photocopies and transport, broken down in several tables. They submitted invoices in respect of these fees. 48. The Government contested the claim on the ground that they were partly unsubstantiated, that no causal link between the payment of some fees and the present case could be found, and that the applicants had not submitted contracts for legal services. 49. 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 information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,000 covering costs under all heads. C. Default interest 50. 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 1. Declares the complaints concerning Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1; 3. Holds (a) that the respondent State shall ensure, by appropriate means, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the enforcement of the judgments of 19 June 2001 and 14 November 2002 of the Botoşani County Court by providing them with ownership titles; (b) that the respondent State is to pay jointly the applicants, within the same three months, the following amounts, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses; (c) 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; 4. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 20 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaJosep CasadevallRegistrarPresident

FOURTH SECTION CASE OF K.J. v. POLAND (Application no. 30813/14) JUDGMENT STRASBOURG 1 March 2016 FINAL 01/06/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of K.J. v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: András Sajó, President,Nona Tsotsoria,Paulo Pinto de Albuquerque,Krzysztof Wojtyczek,Egidijus Kūris,Iulia Antoanella Motoc,Gabriele Kucsko-Stadlmayer, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 9 February 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 30813/14) 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 K.J. (“the applicant”), on 12 April 2014. 2. The applicant was represented by Mr G. Thuan Dit Dieudonné, a lawyer practising in Strasbourg. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, of the Ministry of Foreign Affairs. 3. The applicant alleged mainly that the refusal of the Polish family court to order the return of his child in application of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, constituted a violation of his right for respect of his family life and a breach of Article 8 of the Convention. 4. On 15 September 2014 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. Background 5. The applicant was born in 1978. He is Polish and lives in Kent, the United Kingdom. He is married to M.J., who is also Polish. In 2005 the couple moved to the United Kingdom. Their daughter was born there in January 2010. Parental responsibility was exercised jointly by both parents. B. Child retention and proceedings under the Hague Convention 6. On 17 July 2012 M.J. and the child went to Poland on holiday, with the applicant’s consent. On 9 September 2012 M.J. informed the applicant that she was not coming back to the United Kingdom with the child. 7. On 21 September 2012 the applicant applied to the United Kingdom Central Authority for a return order for the child under the Hague Convention. 8. It appears that in mid-October 2012 the application was registered with the Grudziądz District Court. Judge D.K. was assigned to preside over the case. 9. In response to the applicant’s request, M.J. submitted that in 2011 she and her husband had become distant from each other; the applicant had lost interest in his family and had been spending his spare time playing computer games. For those reasons, and also out of fear that the child would never again be allowed to leave the United Kingdom, M.J. did not agree to her daughter’s returning to the United Kingdom alone and informed the domestic court that she did not wish to go back there with the child. 10. The first hearing was held on 19 December 2012 before the Grudziądz District Court, with Judge D.K. presiding. The applicant and his lawyer attended the hearing. 11. The second hearing was held on 4 February 2013 before the same judge. The applicant and his lawyer attended the hearing. The domestic court heard two witnesses and ordered a report of experts in psychology from the Family Consultation Centre (Rodzinny Ośrodek Diagnostyczno Konsultacyjny “RODK”). 12. On 22 March 2013 the experts examined the applicant, M.J. and the child, who was three years old at the time. The report was issued on 17 April 2013. 13. The third hearing was held on 8 May 2013 before Judge D.K. At this hearing, the Grudziądz District Court decided to dismiss the applicant’s request for the child’s return (III Nsm 999/12). 14. The first-instance court ruled on the basis of the following evidence: testimony of the applicant, M.J. and the members of both families and the RODK experts’ report. 15. The RODK experts were ordered to make the following assessment: “whether moving [the child] into her father’s care, linked with her separation from the mother, would disturb [the child’s] sense of security and would affect her emotional state in a negative way; or is it recommended, [with a view to] the adequate psycho-physical development of the child, to [put the child under the father’s care] linked with [giving] an order to surrender the child by the mother.” 16. The experts concluded that “the child’s return to the United Kingdom and her separation from the mother”, her primary caregiver, “would cause more emotional harm to the child than the lack of daily contact with her father.” In particular, the child’s sense of security and stability could be disturbed. To this effect the report read as follows: “Considering the [young] age and the sex of the child, it must be stated that the mother is currently best suited to satisfy her daughter’s needs.” The experts also noted that the child was emotionally attached to both parents; she was developing well; perceived Poland and the United Kingdom on an equal footing; spoke Polish and had adapted well to her new life in Poland. It was recommended that the child should stay with her mother in Poland and have regular contact with her father. 17. The first-instance court considered that the RODK’s report was thorough, clear and of a high evidentiary value. 18. On the merits, the Grudziądz District Court considered that it was called to examine “the relationship between the child and [each of] the parents, her physical and psychological development and also, any [possible] physical or psychological harm [which could occur] in the event of the child’s return to her father without the mother.” 19. The domestic court attached importance to the young age of the child (who was three years and four months old at the time of the ruling) and the fact that the mother had always been the child’s primary caregiver. The reasons for the mother’s refusal to return to the United Kingdom together with the child were not discussed by the domestic court. The district court held, relying on the experts’ report, that there was a grave risk of psychological harm if she were to return to the United Kingdom without her mother. It was noted that Article 13 (b) of the Hague Convention protected abducted children to such a great extent that it did not allow for their return if that was going to place them in a “disadvantageous situation” (w niekorzystnej sytuacji). 20. The applicant appealed, arguing among others the following points of fact and law: the first-instance court ruled in breach of Article 13 (b) of the Hague Convention, firstly in that they concluded that in the circumstances of the case there was a grave risk that the child’s return to the United Kingdom would expose her to intolerable psychological harm and would place her in a disadvantageous situation, and secondly in that they wrongly assumed that the child would have to be separated from the mother even though the latter had not cited any objective obstacles to her returning to the United Kingdom; the first-instance court ruled in breach of Article 3 of the Convention on the Rights of the Child and its general directive that the best interest of the child be protected; the facts as established by the domestic court contradicted the evidence produced in the course of the proceedings; the court’s conclusion that the child’s return would expose her to intolerable psychological harm contradicted the findings of the expert report; and the court should not have refused to adjourn the hearing at which the applicant was not represented by a lawyer. 21. At the appellate hearing, the applicant also argued (6) that the experts in psychology who had drafted the RODK’s report for the first‑instance court were incompetent. 22. On 14 October 2013 the Toruń Regional Court dismissed the appeal (IV Ca 1865/12). 23. The appellate court fully relied on the findings of fact made by the first-instance court, and held that the child’s return to the United Kingdom with or without the mother would place her in an intolerable situation (“w sytuacji nie do zniesienia”). Firstly, in view of the child’s very young age and the fact that since the retention the child had been under her mother’s care practically round the clock and that her contact with the applicant had been rare, the child’s separation from her mother would cause negative and irreversible consequences. Secondly, the child’s return with her mother would not have a positive impact on the child’s development either. To this effect, it was noted that M.J. had never adapted to her life in the United Kingdom; she was in conflict with the applicant and her departure from Poland would be against her will and forced by the circumstances. 24. As to the remaining grounds of the applicant’s appeal, the regional court ruled in the following manner: contrary to the applicant’s impression, the RODK’s report was clear and adamant in its conclusion that the child’s best interest would be better served if she were allowed to stay in Poland with her mother; in view of the fact that the applicant’s lawyer had gone on holiday and the applicant had not agreed to be represented by a substitute lawyer, granting his motion for adjournment was not justified; and the argument about the incompetence of the RODK’s experts was, firstly, belated (the applicant had not raised that issue before the first-instance court or in his appeal) and, secondly, inconsistent with the applicant’s reliance on the impugned report in support of his remaining arguments. C. The applicant’s contact with the child, divorce application and recent developments 25. At the first hearing, held on 19 December 2012 by the Grudziądz District Court, the applicant’s lawyer applied, expressly citing Article 21 of the Hague Convention, for arrangements for organising and securing the effective exercise of the applicant’s right of contact during the Hague Convention proceedings. 26. The domestic court did not rule on that application. 27. On 28 December 2012 the applicant applied to the Grudziądz District Court for a contact order in respect of the child. He did not rely on Article 21 of the Hague Convention. He asked, inter alia, for an interim order to be issued obliging M.J. for the duration of the Hague Convention proceedings to allow him to take the child to his house every second and fourth weekend of the month from 3 p.m. on Friday until 8 p.m. on Sunday, and to talk to the child by telephone or Skype every Monday, Wednesday and Friday between 4 p.m. and 7 p.m. 28. On 28 February 2013 the Grudziądz District Court, with D.K. as the presiding judge, decided under Article 445 1 § 1 and 2 of the Code of Civil Procedure to stay the proceedings concerning the applicant’s contact with the child until the end of the couple’s divorce proceedings, which had been instituted before the Toruń Regional Court on 14 January 2013 (III. R. Nsm 35/13). 29. On 25 March 2013 the divorce application lodged by M.J. (IC 117/13) was rejected by the Toruń Regional Court, with S.M. as the presiding judge accompanied by two lay judges. The regional court favoured the jurisdiction of the English courts because the last common place of residence of the couple was in Maidstone, the United Kingdom. On 24 June 2013 the Gdańsk Court of Appeal, with D.K. as the presiding judge, dismissed M.J.’s interlocutory appeal against that decision. 30. The applicant submitted that when the Hague Convention proceedings had been pending in Poland, he had seen his daughter on several occasions, in the mother’s house and in her presence. 31. On 28 November 2014 the Grudziadz District Court issued a decision on the applicant’s contact with his daughter. A copy of this decision has not been submitted to the Court. It appears that the applicant was authorised to see his daughter the second and the fourth weekend of every month; during one week of winter holidays; during two weeks of summer holidays and on selected days of Christmas and Easter holidays. It appears that the applicant did not appeal against this decision. On 31 August 2015 the Grudziądz District Court, with D.K. as presiding judge, confirmed that the above-mentioned decision was binding and enforceable as of 8 July 2015. 32. Divorce proceedings are currently pending in the United Kingdom. II. RELEVANT INTERNATIONAL AND COMPARATIVE LAW A. The Hague Convention 33. The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction which has been ratified by Poland (Dz.U.1995 r. Nr 108, poz. 528, date of entry onto force 1 November 1992) and the United Kingdom provides, in so far as relevant, as follows. “... Article 3 The removal or the retention of a child is to be considered wrongful where - a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State. Article 4 The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years. ... Article 11 The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be. Article 12 Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child. Article 13 Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that - a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence. ... Article 16 After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice. Article 19 A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue. ...” B. The Pérez-Vera Explanatory Report on the 1980 Hague Child Abduction Convention 34. The Explanatory Report on the 1980 Hague Child Abduction Convention, prepared by Elisa Pérez-Vera and published by The Hague Conference on Private International Law (HCCH) in 1982 ( “the Pérez‑Vera Report”), provides the following comments on the notion of “the best interest of the child”: “... ‘the legal standard ‘the best interest of the child’ is that at first view of such vagueness that it seems to resemble more closely a sociological paradigm than a concrete juridical standard ... the general statement of the standard does not make it clear whether ‘the interest’ of the child to be served are those of the immediate aftermath of the decision, of the adolescence of the child, of young adulthood, maturity, senescence or old age’ ...” (§21, p. 431) “... [the philosophy of the Convention] can be defined as follows: the struggle against the great increase on international child abductions must always be inspired by the desire to protect children and should be based upon an interpretation of their true interests...the right not to be removed or retained in the name of more or less arguable rights concerning its person is one of the most objective examples of what constitutes the interests of the child...’the presumption generally stated is that the true victim of the ‘childnapping’ is the child himself, who suffers from the sudden upsetting of his stability, the traumatic loss of contact with the parent who has been in charge of his upbringing, the uncertainty and frustration which come with the necessity to adapt to a strange language, unfamiliar cultural conditions and unknown teachers and relatives’ ...” (§24, pp. 431 and 432) “It is thus legitimate to assert that the two objects of the Convention – one preventive, the other designed to secure the immediate reintegration of the child into his habitual environment – both correspond to a specific idea of what constitutes the ‘best interests of the child’ ... However ... it has to be admitted that the removal of the child can sometimes be justified by objective reasons which have to do either with its person, or with the environment with which it is most closely connected ...” (§ 25, p. 432)” 35. As a consequence, the Hague Convention contains a number of clearly derived from a consideration of the interest of the child, namely that of a serious risk that a child’s return would expose him or her to “physical or psychological harm” or otherwise place the child in an “intolerable situation”. 36. The Pérez-Vera Report contains the following general comments about the exceptions to the principle of the child’s prompt return under Article 13 (b): “... [the exceptions] to the rule concerning the return of the child must be applied only as far as they go and no further. This implies above all that they are to be interpreted in a restrictive fashion if the Convention is not to become a dead letter... The practical application of this principle requires that the signatory States be convinced that they belong, despite their differences, to the same legal community within which the authorities of each State acknowledge that the authorities of one of them – those of the child’s habitual residence – are in principle best placed to decide upon questions of custody and access. As a result, a systematic invocation of the said exceptions, substituting the forum chosen by the abductor for that of the child’s residence, would lead to the collapse of the whole structure of the Convention by depriving it of the spirit of mutual confidence which is its inspiration...” (§34, pp. 434 and 435) “... the exceptions [in Articles 13 and 20] do not apply automatically, in that they do not invariably result in the child’s retention; nevertheless, the very nature of these exceptions gives judges a discretion – and does not impose upon them a duty – to refuse to return a child in certain circumstances ...” (§113 p. 460) “... With regard to article 13, the introductory past of the first paragraph highlights the fact that the burden of proving the facts stated in sub-paragraphs a and b is imposed on the person who opposes the return of the child ...” (§ 114, p. 460) “... The exceptions contained in [article 13] b deal with situations ... where the return of the child would be contrary to its interests ... Each of the terms used in this provision, is the result of a fragile compromise reached during the deliberations of the Special Commission and has been kept unaltered. Thus it cannot be inferred, a contrario, from the rejection during the Fourteenth Session of proposals favouring the inclusion of an express provision stating that this exception could not be invoked if the return of the child might harm its economic or educational prospects, that the exceptions are to receive a wide interpretation ...” (§116, p. 461) 37. With regard to Article 29 the Pérez-Vera Report states that the aim of the Hague Convention is to provide additional means of helping persons whose custody or contact rights have been breached. Those persons have a choice either to apply directly to the Central Authorities, as provided for in the Hague Convention, or to institute relevant proceedings before the authorities of the State where the child is located. In such a case, where the applicants have recourse to a direct action before the competent authorities, they can choose to submit their application “whether or not under the provisions” of the Hague Convention. In the latter case, according to the explanatory report, the authorities are not obliged to apply the provisions of the convention unless they have been incorporated in their domestic law. C. The International Convention on the Rights of the Child 38. The relevant provisions of the United Nations Convention on the Rights of the Child, signed in New York on 20 November 1989, read as follows: Preamble “The States Parties to the present Convention, ... Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community, Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding, ... Have agreed as follows: ... Article 3 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration... Article 7 1. The child shall be registered immediately after birth and shall have the right from birth... to know and be cared for by his or her parents... Article 9 1. States Parties shall ensure that a child shall not be separated from his or her parents against their will... Article 14 1. States Parties shall respect the right of the child to freedom of thought, conscience and religion. 2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child... Article 18 1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern. ...” D. European Union law 39. Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (known as “Brussels II bis Regulation”) reads, in particular, as follows: “... (12) The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity. This means that jurisdiction should lie in the first place with the Member State of the child’s habitual residence, except for certain cases of a change in the child’s residence or pursuant to an agreement between the holders of parental responsibility. (13) In the interest of the child, this Regulation allows, by way of exception and under certain conditions, that the court having jurisdiction may transfer a case to a court of another Member State if this court is better placed to hear the case. However, in this case the second court should not be allowed to transfer the case to a third court. ... (17) In cases of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this end the Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulation, in particular Article 11. The courts of the Member State to or in which the child has been wrongfully removed or retained should be able to oppose his or her return in specific, duly justified cases. However, such a decision could be replaced by a subsequent decision by the court of the Member State of habitual residence of the child prior to the wrongful removal or retention. Should that judgment entail the return of the child, the return should take place without any special procedure being required for recognition and enforcement of that judgment in the Member State to or in which the child has been removed or retained. ... Article 10 Jurisdiction in cases of child abduction In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and: (a) each person, institution or other body having rights of custody has acquiesced in the removal or retention; or (b) the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met: (i) within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained; (ii) a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within the time limit set in paragraph (i); (iii) a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to Article 11(7); (iv) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention. Article 11 Return of the child 1. Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter "the 1980 Hague Convention"), in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 shall apply. ... 3. A court to which an application for return of a child is made as mentioned in paragraph 1 shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law. Without prejudice to the first subparagraph, the court shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged. 4. A court cannot refuse to return a child on the basis of Article 13b of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return. 5. A court cannot refuse to return a child unless the person who requested the return of the child has been given an opportunity to be heard. ...” E. European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children 40. The European Convention of 20 May 1980 on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children (known as “Luxembourg Convention”) reads, in so far as relevant, as follows: “... Article 1 For the purposes of this Convention: a child means a person of any nationality, so long as he is under 16 years of age and has not the right to decide on his own place of residence under the law of his habitual residence, the law of his nationality or the internal law of the State addressed; ... d improper removal means the removal of a child across an international frontier in breach of a decision relating to his custody which has been given in a Contracting State and which is enforceable in such a State; improper removal also includes: i the failure to return a child across an international frontier at the end of a period of the exercise of the right of access to this child or at the end of any other temporary stay in a territory other than that where the custody is exercised; ... Article 5 1 The central authority in the State addressed shall take or cause to be taken without delay all steps which it considers to be appropriate, if necessary by instituting proceedings before its competent authorities, in order: ... b to avoid, in particular by any necessary provisional measures, prejudice to the interests of the child or of the applicant; ... Article 8 1 In the case of an improper removal, the central authority of the State addressed shall cause steps to be taken forthwith to restore the custody of the child where: a at the time of the institution of the proceedings in the State where the decision was given or at the time of the improper removal, if earlier, the child and his parents had as their sole nationality the nationality of that State and the child had his habitual residence in the territory of that State, and b a request for the restoration was made to a central authority within a period of six months from the date of the improper removal. ... Article 11 ... 3 Where no decision on the right of access has been taken or where recognition or enforcement of the decision relating to custody is refused, the central authority of the State addressed may apply to its competent authorities for a decision on the right of access, if the person claiming a right of access so requests. ... Article 19 This Convention shall not exclude the possibility of relying on any other international instrument in force between the State of origin and the State addressed or on any other law of the State addressed not derived from an international agreement for the purpose of obtaining recognition or enforcement of a decision. Article 20 1 This Convention shall not affect any obligations which a Contracting State may have towards a non-Contracting State under an international instrument dealing with matters governed by this Convention. 2 When two or more Contracting States have enacted uniform laws in relation to custody of children or created a special system of recognition or enforcement of decisions in this field, or if they should do so in the future, they shall be free to apply, between themselves, those laws or that system in place of this Convention or any part of it. In order to avail themselves of this provision the State shall notify their decision to the Secretary General of the Council of Europe. Any alteration or revocation of this decision must also be notified. III. RELEVANT DOMESTIC LAW 41. The amendment to the 1964 Code of Civil Procedure (Kodeks Postępowania Cywilnego) introduced on 19 July 2001, which entered into force on 27 September 2001 regulates the proceedings concerning the return of children under the Hague Convention (Articles 5981-59814 of the Code of Civil Procedure). Article 5982 provides that when proceedings under the Hague Convention are pending, the domestic court shall not, in principle, rule on the issue of parental rights and custody. Custody proceedings shall be stayed proprio motu until the end of the proceedings concerning the child’s return. Article 4451 operates in the general context of family disputes over minor children and provides that when proceedings for divorce are pending, separate proceedings concerning right of contact shall not be instituted or shall be stayed proprio motu if they had been instituted prior to the application for divorce. Under this provision, the issue of the right of contact shall be decided by the court before which the divorce proceedings are pending by means of interim procedure. Lastly, under paragraph 2 of this provision proceedings for the right of contact shall be resumed if the final and binding ruling ending the divorce proceedings is silent on the issue of contact. Otherwise, proceedings for the right of contact shall be discontinued. 42. Irrespective of the above-mentioned regulations, a party to civil proceedings is entitled to apply for an interim measure (Article 730 et al. of the Code of Civil Procedure). Article 755 of the Code of Civil Procedure specifically provides that matters of custody and contact with a child may be regulated by a court by means of an interim measure. Under Article 737 of the Code of Civil Procedure, an application for an interim measure shall be examined without undue delay, in principle no later than one week after the date of its lodging with the court. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION ON ACCOUNT OF THE OUTCOME THE PROCEEDINGS FOR THE CHILD’S RETURN UNDER THE HAGUE CONVENTION AND THE DECISION-MAKING PROCESS 43. The applicant complained of a breach of his right to respect for his family life under Article 8 of the Convention because of the dismissal of his Hague Convention request. The applicant elaborated on this complaint, indicating that the unfavourable outcome of the impugned proceedings resulted from the misapplication of the Hague Convention and from various alleged shortcomings in the decision-making process. Article 8 of the Convention reads as follows: “1. Everyone has the right to respect for his private and family life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 44. The Court notes that the application 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’ submissions 45. In his application to the Court, the applicant complained of a breach of Article 8 of the Convention on account of the outcome of his Hague Convention proceedings. In his subsequent observations on the case he specified a series of shortcomings in the decision-making process leading to the refusal to grant his Hague Convention request. 46. More specifically, the applicant submitted that the Polish family court had misapplied the Hague Convention procedure in that they had focused on two elements which were absent from the Hague Convention test under Article 13. Incidentally, these elements also constituted wrong assumptions, namely that the applicant’s daughter would have to be separated from her mother and that she would be placed in her father’s custody. To this effect, the applicant considered that the issue which had been put forward by the first-instance court to the RODK’s experts had been formulated erroneously de jure since the applicant’s request for the child’s return under the Hague Convention had not aimed at “moving the child into the father’s care” but simply at returning the child to her habitual place of residence regardless of who was responsible for her care. Firstly, such was the nature of the Hague Convention requests which pursued its restorative objective. And secondly, with regard to the applicant’s specific case, in the divorce proceedings pending in the United Kingdom the applicant had specifically asked for shared and not exclusive custody of his daughter. In the applicant’s opinion, the subsequent judicial examination of his Hague Convention request was likewise erroneously focused on those two elements. 47. The applicant also argued that the impugned decision of the domestic court, which resulted from an incorrectly broad interpretation of Article 13 (b) of the Hague Convention, was contrary to the child’s best interests within the meaning of that provision and instead protected the interests of the child’s mother, who had decided not to return to the United Kingdom without indicating any objective reasons for such a decision. 48. Moreover, the applicant submitted that the decision-making process leading to the adoption of the impugned decision was contrary to the procedural requirements of Article 8 of the Convention. 49. Firstly, in the applicant’s opinion, the Polish family court had taken too long to examine his Hague Convention request, in breach of the requirement of expeditious proceedings under Article 11 of the Hague Convention. Secondly, in the absence of a decision to adjourn, the applicant had to attend one hearing before the first-instance court without a lawyer. Thirdly, the presiding judge who issued the first-instance ruling was to be biased because she “welcomed the divorce petition” filed by the applicant’s wife. Fourthly, the RODK’s report was, in the applicant’s view, issued unlawfully because the appointment of expert psychologists and their professional liability was not regulated under Polish law at the time. And fifthly, under the Hague Convention and under the Brussels II Regulation, the Polish courts should not have examined the divorce application brought by M.J. as long as the applicant’s request for the child’s return was pending. 50. The Government refrained from making comments on the merits of the case. 2. The Court’s assessment (a) General principles 51. The general principles on the relationship between the Convention and the Hague Convention, the scope of the Court’s examination of child international child abduction applications, the best interests of the child and on the procedural obligations of the States, are laid down in the Court’s Grand Chamber judgment in the case of X v. Latvia (see X v. Latvia [GC], no. 27853/09, §§ 93-102, 107 ECHR 2013) and also in a number of other judgments concerning proceedings for return of children under the Hague Convention (see Maumousseau and Washington v. France, no. 39388/05, § 68, 6 December 2007; Ignaccolo-Zenide v. Romania, no. 31679/96, § 102, ECHR 2000‑I; Iosub Caras v. Romania, no. 7198/04, § 38, 27 July 2006; Shaw v. Hungary, no. 6457/09, § 72, 26 July 2011; and Adžić v. Croatia, no. 22643/14, §§ 93-95, 12 March 2015). (b) Application of the general principles to the present case 52. In the instant case, the primary interference with the applicant’s right to respect for his family life may not be attributed to an action or omission by the respondent State, but rather to the action of the applicant’s wife and his child’s mother, a private individual, who has retained their daughter in Poland (see López Guió v. Slovakia, no. 10280/12, § 85, 3 June 2014). 53. That action nevertheless placed the respondent State under positive obligations to secure for the applicant his right to respect for his family life, which included taking measures under the Hague Convention with a view to ensuring his prompt reunification with his child (see Ignaccolo-Zenide, cited above, § 94). 54. In the present case, while holding that the retention of the child away from her habitual residence in the United Kingdom was wrongful within the meaning of Article 3 of the Hague Convention, the domestic courts took twelve months to examine the applicant’s request for the return of his daughter, and eventually dismissed it on the ground that her return without her mother would place the girl in an intolerable situation within the meaning of Article 13 (b) of the Hague Convention. 55. The Court finds therefore that the events under consideration in the instant case, in so far as they give rise to the responsibility of the respondent State, amounted to an interference with the applicant’s right to respect for his family life (see Iosub Caras, cited above, § 30). 56. The Court also notes that this interference had its legal basis in the Hague Convention, which entered into force in Poland in 1992 and which forms part of its domestic law. Moreover, the domestic courts acted in what they considered to be pursuit of the legitimate aim of protecting the rights and freedoms of the child and her mother (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, §§ 99 and 106, ECHR 2010, and, mutatis mutandis, Maummousseau, cited above, § 61). 57. The Court must therefore determine whether the interference in question was “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention, interpreted in the light of the relevant international instruments, and whether when striking the balance between the competing interests at stake appropriate weight was given to the child’s best interests, within the margin of appreciation afforded to the State in such matters. 58. The Court must be also aware of the context which is all-important for the interpretation of treaties. The 1980 Hague Convention is not the only instrument regulating matters connected with child abduction in relations between Poland and the United Kingdom. Both States are also parties to the 2003 Brussels II bis Regulation and the 1980 Luxembourg Convention. The 1980 Hague Convention itself has to be interpreted and applied in the context of these instruments. 59. The Court observes that the assessment of the child’s best interests carried out by the Polish family courts in the course of the applicant’s Hague Convention proceedings has indeed revolved around the question of whether moving the child into her father’s care and separating her from the mother would disturb the child’s sense of security and would have a negative impact on her emotional state (see paragraphs 15, 18 and 23 above). 60. Firstly, a question to this effect was formulated in explicit terms and put to the RODK’s experts with a view to obtaining a report which later served as the basis of the family courts’ assessment of the exceptions under Article 13 (b) of the Hague Convention (see paragraphs 16 and 17 above). The RODK’s experts in fact recommended that the child should continue living in Poland because her return to the United Kingdom without the mother would be more harmful to her than the lack of daily contact with her father (see paragraph 16 above). 61. Secondly, the first-instance court assessed the risk of psychological and physical harm to the child in the event of her return to her father without the mother; no consideration having been given to the alternative return of the child with the mother (see paragraph 18 above). As a matter of fact the district court held that there was a grave risk of psychological trauma for the child in the event of her immediate separation from her mother, because of the girl’s young age and because her mother had always been her primary caregiver (see paragraph 19 above). 62. Thirdly, even though the appellate court reformulated its reasoning when upholding the decision to dismiss the applicant’s Hague Convention request, the fact that the child’s mother was unwilling to live in the United Kingdom remained central to its analysis (see paragraph 23 above). Being faced with the applicant’s explicit argument that the lower court had breached Article 13 (b) of the Hague Convention in that it had wrongly assumed that the child would have to be separated from the mother in absence of any objective obstacles to her return to the United Kingdom (see paragraph 20 above), the appellate court appears to have accepted that the conflict between the applicant and M.J. and the latter’s alleged inability to adapt to her life abroad were reasons objective and convincing enough to prompt the conclusion that with or without her mother the child’s return to her habitual environment would place her in an intolerable situation within the meaning of Article 13 (b) of the Hague Convention (see paragraph 23 above). 63. It is not the Court’s task to take the place of the competent authorities in determining whether a grave risk exists that the child would be exposed to psychological harm within the meaning of Article 13 of the Hague Convention if she returned to the United Kingdom. However, the Court is in a position to ascertain whether the domestic courts, in applying and interpreting the provisions of that convention, secured the guarantees set forth in Article 8 of the Convention, particularly taking into account the child’s best interests (see, amongst other authorities, Olsson v. Sweden judgment of 24 March 1988, Series A no. 130, p. 32, § 68). 64. The Court observes that it was the applicant’s estranged wife who opposed the child’s return. It was therefore for her to make and to substantiate any potential allegation of specific risks under Article 13 (b) of the Hague Convention (see paragraph 38 above). While this provision is not restrictive as to the exact nature of the “grave risk” – which could entail not only “physical or psychological harm” but also “an intolerable situation” – it cannot be read, in the light of Article 8 of the Convention, as including all of the inconveniences necessarily linked to the experience of return: the exception provided for in Article 13 (b) concerns only situations which go beyond what a child might reasonably be expected to bear (see X v. Latvia, cited above, § 116, and Maumousseau and Washington, cited above, §§ 69 and 73). 65. In the instant case, the applicant’s wife objected to the child’s return to the United Kingdom, giving two reasons. The first was essentially the break-up of the marriage, and the second her fear that the child would not be allowed to leave the United Kingdom (see paragraph 9 above). 66. The Court considers that both of these arguments fell short of the requirements of Article 13 (b) of the Hague Convention which were described above. The domestic courts nevertheless proceeded with the case, assessing the said Article 13 (b) risks in view of what appears to be a rather arbitrary refusal of the child’s mother to return with the child as discussed in paragraph 60 above. 67. In addition to restating consistently that the exceptions to return under the Hague Convention must be interpreted strictly (see X v. Latvia, cited above, § 116), this Court has also specifically held that the harm referred to in Article 13 (b) of the Hague Convention cannot arise solely from separation from the parent who was responsible for the wrongful removal or retention. This separation, however difficult for the child, would not automatically meet the grave risk test (see mutatis mutandis, G.S. v. Georgia, no. 2361/13, § 56, 21 July 2015). 68. Nothing in the circumstances unveiled before the domestic courts objectively ruled out the possibility of the mother’s return together with the child. It was not implied that the applicant’s wife did not have access to UK territory (see, mutatis mutandis, Maumousseau, cited above, § 74) or that she would have faced criminal sanctions upon her return (see, a contrario, Neullinger, cited above, §§ 149 and 150). In addition, nothing indicated that the applicant might actively prevent M.J. from seeing her child in the United Kingdom or might deprive her of parental rights or custody (see, mutatis mutandis, Paradis and Others v. Germany (dec.), no. 4783/03, 15 May 2003). Instead, the appellate court upheld the conclusion and the reasoning of the lower court that the child’s separation from the mother would have negative irreversible consequences, adding that it was so because since the abduction the child had been under her mother’s care practically round the clock, and her contact with the applicant had been rare (see paragraph 23 above). 69. The alternative part of the appellate court’s ruling, namely its holding that the child’s return to the United Kingdom with the mother would not have a positive impact on the child’s development, because M.J.’s departure from Poland would be against her will (see paragraph 23 above), must be considered equally misguided. The domestic court has clearly gone beyond the elements which ought to have been assessed under Article 13 (b) of the Hague Convention. Moreover, even in doing so, it seemed to have completely ignored the remaining conclusions of the RODK’s experts, namely that the child, who was apparently adaptable, was in good physical and psychological health, was emotionally attached to both parents, and perceived Poland and the United Kingdom as on an equal footing (see paragraph 16 above). 70. Lastly, the Court observes that the issues of custody and access are not to be intertwined in the Hague Convention proceedings (see paragraph 38 above, and see also Maumousseau, cited above, § 69). Consequently, whether in the light of international law or of domestic law, it was erroneous for the family court in the instant case to assume that if returned to the United Kingdom the child would be placed in the applicant’s custody or care. 71. The Court also observes that, as regards the length of the impugned domestic proceedings, despite the recognised urgent nature of the Hague Convention proceedings, a period of one year elapsed from the date on which the applicant’s request for the return of the child was registered with the Grudziadz District Court to the date of the final decision. No explanation was put forward by the Government for this delay. 72. Consequently, even though the six-week time-limit is non-obligatory under the Hague Convention (see paragraph 33 above), the Court considers that exceeding it by forty-five weeks, which is more than eightfold, in the absence of any circumstances capable of exempting the domestic courts from the duty to strictly observe it, does not meet the urgency of the situation and is not in compliance with the positive obligation to act expeditiously in proceedings for the return of children (see Carlson v. Switzerland, no. 49492/06, § 76, 6 November 2008; Karrer v. Romania, no. 16965/10, § 54, 21 February 2012; R.S. v. Poland, no. 63777/09, § 70, 21 July 2015; Blaga v. Romania, no. 54443/10, § 83, 1 July 2014; and Monory, cited above, § 82; see also, a contrario, Lipkowsky (dec.), cited above). 73. In conclusion, in the circumstances of the case seen as a whole and notwithstanding the respondent States’ margin of appreciation in the matter, the Court considers that the State failed to comply with its positive obligations under Article 8 of the Convention. 74. In view of the above conclusion, it is unnecessary that the remainder of the applicant’s complaint about the allegedly defective procedure be examined by the Court. 75. There has accordingly been a violation of Article 8 of the Convention. 76. Lastly, the Court observes that, as the child has lived with her mother in Poland for over three years and a half, there is no basis for the present judgment to be interpreted as obliging the respondent State to take steps ordering the child’s return to the United Kingdom. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION ON ACCOUNT OF THE DOMESTIC COURTS’ FAILURE TO ISSUE AN INTERIM CONTACT ORDER 77. In his observations on the admissibility and the merits of the case which were submitted to the Court on 19 January 2015, the applicant made an additional complaint, namely that the Polish family court failed to secure the exercise of his right of contact during the Hague Convention proceedings. In result, his contact with the child was irregular and rare, as it was at the absolute discretion of the abducting mother. That, in the applicant’s view, was in breach of Article 21 of the Hague Convention and in violation of his and his daughter’s right for respect for their family life under Article 8 of the Convention. 78. The Court considers that the above grievance cannot be viewed as an integral part of the applicant’s main complaint, which concerned the dismissal of his Hague Convention request and the features of these proceedings in so far as they might have influenced that outcome. Consequently, the applicant’s allegation that his contact was not secured by the domestic court during the return proceedings must be examined as a separate complaint. It is not open to the Court, however, to set aside the application of the six-month rule even in the absence of the relevant objection from the Government (see, among many other authorities, Wereda v. Poland, no. 54727/08, § 57, 26 November 2013; Belaousof and Others v. Greece, no. 66296/01, judgment of 27 May 2004, § 38; Miroshnik v. Ukraine, no. 75804/01, § 55, 27 November 2008; Tsikakis v. Germany, no. 1521/06, § 55, 10 February 2011; and Ciornei v. Romania, no. 6098/05, § 19, 21 July 2009). 79. In view of these considerations, it must be noted that the examination of the merits of the applicant’s request for contact arrangements was stayed by the Grudziądz District Court on 28 February 2013 until the termination of the divorce proceedings (see paragraph 28 above). The latter proceedings ended on 24 June 2013 with the decision of the Gdańsk Court of Appeal (see paragraph 29 above). The applicant informed the Court that on 28 November 2014 a decision on contact arrangements had been issued (see paragraph 31 above). The latter development, however, is of no importance since the Hague Convention proceedings, for the duration of which the applicant sought to have contact with his child, ended on 14 October 2013 (see paragraph 22 above). 80. Having regard to the above, the Court finds that the applicant’s complaint that the Polish family court failed to secure his right of contact during the return proceedings has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 81. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 82. In his application form, the applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage. In his subsequent submissions on just satisfaction, he claimed EUR 1,886 in respect of pecuniary damage, representing loss of income when the applicant was absent from work to participate in the impugned domestic court proceedings. At that point, the applicant also claimed EUR 50,000 in respect of non‑pecuniary damage. 83. The Government submitted that no causal link existed between the applicant’s Article 8 application and the pecuniary damage which he had allegedly suffered. Moreover, they argued that the non-pecuniary damages sought were excessive and did not correspond to what had originally been claimed by the applicant. 84. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, the Court accepts that the applicant must have suffered distress and emotional hardship, as a result of the Polish court’s refusal to order her daughter’s return to the United Kingdom, which is not sufficiently compensated for by the finding of a violation of the Convention. Having regard to the sums awarded in comparable cases, and making an assessment on an equitable basis, the Court awards the applicant EUR 9,000 in respect of non-pecuniary damage. B. Costs and expenses 85. The applicant also claimed EUR 7,447.74 for costs and expenses incurred in relation to the proceedings before domestic courts and EUR 3,000 for those incurred before the Court. The former amount comprised EUR 5,473.54 of the applicant and his witness’s travel expenses (transportation, hotels and parking fees) incurred between December 2012 and October 2013 and EUR 1,974.2 of various court and translation fees. 86. The Government argued that only costs actually incurred in the preparation and defence of the applicant’s case before the Court should be taken into consideration. 87. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 6,145 covering costs under all heads. C. Default interest 88. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the Article 8 complaint about the outcome of the Hague Convention proceedings and the decision-making process admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 8 of the Convention; 3. 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, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 9,000 (nine thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 6,145 (six thousand one hundred and forty-five euros), plus any tax that may be chargeable to the applicant, 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; 4. Dismisses the remainder of the applicant’s claim for just satisfaction and for costs and expenses. Done in English, and notified in writing on 1 March 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıAndrás SajóDeputy RegistrarPresident

THIRD SECTION CASE OF ABOU AMER v. ROMANIA (Application no. 14521/03) JUDGMENT STRASBOURG 24 May 2011 FINAL 24/08/2011 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Abou Amer v. Romania, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Corneliu Bîrsan,Egbert Myjer,Ján Šikuta,Ineta Ziemele,Nona Tsotsoria,Kristina Pardalos, judges,and Santiago Quesada, Section Registrar, Having deliberated in private on 3 May 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 14521/03) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr Fahed Youseef Abdalla Abou Amer (“the first applicant”), a stateless person of Palestinian origin who was born in Egypt and Mrs Ana-Maria Abou Amer (“the second applicant”) his wife, a Romanian national, on 6 May 2003. 2. The applicants, who had been granted legal aid, were represented by Mr Jan-Ǻke Höög, a lawyer practising in Motala, Sweden. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu, of the Ministry of Foreign Affairs. 3. On 28 May 2009 the President of the Third Section decided to communicate to the Government the complaints concerning the conditions of the first applicant’s detention pending expulsion, the lawfulness of his detention and the alleged interference with the applicants’ Article 8 rights. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicants were born in 1969 and 1979 respectively and live in Motala, Sweden. At the date of the facts in the present application, they were living in Romania. 5. The first applicant was granted refugee status by the Romanian authorities in 1998, along with his father and brothers. In 2000 he married the second applicant. Their daughter was born in 2001 and acquired Romanian nationality at birth. At the date of the facts, the applicant was legally residing and working in Romania. 6. In March 2003 the applicants and their daughter visited family in Egypt. 7. Meanwhile, on 25 March 2003, at the request of the Romanian Intelligence Service (Serviciul român de informaţii) and in accordance with Government Emergency Ordinance no. 194/2002 on the rules governing aliens in Romania (“Ordinance no. 194”), the prosecutor at the Bucharest Court of Appeal issued an order in which the first applicant was declared an “undesirable person” and banned from Romania for ten years on the ground that there was “sufficient and serious intelligence” that he was “engaged in activities capable of endangering national security”. 8. Based on that order, on 28 March 2003 the prosecutor decided to take the applicant into public custody in the Otopeni Centre for the Reception, Selection and Accommodation of Foreigners (“the Otopeni Centre”), until his deportation was possible. The decision was taken for an initial period of thirty days, until 26 April 2003. 9. On 6 April 2003, in the morning, when the applicants and their daughter returned to Romania, the first applicant was served with the order of 25 March 2003 and the decision of 28 March 2003 and prohibited from leaving the airport and entering Romania. He was informed of the reasons for that interdiction and asked to leave the territory immediately. 10. At 1 p.m., after a brief meeting with his wife, the first applicant bought a ticket for Zurich and boarded a flight to that destination. As entry into Switzerland was denied, on 7 April he returned to Romania, where he was kept in the airport’s transit zone. According to the applicant’s statements he was placed in the airport’s basement, in a room without heating, with only a thin cover to protect him from the cold. There was no bathroom. He had access to a toilet but had to be escorted there. Food was scarce and of poor quality. His wife was not allowed to see him or to send him clothes and food. 11. On 8 April he was visited by a representative of the Romanian Council for Refugees (Consiliul Român pentru Refugiaţi). On that occasion, he did not complain about his detention. On the same day he was seen by a doctor who reported that he was in good general health. 12. On the same day, through the offices of his lawyers, the applicant challenged the prosecutor’s order of 25 March 2003 before the Bucharest Court of Appeal. He argued that he had not done anything that would harm national security and that the order had disrupted his family life. 13. On 8 April at 9.45 a.m. the authorities tried to repatriate the applicant to Egypt, which also refused him access to the territory and returned him to Romania on 9 April. The authorities kept him in the transit area while they attempted to get him a visa for Egypt. 14. On 11 April 2003 the Bucharest Court of Appeal stayed the execution of the prosecutor’s order of 25 March 2003, pending the outcome of the proceedings for its annulment. The decision to take the applicant into public custody remained operative. 15. On 14 April 2003 the applicant was transferred to the Otopeni Centre where he claimed he was held in similar conditions to those in the airport. He stated that he had been allowed contact with his wife, who had brought him food and clothes. Upon transfer he had received an information note in English explaining the reasons he was being taken into public custody in the Centre, namely, that his request for refugee status had been denied, that an order for expulsion had been issued against him and that he had been declared “undesirable” on Romanian territory. He was also informed that the custodial measure would remain in place until travel documents were obtained and the return formalities completed. 16. The applicant contested his taking into public custody before the Bucharest Court of Appeal. He also complained that the conditions in the transit zone were inadequate for a long period of detention. On 21 April 2003 the Bucharest Court of Appeal annulled the decision of 28 March. The Authority for Foreigners (Autoritatea pentru străini) appealed. The parties failed to provide any information on the subsequent proceedings. On 24 April 2003 the Bucharest Court of Appeal extended the applicant’s public custody by three months. It noted that the decision of 21 April 2003 was not final and thus could not be taken into account, and considered that the reasons that justified the initial measure still existed. Furthermore, as long as the proceedings against the prosecutor’s order were pending the measure was still needed and the applicant could not be removed from the territory. It also dismissed the applicant’s arguments based on the infringement of his right to family life, as it considered that taking him into public custody did not breach Article 8 of the Convention. 17. In a decision of 4 June 2003 the Bucharest Court of Appeal upheld the prosecutor’s order of 25 March 2003, on the grounds that the measure had been taken in conformity with Ordinance no. 194 and that the applicant had not proved the contrary. It also rejected the applicant’s argument based on the right to family life, as it considered that the fact that he was married did not exonerate him from complying with the law and that the order did not interfere with his family life. The decision was final. 18. On 3 June 2003 the applicants, who had found out through their own means about the possibility of being granted entry to Sweden, left for Sweden with their daughter, where they currently reside. The first applicant’s father and brothers and the second applicant’s family are still living in Romania. II. RELEVANT DOMESTIC LAW 19. Articles 81 to 85 of Ordinance no. 194 describe the procedure for declaring a person “undesirable” and contesting that measure. A detailed description of that procedure is available in Lupsa v. Romania, no. 10337/04, ECHR 2006‑VII. 20. According to Article 93 of Ordinance no. 194 a magistrate may decide to take an alien into public custody if the person cannot be returned within the time-limit established (24 hours if the individual possesses a valid passport and money under Article 87 § 2). The measure is applied for an initial period of 30 days and a request for extension made by the Aliens Authority will be examined by the court within the territorial jurisdiction of the accommodation centre. The measure can be challenged before the Bucharest Court of Appeal. Such an appeal does not stay the enforcement of the measure. III. COUNCIL OF EUROPE TEXTS 21. In 1995 the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) visited the area of Bucharest airport where persons who were denied access to the country were kept. They found that the conditions of detention were acceptable for short stays, that the room was not overcrowded and was well lit and aired. In 1995, 1999 and 2002-2003, the CPT visited the Otopeni Centre. In the last visit, they found that the conditions of detention were good, the rooms were spacious, well lit and aired and well equipped. It also found the toilets and common areas acceptable. Visits and telephone calls were allowed and the medical facilities were acceptable. The CPT expressed concern about the complaints they received from some individuals in the centre about the personnel having asked for bribes in exchange for certain privileges. They also considered that the centre should offer a wider range of activities to those lodged there. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 22. The first applicant complained that the conditions in which he had been held in the airport facilities and in the Otopeni Centre contravened the requirements of Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties’ submissions 23. The Government pleaded non-exhaustion of domestic remedies, as the first applicant had not lodged a complaint with the domestic authorities about the conditions of his detention. 24. Furthermore, they considered that the contested measures did not affect the applicant’s freedom of movement, as he remained free to leave Romania at any point, which in the end he did, for Sweden. Therefore the fact that he had chosen to stay in the airport holding area and the Otopeni Centre was not imputable to the State. 25. The Government contended that the conditions of accommodation were acceptable in both facilities. They submitted that in the airport transit zone the applicant had been held in a 48.27 sq. m room which had four beds and a window, with toilets and shower facilities nearby. On 7 April 2003 he was alone in the room. The airport administration offered him food. As for his stay in Otopeni, the Government submitted that the applicant had been offered bedding and cutlery. 26. No visit requests were made during the applicant’s stay in the airport holding area. In the Otopeni Centre he received 25 visits from the second applicant, his lawyer and other individuals. 27. The applicant reiterated that he had been kept in degrading conditions. B. The Court’s assessment 28. The Court reiterates that to fall within the scope of Article 3, ill‑treatment must attain a minimum level of severity. 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 (see, for example, Ciorap v. Moldova, no. 12066/02, § 63, 19 June 2007). Furthermore, measures depriving a person of his liberty may often involve an inevitable element of suffering or humiliation. Nevertheless, the suffering and humiliation involved must not go beyond the inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment (Orchowski v. Poland, no. 17885/04, § 120, ECHR 2009‑ (extracts)). 29. In the case under examination, the parties gave conflicting descriptions of the conditions in the two detention facilities where the applicant was accommodated. Based on the information available to it, the Court must first ascertain whether the conditions attained the threshold for the applicability of Article 3. 30. The applicant’s initial submissions to the Court offered prima facie evidence of the poor conditions in the two facilities. However, according to the Government the conditions in both the airport facilities and the Otopeni Centre were acceptable by Convention standards. The Court also notes that the Government’s position is fully supported by the findings of the CPT (see paragraph 21 above). The applicant failed to submit any additional evidence to support his statements. Moreover, the only complaint he lodged with the courts concerned the alleged inadequacy of the transit zone for a long period of detention. While this allegation is confirmed by the CPT’s findings, his seven-day detention in the transit zone cannot be considered long (see also paragraph 40 below). 31. The Court notes that the applicant did not lodge any specific complaint with the authorities – courts, the airport or Otopeni Centre administration, or the representatives of the Romanian Council for Refugees – about the conditions of his detention. He thus failed to allow the State authorities the opportunity to address the alleged flaws he described in his application to the Court. While leaving open the question whether any of these avenues could have constituted an effective remedy at that time, the Court considers nevertheless that such complaints could have at least provided evidence to support the applicant’s claims to the Court. 32. The foregoing considerations are sufficient to enable the Court to conclude that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 33. The first applicant complained that he was held in custody despite his expulsion being clearly impossible and that he had no effective remedy by which to challenge the legality of his detention. He relied on Article 5 of the Convention, which reads as follows in so far as relevant: “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: ... (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A. The parties’ positions 34. The Government contested that argument. They considered that a distinction should be made between the time spent by the applicant in the airport transit zone, which, in their view, did not constitute “detention”, as the applicant remained free to leave at any moment, and the time spent in the Otopeni Centre. They further contended that the measures taken by the authorities had been lawful and that the period spent by the applicant in public custody was reasonable according to the Court’s standards. 35. The applicant argued that the shifting of the burden of proof by the domestic courts dealing with the appeal against the prosecutor’s order had been incorrect. He also pointed out that the final domestic decision was that of 4 June 2003, which rendered ineffective all previous court decisions favourable to him. B. The Court’s assessment 36. The Court notes at the outset that the applicant was taken into public custody pursuant to the prosecutor’s decision of 28 March 2003. 1. Alleged arbitrariness of the measure 37. The Court reiterates that in order to avoid being branded arbitrary, detention under Article 5 § 1(f) must be carried out in good faith; it must be closely connected to the ground of detention relied on by the Government; the place and conditions of detention should be appropriate; and the length of the detention should not exceed that reasonably required for the purpose pursued (see Saadi v. the United Kingdom [GC], no. 13229/03, §§ 72 and 74, ECHR 2008‑...; and A. and Others v. the United Kingdom [GC], no. 3455/05, § 164, 19 February 2009). 38. The Court notes that it is not disputed that the first applicant was held in the airport facilities and in the Otopeni Centre “to prevent him entering into the country unauthorised” and “with a view to his deportation”. It reiterates that detention under Article 5 § 1 (f) does not have to be reasonably considered necessary; all that is required to justify detention under this provision is that “action is being taken with a view to deportation”. It is therefore immaterial, for the purposes of Article 5 § 1 (f), whether the underlying decision to expel can be justified under national or Convention law (Chahal v. the United Kingdom, 15 November 1996, § 112, Reports of Judgments and Decisions 1996‑V and Kaya v. Romania, no. 33970/05, § 17, 12 October 2006). 39. The Court considers that the measure of taking the applicant into public custody affected him de facto from the moment when he arrived at the airport, on 6 April 2003, and was refused entry to Romania. It therefore cannot agree with the Government that the time spent in the airport transit zone was not “detention”. The applicant did not choose to stay in the transit zone. He was banned from entering Romania and the two other States to which he travelled (Switzerland and Egypt) refused him entry. His situation differs therefore from that of the applicants in Mogoş v. Romania ((dec.), no. 20420/02, 6 May 2004) who refused to enter Romania although there was no obstacle to their entry. He is rather in a comparable situation to that of the applicants in Shamsa v. Poland (nos. 45355/99 and 45357/99, §§ 16 and 47, 27 November 2003) who were not allowed by the authorities to enter Poland from the transit zone. 40. The measure in the present case was taken by a decision of the prosecutor for an initial period of 30 days and subsequently extended by the court in an adversarial procedure. The Court is satisfied that the domestic law has been respected in the case and that the measure was taken with the sole aim of facilitating the applicant’s removal from the territory (see, a contrario, Shamsa, cited above, §§ 53-60). The facts of the case indicate that during the custody period, the authorities were making active efforts to have the applicant removed from the country. Moreover, the length of the measure did not exceed that reasonably required for the purpose pursued. The applicant was detained for about two months and chose to leave for Sweden. The Court has already found that a three-month detention in similar conditions did not raise an issue under Article 5 § 1 (f) of the Convention (see A. and Others, cited above, § 168). 41. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 2. Right to an effective remedy 42. The Court notes that Article 5 § 4 guarantees a right to “everyone who is deprived of his liberty by arrest or detention” to bring proceedings to test the legality of the detention and to obtain release if the detention is found to be unlawful (see A and Others, cited above, § 200). In cases of detention with a view to deportation Article 5 § 4 does not require that the domestic courts have the power to review whether the underlying decision to expel is justified under national or Convention law (see Chahal, cited above, § 128). 43. In the case at hand, the Court notes that the applicant did have the opportunity to challenge the custodial measure and participated in the proceedings for the extension of the measure (see paragraph 16 above). It considers that, despite the applicant being dissatisfied with their outcome, those appeals proved to be “effective” under the Court’s established case‑law (see, mutatis mutandis, Čonka v. Belgium, no. 51564/99, § 75, ECHR 2002‑I). 44. It follows that this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 45. The applicants complained, under Article 8 of the Convention, that their family life had been compromised by the prosecutor’s order to deport the first applicant and to ban him from Romania for ten years; they had been forced to leave Romania in order to be able to continue a family life and had had to leave their respective families behind. The relevant parts of Article 8 of the Convention read as follows: “1. Everyone has the right to respect for his ... family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 46. 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 parties’ arguments 47. The Government considered that the measures taken against the first applicant did not interfere with the applicants’ family life. They contended that there was no right guaranteed by the Convention for the applicants to establish their residence in Romania. The applicants were free to leave Romania at any time, and have established their home in Sweden where they are currently living a normal family life with their child. 48. Even assuming that the measures constituted an interference with the applicants’ right to respect for their family life, the interference met the criteria set forth in the second paragraph of Article 8. It was provided by Articles 83 and 93 of Ordinance no. 194, which describe with precision the behaviour expected from foreigners, as well as the consequences of not respecting those requirements. The Government put forward that the measures were aimed at protecting national security and were proportionate to that aim. 49. The applicants argued that they had been forced to leave Romania as a result of the measure taken against the first applicant, that being their only choice for re-establishing their family life. They further argued that the prosecutor could not justify the issuing of the order of 25 March 2003 and that the first applicant had not been engaged in any activities that would pose a threat to national security. 2. The Court’s assessment a) Whether there was an interference 50. The Court reaffirms at the outset that a State is entitled, as a matter of international law and subject to its treaty obligations, to control the entry of aliens into its territory and their residence there (see, among many other authorities, Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, p. 34, § 67, Boujlifa v. France, judgment of 21 October 1997, Reports of Judgments and Decisions 1997-VI, p. 2264, § 42). The Convention does not guarantee the right of an alien to enter or to reside in a particular country and, in pursuance of their task of maintaining public order, Contracting States have the power to expel an alien under certain circumstances. However, their decisions in this field must, in so far as they may interfere with a right protected under paragraph 1 of Article 8, be in accordance with the law and necessary in a democratic society, that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued (see Dalia v. France, judgment of 19 February 1998, Reports 1998-I, p. 91, § 52; Mehemi v. France, judgment of 26 September 1997, Reports 1997-VI, p. 1971, § 34; Boultif v. Switzerland, no. 54273/00, §§ 39 and 46, ECHR 2001-IX; Slivenko v. Latvia [GC], no. 48321/99, ECHR 2003-X, § 113; Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006‑XII; Al-Nashif v. Bulgaria, no. 50963/99, § 114, 20 June 2002; and Lupsa, cited above, § 25). 51. In the case at hand, it is not disputed that the applicants had a family life in Romania at the time of the events. The first applicant was granted a refugee status and was working in Romania, in 2000 had married the second applicant, a Romanian national, and in 2001 a child, who acquired Romanian nationality at birth, had been born to them. Both the first applicant’s and the second applicant’s families lived at that time and, according to the available data, continue to live, in Romania. 52. The Court notes that on 25 March 2003 the prosecutor issued an order in which the first applicant was declared an “undesirable person” and banned from Romania for ten years. 53. The Court also takes note of the fact that the applicants left Romania and restarted their family life in Sweden only two months after the interruption caused by the measure of declaring the first applicant an “undesirable person” and banning him from the territory. However, it considers that during that time, the first applicant could neither enter Romania nor leave for another country, as the States he attempted to travel to denied him entry. Moreover, it notes that the applicants’ decision to leave Romania was not taken freely, as Sweden appeared to be the only state where they could resume their family life expediently. From this point of view, the case differs from Sadet v. Romania ((dec.), no. 36416/02, 20 September 2007) where the applicants chose to leave Romania before the expulsion order was even enforced, although they were admitted in the interest of family reunification, and did not consider returning to Romania. 54. The Court reiterates that even if Article 8 of the Convention does not contain an absolute right for any category of alien not to be expelled, its case-law amply demonstrates that there are circumstances where the expulsion of an alien will give rise to a violation of that provision (see Üner, cited above, § 57). Taking that case-law into account, as well as the applicants’ particular situation in the present case, the Court will consider that the forced departure from Romania as a result of the first applicant being declared an “undesirable person” and being banned from Romania by the prosecutor’s order of 25 March 2003 constituted an interference with the applicants’ family life (see also, mutatis mutandis, Slivenko v. Latvia [GC], no. 48321/99, § 97, ECHR 2003‑X). b) Whether the interference was justified 55. The Court refers to the principles established in its case-law regarding interference with a person’s Article 8 rights for reasons of national security (see, in particular, the above-cited judgments Al-Nashif, § 119; Lupsa, §§ 32-38; Kaya, §§ 38-39; and C.G. and Others v. Bulgaria, no. 1365/07, §§ 39‑40, 24 April 2008). 56. In the case of Lupsa, the Court has already examined the lawfulness of a similar interference and concluded that the possibility to appeal against the prosecutor’s order, under Ordinance no. 194, did not offer the necessary guarantees against arbitrariness (see Lupsa, cited above, §§ 41-42). 57. As in Lupsa, in the present case the prosecutor did not present to the first applicant or to the Court of Appeal the concrete reasons that founded the taking of the measure. No criminal charges were brought against the first applicant for any crimes, let alone for deeds that might constitute a threat to national security. 58. The Court of Appeal confined itself to a purely formal examination of the prosecutor’s order. Not only did it fail to seek the prosecutor’s reasons for declaring the applicant an “undesirable person”, but it went further and placed on the first applicant the burden of proving that he had not been involved in any activities threatening national security. Such proof seems impossible to produce, notably when the first applicant was not informed of the concrete suspicions against him. 59. The Court sees no reason in the present case to reach a different conclusion than the one in Lupsa. It follows that the applicants did not enjoy the minimum degree of protection against arbitrariness on the part of the authorities, and that the interference with their family life was not in accordance with “a law” satisfying the requirements of the Convention. 60. Having regard to that finding, the Court deems it unnecessary to continue the examination of the applicants’ complaint to determine whether the interference pursued a “legitimate aim” and was “necessary in a democratic society” (see Lupsa, § 43; and Kaya, § 44, judgments cited above). 61. Accordingly, the Court considers that in the present case there has been a violation of Article 8 of the Convention. IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 62. The applicants raised several other complaints, under Articles 6 § 1 and 13 of the Convention and Article 3 of Protocol No. 4 to the Convention. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 63. 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 64. The applicants claimed 50,000 euros (EUR) each in respect of non‑pecuniary damage. 65. The Government argued that the applicants failed to prove the existence of a causal link between the violations alleged and their claims for non-pecuniary damage. They also considered that the amount claimed was exaggerated and that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage alleged. 66. The Court considers that the applicants suffered distress as a result of the unlawful interference with their right to respect for their family life. It therefore awards them jointly EUR 8,000 in respect of non-pecuniary damage. B. Costs and expenses 67. The applicants also claimed EUR 1,960 for the costs and expenses incurred before the Court, representing the difference between the legal fees for their lawyer and the money received in legal aid from the Council of Europe. 68. The Government argued that the applicants had failed to justify their claims. 69. 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 above criteria and to the fact that the applicants have received EUR 850 in legal aid, and given the absence of any additional evidence, the Court rejects the claim for costs and expenses. C. Default interest 70. 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 1. Declares the complaint concerning Article 8 admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 8 of the Convention; 3. Holds (a) that the respondent State is to pay jointly to the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 8,000 (eight thousand euros), plus any tax that may be chargeable, in respect of non‑pecuniary damage; (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; 4. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 24 May 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaJosep CasadevallRegistrarPresident

FOURTH SECTION CASE OF FLUX v. MOLDOVA (No. 5) (Application no. 17343/04) JUDGMENT STRASBOURG 1 July 2008 FINAL 01/10/2008 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 Flux v. Moldova (no. 5), The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,David Thór Björgvinsson,Ján Šikuta,Päivi Hirvelä,Ledi Bianku,Mihai Poalelungi, judges,and Lawrence Early, Section Registrar, Having deliberated in private on 10 June 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 17343/04) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Flux (“the applicant newspaper”), a newspaper based in Chişinău, on 5 April 2004. 2. The applicant newspaper was represented by Mr V. Gribincea, a lawyer practising in Chişinău and a member of the non-governmental organisation Lawyers for Human Rights. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu. 3. The applicant newspaper alleged, in particular, a breach of its right to freedom of expression on account of having been found guilty of defamation of a former Deputy Prosecutor General. 4. On 14 September 2006 the President of the Fourth Section of the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it was decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. On 15 November 2002 Flux published an article entitled “The criminal case file of Eugenia Duca, like five kilograms of waste paper”. It reported on the evolution of a high-profile criminal case against a business woman, who was convicted at the time but was later acquitted and compensated for illegal prosecution and detention, and published in italicised script extracts from an open letter sent by her daughter to the President of the country, President of the Parliament, Prime Minister, Council of Europe, OSCE Mission in Moldova and other organisations. In the letter she complained of alleged abuses committed by the prosecution and by the judiciary against her mother. The letter contained, inter alia, the following sentence: “On 10 July 2001, the Deputy Prosecutor General V.S. (subsequently dismissed for dubious affairs), signed the indictment in Eugenia Duca’s criminal case... and sent it to the Râşcani District Court without her even having seen it.” 6. On an unspecified date Mr V.S., who in the meantime was demoted, brought civil proceedings for defamation against the newspaper, arguing that the statement about his dismissal for dubious affairs was not true and that it was defamatory of him. 7. On 12 February 2003 the Buiucani District Court ruled in favour of Mr V.S., finding the statement that Mr V.S. had been dismissed for dubious affairs to be untrue and defamatory. It also found that V.S. was employed at the time at the Prosecutor’s Office attached to the Court of Appeal and ordered the newspaper to issue an apology within fifteen days and pay V.S. 2,700 Moldovan lei (178 euros (EUR)). 8. The applicant newspaper appealed against this judgment, arguing, inter alia, that the article was in fact a dissemination of statements made by Ms Duca’s daughter in her open letter. Relying on Jersild v. Denmark, judgment of 23 September 1994, Series A no. 298, the applicant newspaper argued that it could not be punished for disseminating statements made by third parties. 9. On 29 April 2003 the Chişinău Court of Appeal dismissed the appeal and upheld the judgment of the first-instance court. It did not examine the arguments advanced by the applicant newspaper concerning the dissemination of statements made by others. The applicant newspaper lodged an appeal on points of law and submitted that the expression “dubious affairs” had been a value judgment. 10. On 19 November 2003 the Supreme Court of Justice dismissed the appeal, finding that Mr V.S. had been dismissed from his position by a decision of the Parliament without any reasons being given. It did not examine the applicant newspaper’s arguments about the dissemination of statements made by a third person. II. RELEVANT DOMESTIC LAW 11. The relevant provisions of the Civil Code in force at the material time read: Article 7. Protection of honour and dignity “(1) Any natural or legal person shall be entitled to apply to the courts to seek the withdrawal of statements which are damaging to his or her honour and dignity if the person who made such statements cannot prove that they are true. (2) Where such information was made public by a media body, the court shall compel the publishing office of the media body to publish, not later then 15 days after the entry into force of the judicial decision, a withdrawal of the statements in the same column, on the same page or in the same programme or series of broadcasts.” Article 7/1. Compensation for non-pecuniary damage “(1) Damage caused to a person as a result of circulation of statements which do not correspond to reality and are damaging to his or her honour or dignity shall be compensated by the responsible natural of legal person. (2) The amount of the award shall be determined by the court in each case as an amount equal to between 75 and 200 months’ minimum wages if the information has been circulated by a legal person and between 10 and 100 months’ minimum wages if the information has been circulated by a natural person.” THE LAW 12. The applicant newspaper complained under Article 6 of the Convention that the domestic courts had failed to give sufficient reasons in their judgments. The relevant part of Article 6 reads: “1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ...” 13. The applicant newspaper complained under Article 10 of the Convention that the domestic courts’ decisions had entailed interference with its right to freedom of expression that could not be regarded as necessary in a democratic society. Article 10 reads: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” I. ADMISSIBILITY OF THE CASE 14. In its initial application, the applicant newspaper also submitted a complaint under Article 1 of Protocol No. 1 to the Convention and under Article 13 of the Convention. However, in its observations on admissibility and merits it asked the Court not to proceed with the examination of this complaint. The Court finds no reason to examine it. 15. In so far as the applicant newspaper’s other complaints are concerned, the Court considers that they raise questions of fact and law which are sufficiently serious that their determination should depend on an examination of the merits, and that no grounds for declaring them inadmissible have been established. The Court therefore declares them admissible. In accordance with its decision to apply Article 29 § 3 of the Convention (see paragraph 4 above), the Court will immediately consider the merits of these complaints. II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION A. The arguments of the parties 1. The applicant newspaper 16. The applicant newspaper agreed that the interference was prescribed by law and had pursued a legitimate aim. However, it was not necessary in a democratic society because the impugned article had merely disseminated statements made by a third party and had been part of a debate on an issue of public interest. The impugned statement was a quote from an open letter sent to the President of the country, the Prime Minister, the Council of Europe, the OSCE Mission in Moldova, the Moldovan Centre for Human Rights and the United States Embassy in Chişinău. Beside Mr V.S., the letter referred to at least five other judges and prosecutors involved in the criminal case. Mr V.S. had never asked the newspaper for a retraction of the statement or for a right to retort. The article had been written on the basis of detailed research. The journalist had contacted the author of the open letter and interviewed her. The journalist had also obtained a legal opinion from a lawyer and studied the verbatim record of a debate in Parliament on the criminal proceedings against Ms Duca. Mr V.S. had indeed been dismissed from his position in June 2002 and appointed as a simple prosecutor. The reasons for the demotion had never been made public; however, the investigation conducted by the journalist and the fact of the demotion of Mr V.S. could have reasonably made the journalist believe that the information in the open letter was reliable. 2. The Government 17. The Government agreed that the facts of the case disclosed an interference with the applicant newspaper’s right to freedom of expression. The interference was nevertheless justified under Article 10 § 2 of the Convention. The applicant newspaper had been ordered to pay non-pecuniary damages for defamation on the basis of Articles 7 and 7/1 of the Civil Code. The interference had thus been “prescribed by law” and the law was accessible and foreseeable. It had served the legitimate aim of protecting the dignity of Mr V.S.; furthermore, the measure had been necessary in a democratic society. 18. The Government pointed to the national authorities’ margin of appreciation in assessing the need for interference and submitted that where the Convention referred to domestic law it was primarily the task of the national authorities to apply and interpret that domestic law. They contended that in the present case the domestic authorities had not overstepped their margin of appreciation and had made use of it in good faith, carefully and reasonably. 19. The Government further submitted that the reasons given to justify the interference were “relevant and sufficient”. B. The Court’s assessment 20. It is common ground between the parties, and the Court agrees, that the decisions of the domestic courts and the award of damages made against the applicant newspaper amounted to “interference by [a] public authority” with the applicant’s right to freedom of expression under the first paragraph of Article 10 of the Convention. It is also undisputed that the interference was “prescribed by law” and pursued a legitimate aim. The Court’s task is to establish whether the interference was “necessary in a democratic society”. 21. The test of whether the interference complained of was “necessary in a democratic society” requires the Court to determine whether it corresponded to a “pressing social need”, whether it was proportionate to the legitimate aim pursued, and whether the reasons given by the national authorities to justify it are relevant and sufficient. In assessing whether such a “need” exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation. This power of appreciation is not, however, unlimited but goes hand in hand with European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10 (for the recapitulation of the relevant principles in more detail, see Giniewski v. France, no. 64016/00, §§ 43-54, ECHR 2006‑...; Aydın Tatlav v. Turkey, no. 50692/99, §§ 22-27, 2 May 2006; Gündüz v. Turkey, no. 35071/97, § 38, ECHR 2003‑XI; and Murphy v. Ireland, no. 44179/98, §§ 65-69, ECHR 2003‑IX (extracts), with further references). 22. The Court notes that the article was written by a journalist and reiterates that the pre-eminent role of the press in a democratic society is to impart ideas and opinions on political matters and on other matters of public interest (see Sunday Times v. the United Kingdom (no. 1), judgment of 26 April 1979, Series A no. 30, § 65). The impugned article had a bearing on issues such as allegedly abusive criminal proceedings and the role played therein by a senior law officer. There is no doubt that this is a very important matter in a democratic society which the public has a legitimate interest in being informed about. 23. The applicant newspaper was found liable in damages on the ground that it was unable to prove the truth of a statement concerning Mr V.S. The impugned statement was in fact a quote from an open letter written by the daughter of an alleged victim of abusive criminal proceedings to different high ranking politicians and international organisations. 24. The Court reiterates that “punishment of a journalist for assisting in the dissemination of statements made by another person ... would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so” (see Jersild v. Denmark, judgment of 23 September 1994, Series A no. 298, § 35; and Thoma v. Luxembourg, no. 38432/97, § 62, ECHR 2001‑III). 25. The Court further notes that the complaints in the open letter about the abuses committed by the prosecuting and judicial authorities against Ms Duca were not baseless, since Ms Duca was later found by the domestic courts to be a victim of abuses committed by the investigating and prosecuting authorities resulting in charging her with a criminal offence and detention (see Duca v. Moldova (no. 1579/02), partial admissibility decision, 11 April 2006). It also notes that it was undisputed during the domestic proceedings that Mr V.S. was involved in the criminal proceedings against Ms Duca in his capacity as prosecutor and that subsequently he was demoted. In such circumstances, and in view of the language of the impugned statement, the Court is not convinced that there were particularly strong reasons to punish the applicant newspaper for assisting Ms Duca’s daughter in the dissemination of her open letter. 26. Accordingly, the Court concludes that the interference did not correspond to a pressing social need and thus that it was not necessary in a democratic society. Accordingly, there has been a violation of Article 10 of the Convention. III. alleged violation of Article 6 § 1 of the Convention 27. The applicant newspaper also alleged a violation of Article 6 § 1 of the Convention, arguing that the domestic courts had failed to give reasons for their decisions. As this complaint does not raise a separate issue from that examined under Article 10 above, the Court does not consider it necessary to examine it separately. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 28. 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. Pecuniary damage 29. The applicant newspaper claimed 185 euros (EUR) for pecuniary damage, representing the damages paid by it to Mr V.S. and the court fees which it had to pay for the examination of the appeals. 30. The Government disagreed with the amount claimed and argued that the applicant newspaper should not be entitled to recover it because the proceedings had been fair and ample reasons had been given for the judgments. They asked the court to dismiss the applicant newspaper’s claim in respect of pecuniary damage. 31. The Court considers the applicant’s claim in respect of pecuniary damage to be well-founded and awards it in full. B. Non-pecuniary damage 32. The applicant newspaper claimed EUR 5,000 for non-pecuniary damage caused to it by the breach of its Convention rights. In substantiating its claim, the applicant newspaper argued that it had been obliged to publish a retraction of the impugned statements and relied on previous case-law. 33. The Government contested the claim and argued that it was ill-founded and excessive. 34. Having regard to the violation of Article 10 of the Convention found above, the Court considers that an award of compensation for non-pecuniary damage is justified in this case. Making its assessment on an equitable basis, the Court awards the applicant newspaper EUR 3,000. C. Costs and expenses 35. The applicant newspaper’s lawyer claimed EUR 1,990 for the costs and expenses incurred before the Court. He submitted a detailed time-sheet. The calculation in the time-sheet also included the time spent on the complaint under Article 6 of the Convention. 36. The Government disputed the amount claimed for representation. They considered it excessive and argued that the amount claimed by the lawyer was not the amount actually paid to him by the applicant newspaper. They disputed the number of hours worked by the applicant’s lawyer and the hourly rate he charged. 37. In the present case, regard being had to the itemised list submitted, the complexity of the case, and also to the fact that the complaint under Article 6 has been withdrawn by the applicant, the Court awards the applicant newspaper’s lawyer EUR 1,800 for costs and expenses. D. Default interest 38. 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 1. Declares the application admissible; 2. Holds that there has been a violation of Article 10 of the Convention; 3. Holds that there is no need to examine separately the complaint under Article 6 § 1 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant newspaper, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 185 (one hundred and eighty-five euros) in respect of pecuniary damage; (ii) EUR 3,000 (three thousand euros) in respect of non-pecuniary damage plus any tax that may be chargeable; (iii) EUR 1,800 (one thousand eight hundred euros) in respect of costs and expenses plus any tax that may be chargeable to the applicant; (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 applicant newspaper’s claim for just satisfaction. Done in English, and notified in writing on 1 July 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyNicolas Bratza RegistrarPresident

THIRD SECTION CASE OF SEFILYAN v. ARMENIA (Application no. 22491/08) JUDGMENT STRASBOURG 2 October 2012 FINAL 02/01/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Sefilyan v. Armenia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Egbert Myjer,Corneliu Bîrsan,Alvina Gyulumyan,Ján Šikuta,Luis López Guerra,Nona Tsotsoria, judges,and Santiago Quesada, Section Registrar, Having deliberated in private on 11 September 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 22491/08) against the Republic of Armenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lebanese national, Mr Zhirayr Sefilyan (“the applicant”), on 11 May 2007. 2. The applicant was represented by Mr V. Grigoryan and Mr A. Zakaryan, lawyers practising in Yerevan. The Armenian Government (“the Government”) were represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia at the European Court of Human Rights. 3. The applicant alleged, in particular, that his detention between 10 and 22 June 2007 had been unlawful, that the courts had failed to provide reasons for his continued detention, that the proceedings of 7 February 2007 in the District Court had not been adversarial, that he had been deprived of an oral hearing before the Court of Appeal on 14 May 2007 and that the secret surveillance of his telephone communications had been unlawful and disproportionate. 4. On 7 January 2010 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1967 and lives in Yerevan. 6. The applicant is an active member of civil society who holds leading positions in several NGOs, including the Unity of Armenian Volunteers, the Defence of Liberated Lands and Araks‑Kur charity fund. He is of an Armenian origin and since 1992 has apparently been permanently resident in Armenia where he has a family and owns an apartment. A. Secret surveillance of the applicant’s telephone communications 7. The applicant appears to be a critic of the Armenian authorities. He alleges that in this connection he has been invited to visit the National Security Service (NSS) on several occasions, where he was ordered to stop his cooperation with the opposition and his criticism of the government. 8. On an unspecified date the Head of the Principal Department for Safeguarding the Constitutional Order and Fight Against Terrorism of the NSS filed a motion, seeking to carry out secret surveillance and recording of the applicant’s telephone and other conversations. 9. On 15 August 2006 the Kentron and Nork-Marash District Court of Yerevan examined the motion, finding: “It is evident from the materials submitted to the court and the motion that the Principal Department for Safeguarding the Constitutional Order and Fight Against Terrorism of the NSS has sufficient grounds to believe that [the applicant], born in 1967 in Lebanon, a Lebanese national, residing at 17 Lepsius Str, apt 42, Yerevan, leader of the Armenian Volunteers Unity organisation, is carrying out activities aimed to destabilise the internal political situation in Armenia and to create a situation of civil disobedience, thereby creating a basis for the change of government in Armenia through unconstitutional means by making public calls.” 10. The District Court decided to grant the motion, authorising the interception and recording of the applicant’s telephone and other conversations made to and from the applicant’s three mobile and three landline numbers for a period of six months, taking into account that they might contain information substantiating the above-mentioned circumstances, the use of which would facilitate the disclosure of a crime and obtaining evidence, since there were elements of an offence prescribed by Article 301 of the Criminal Code (CC) in the applicant’s actions. In doing so, the District Court referred to, inter alia, Articles 281 and 284 of the Code of Criminal Procedure (CCP). B. The criminal proceedings against the applicant and his placement in detention 11. On 2 December 2006 the applicant gave a speech at an assembly organised by the Unity of Armenian Volunteers. The assembly took place in the hall of the Yerevan State Choreography College and was attended by about 150 people. The applicant called on the participants of the assembly to get organised, otherwise nothing would move forward. It was not enough to keep telling the President and the Prime Minister to resign; they would never do that. Peaceful assemblies would not make them resign. Nor would external pressure. He called on the participants to create a significant force, in order to make the authorities resign, stating that the main and only objective was to get rid of them. He further stressed that they should not allow those in power to multiply, otherwise the future plans of the participants of the assembly would encounter serious obstacles. The applicant called the authorities “monsters” who would become even more dangerous if they were allowed to multiply. The applicant agreed with other speech makers that any means were acceptable for achieving their goals. 12. On 8 December 2006 the Investigative Department of the National Security Service decided to institute criminal proceedings under Article 301 of the CC on the ground that public calls for a violent overthrow of the government had been made during the speeches given at the above assembly. 13. On 9 December 2006 at 10.30 p.m. the applicant was arrested and taken to the NSS. 14. On the same date the applicant’s office was searched, as a result of which a revolver and various types of bullets were found. 15. On 10 December 2006 at 3.45 p.m. the relevant arrest record was drawn up. It stated that the applicant was suspected of offences under Articles 235 § 1 and 301 of the CC. It appears that his passport was seized. 16. On the same date the applicant was questioned as a suspect. He refused to give testimony, stating that the criminal proceedings against him were politically motivated. 17. On 12 December 2006 the applicant was formally charged under Articles 235 § 1 and 301 of the CC. He was accused of making calls for a violent overthrow of the government and of not handing in, and illegally keeping, his weapon after his demobilisation in 1998. Another person, V.M., who had also given a speech at the above assembly, was accused together with the applicant under Article 301 of the CC. Their speeches had been recorded. 18. On the same date the investigator filed a motion with the Kentron and Nork-Marash District Court of Yerevan, seeking to have the applicant detained for a period of two months and arguing that, if at large, he could abscond and obstruct the investigation. It appears that on the same date three members of the parliament filed a statement with the District Court, giving their personal guarantees for the applicant’s proper conduct and requesting that no detention be imposed. 19. On the same date the District Court examined the investigator’s motion, including the charge and the circumstances surrounding it. The District Court decided to grant the motion, taking into account the nature and degree of dangerousness of the imputed offence and the fact that it was at the top of the list of offences directed against state power and finding that the materials of the case provided sufficient reasons to believe that the applicant could abscond and obstruct the investigation by exerting unlawful influence on persons involved in the proceedings. 20. On 19 December 2006 the applicant lodged an appeal, arguing, inter alia, that there was no reasonable suspicion of his having committed an offence and that the District Court had failed to provide reasons justifying the necessity of his placement in detention. He submitted, in particular, that the investigating authority had a recording of his speech at its disposal, so the allegation that he could unlawfully influence witnesses was unfounded. Furthermore, the allegation that he could abscond was not supported by any arguments or evidence, while the court did not take into account the fact that he was a permanent resident in Armenia, with two minor children and an elderly, sick mother who were dependent on him. 21. On 27 December 2006 the Criminal and Military Court of Appeal dismissed the applicant’s appeal. In dismissing the applicant’s argument about the lack of a reasonable suspicion, the Court of Appeal found that his involvement in the imputed acts, which included features of offences envisaged by Articles 235 § 1 and 301 of the CC, was substantiated by evidence, such as various records and expert opinions, produced by the investigator and examined in court. As to the reasons given by the District Court, the Court of Appeal found these to be justified. 22. On the same date the applicant filed a motion requesting to be released on bail. He submitted that he was known to the investigating authority and the court, he had a clear and concrete place of residence and he had never attempted to abscond. He asked the court to fix the amount of bail. 23. On 30 December 2007 another person, V.A., who was the applicant’s friend, was also charged under Article 235 § 1 of the CC with illegal possession of firearms and ammunition in the context of the same criminal proceedings. 24. On 7 January 2007 the District Court refused the applicant’s request for bail, citing the same grounds as those justifying his detention. 25. On 22 January 2007 the Court of Appeal upheld this decision, adding that the applicant was a foreign national and therefore could abscond. Furthermore, it was unacceptable to release the applicant on bail in view of the fact that his co-accused, V.A., who was also charged with illegal possession of firearms and ammunition, was in detention. C. Extension of the applicant’s detention and the court proceedings 26. On 1 February 2007 the investigator filed a motion with the District Court seeking to have the applicant’s detention period, which was to expire on 10 February 2007, extended by two months. The investigator argued that the applicant could abscond because he was a foreign national. He further argued that on 15 January 2007 the applicant had transmitted through his lawyer a short note to co-accused V.A. which said “be strong”. This suggested that he was attempting to exert unlawful influence on the participants in the proceedings. 27. On 7 February 2007 the District Court, having examined the investigator’s motion and other materials, granted this motion, finding that there was a need to carry out further investigative measures and citing the same grounds as before in justifying the applicant’s continued detention. 28. On 8 February 2007 the applicant lodged an appeal. In his appeal he argued, inter alia, that the extension of his detention had been effected in violation of the time-limits prescribed by Article 139 § 1 of the CCP. 29. On 23 February 2007 the Court of Appeal dismissed the appeal, finding that the District Court, taking into account the circumstances mentioned in the investigator’s motion, had taken a reasoned decision, since the grounds for the applicant’s detention had not ceased to exist. As to the violation of the time-limits, the Court of Appeal considered this not to be of such gravity as to have affected the correct outcome of examination of the investigator’s motion. 30. On 30 March 2007 the investigator filed a motion with the District Court seeking to have the applicant’s detention period, which was to expire on 10 April 2007, extended by two months on the same grounds. 31. On 4 April 2007 the District Court examined and granted this motion on the same grounds. In the proceedings before the District Court the applicant’s lawyer asked the court whether any evidence had been submitted by the investigator in support of his motion which would be examined in court. The presiding judge replied that the materials of the criminal case related to the motion had been submitted by the investigator during the examination of his previous motion. These materials had been examined and returned by the court. The criminal procedure rules did not allow the lawyers access to the materials of a criminal case before the completion of the investigation. 32. Following this announcement the applicant’s lawyer challenged the judge’s impartiality, inter alia, on the ground that the judge had not disclosed the materials in question to the defence during the previous proceedings. The judge dismissed this challenge with reference to, inter alia, Article 73 § 1 (12) of the CCP. 33. On 19 April 2007 the applicant lodged an appeal, raising similar arguments as previously. 34. The applicant alleged that his lawyers had not been notified of the hearing to take place upon his appeal and were therefore not able to appear. 35. The Government contested this allegation and alleged that on 11 May 2007 the Court of Appeal had sent notifications to both the General Prosecutor’s Office and the applicant’s lawyers, which were received by them, informing them that the hearing on the applicant’s appeal would take place on 14 May 2007. 36. On 14 May 2007 the applicants lawyers filed a challenge with the Chairman of the Court of Appeal, contesting the impartiality of the judges who were assigned to examine the appeal. The lawyers stated in their challenge that they had been informed on 11 March that the case had been assigned to a judge rapporteur. 37. On the same date the Court of Appeal examined the applicant’s appeal in the absence of both parties. The Court of Appeal decided to dismiss the appeal with the same reasoning as on 23 February 2007. This decision stated that the parties had been duly notified of the hearing but failed to appear. The same follows from the transcript of the court hearing, in which it was stated that the parties had also been informed by a judge’s assistant by telephone. It appears that a copy of this decision was received by the applicant’s lawyers on 18 May 2007. 38. In May 2007 the investigation was over and from 15 to 29 May the applicant was granted access to the case file. He submits that only then did he find out about the decision of 15 August 2006 authorising the secret surveillance of his telephone communications. 39. On 5 June 2007 the prosecutor approved the indictment and the case was sent to court. 40. On 7 June 2007 Judge M. of the Kentron and Nork-Marash District Court of Yerevan decided to take over the applicant’s criminal case. 41. On 10 June 2007 the applicant’s detention period, authorised by the decision of 4 April 2007, expired. 42. On 12 June 2007 the applicant complained to the General Prosecutor and the Minister of Justice that his detention authorised by a court had expired on 10 June 2007 and that his continued detention was unlawful. He sought to be released. 43. On 22 June 2007 Judge M. decided to put the applicant’s criminal case down for trial. This decision stated that the preventive measure imposed on the applicant was to remain unchanged. 44. On 6 August 2007 the Kentron and Nork-Marash District Court of Yerevan found the applicant guilty under Article 235 § 1 and acquitted him under Article 301. The District Court, having examined the statements the applicant had made in his speech, found that they could not be qualified as calls for a violent overthrow of the government. As to the charge of illegal possession of a weapon, the District Court found that the applicant had kept the weapon and the ammunition without a permit after his demobilisation. The applicant was sentenced to one year and six months’ imprisonment. The applicant’s two co-accused were found guilty as charged. 45. On 25 September 2007 the Criminal Court of Appeal upheld this judgment on appeal. II. RELEVANT DOMESTIC LAW A. The Criminal Code (in force from 1 August 2003) 46. The relevant provisions of the CC provide: Article 235: Illegal acquisition, sale, possession, transportation or carrying of arms, ammunition and explosive materials or devices “1. Illegal acquisition, sale, possession, transportation or carrying of firearms, except for smooth-bore firearms and their bullets, ammunition, sawn-off firearms, bullets and explosive materials or devices shall be punishable by detention of up to three months or by imprisonment for a period not exceeding three years.” Article 301: Public calls aimed at violently changing the constitutional order of Armenia “Public calls aimed at violently seizing State power and violently changing the constitutional order of Armenia shall be punishable by a fine of between 300 and 500 times the minimum wage or by detention of between two and three months or by imprisonment for a period not exceeding three years.” B. The Code of Criminal Procedure (in force from 12 January 1999) 1. Detention 47. For a summary of the relevant provisions see the judgment in the case of Poghosyan v. Armenia (no. 44068/07, §§ 26-41, 20 December 2011). The provisions of the CCP which were not cited in that judgment read as follows. 48. According to Article 135, the court, the prosecutor, the investigator or the body of inquest can impose a preventive measure only when the materials obtained in the criminal case provide sufficient grounds to believe that the suspect or the accused may: (1) abscond from the authority dealing with the case; (2) hinder the examination of the case during the pre-trial or court proceedings by exerting unlawful influence on persons involved in the criminal proceedings, by concealing or falsifying materials significant for the case, by failing to appear upon the summons of the authority dealing with the case without valid reasons or by other means; (3) commit an act prohibited by criminal law; (4) avoid criminal liability and serving the imposed sentence; and (5) hinder the execution of the judgment. When deciding on the necessity of imposing a preventive measure or choosing the type of preventive measure to be imposed on the suspect or the accused, the following should be taken into account: (1) the nature and degree of danger of the imputed offence; (2) the personality of the suspect or the accused; (3) age and state of health; (4) sex; (5) occupation; (6) family status and dependants, if any; (7) property situation; (8) whether he has a permanent residence; and (9) other important circumstances. 49. According to Article 139 § 1, if it is necessary to extend the accused’s detention period, the investigator or the prosecutor must submit a well-grounded motion to the court not later than ten days before the expiry of the detention period. The court, agreeing with the necessity of extending the detention period, shall adopt an appropriate decision not later than five days before the expiry of the detention period. 50. According to Article 285 § 1, the prosecutor or the investigator shall file a motion with a court seeking to have detention imposed as a preventive measure or the period of detention extended, if such a necessity arises. The motion must indicate the reasons and grounds necessitating the suspect’s detention. Materials substantiating the motion shall be attached to it. if such is engaged in the case, about the place and time of the court hearing. 51. According to Article 288 § 3, judicial control of detention by the court of appeal shall be carried out in camera in the presence of the prosecutor and defence counsel. Failure to appear of a party who has been notified of the day of the hearing beforehand shall not obstruct the judicial examination. 2. Access to case file 52. According to Article 65 § 2(16), the accused has the right to familiarise himself with all the materials of the case upon the completion of the investigation. 53. According to Article 73 § 1(12), defence counsel is entitled to familiarise himself with all the materials of the case, to make copies of and to take notes on any information contained in the case and in any volume, after the completion of the investigation. 54. According to Article 201, materials of the investigation may be made public only with the permission of the authority dealing with the case. 55. According to Article 265, the investigator, finding that the collected materials are sufficient to draw up the bill of indictment, informs the accused of this and decides on the location and time for his familiarising with the materials of the case. 3. Secret surveillance of telephone conversations 56. According to Article 281, operative and search activities which restrict the right to secrecy of correspondence, telephone conversations, postal, telegraphic and other communications of citizens shall be carried out only upon a judicial warrant. The types of operative and search activities carried out upon a judicial warrant shall be defined by the Operative and Search Activities Act. 57. According to Article 284, operative and search activities which restrict the right to secrecy of correspondence, telephone conversations, postal, telegraphic and other communications of persons may be carried out only upon a judicial warrant, save in cases where one of the interlocutors has agreed beforehand that his conversations be intercepted or monitored. This Article further prescribes the procedure for the judicial examination of motions seeking authorisation to carry out secret surveillance of telephone conversations filed by the head of the authority charged with carrying out operative and search activities. The motion must indicate the grounds justifying such activity, the information sought to be obtained through such activity, the place and time-limit for such activity, as well as all other relevant elements. The materials substantiating the need to carry out such activity must be attached to the motions. The court must indicate the reasons for granting or refusing the motion. The period during which the judicial warrant is effective shall be calculated from the date of its adoption and may not exceed six months, unless decided otherwise by the warrant. The period of an operative and search activity may be extended upon a reasoned motion by the authority carrying out the operative and search activity in accordance with the procedure prescribed by this Article. C. The Operative and Search Activities Act (adopted on 22 October 2007 and entered into force on 8 December 2007) 58. The Operative and Search Activities Act prescribes the notion of operative and search activities, their objectives and principles, bodies carrying out such activities, their rights and obligations, types of such activities and control and supervision over them. 59. Article 14 prescribed the types of operative and search activities which included surveillance of telephone conversations. 60. Article 26 prescribed certain technical aspects of secret surveillance of telephone conversations, including of landline, mobile and internet conversations. 61. Article 31 prescribed that secret surveillance of telephone conversations as an operative and search activity may be authorised only if a person is suspected of a grave or particularly grave crime and if there is sufficient evidence that it is impossible to obtain the information sought by the authority carrying out the activity through other means. 62. According to Article 39, the overall period of secret surveillance of telephone conversations may not exceed twelve months. D. The Law on Legal Acts (in force from 31 May 2002) 63. According to Article 68 § 4, if a rule prescribed by a legal act can be implemented only by adopting another legal act envisaged by the first legal act or if its implementation is directly dependent on the adoption of another legal act, then the legal act in question in its part concerning that rule shall be effective from the date on which the other legal act enters into force. THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 64. The applicant complained that his detention between 10 and 22 June 2007 was not authorised by a court and was therefore unlawful and that the extension of his detention on 7 February 2007 was not carried out in compliance with the time-limits prescribed by law. He invoked 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...” A. Admissibility 1. Compliance with domestic time-limits when extending detention (a) The parties’ submissions 65. The Government submitted that the fact that the five-day time-limit prescribed by Article 139 § 1 of the CCP had not been observed by the District Court when deciding on 7 February 2007 to extend the applicant’s detention did not have any adverse effect on the applicant’s rights guaranteed by Article 5 § 1. The formal non-compliance with the time-limit in question due to some shortcomings in court administration did not render the applicant’s detention arbitrary within the meaning of Article 5 § 1, since the applicant was already in detention and the District Court decided that it was to remain unchanged. 66. The applicant submitted that his detention was to expire on 9 February 2007 and not 10 February 2007, since the start of his detention should have been calculated from the date of his actual taking into custody and not from the date on which the record of his arrest was drawn up. In any event, both the investigator and the District Court failed to comply with the time-limits prescribed by Article 139 § 1 of the CCP. These were grave violations of domestic law and a good reason to quash the decision of the District Court. Furthermore, since a breach of the domestic law entailed a violation of Article 5 § 1, the failure to comply with the time-limits in his case resulted in a breach of that provision. (b) The Court’s assessment 67. The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially refer back to national law and enshrine the obligation to conform to the substantive and procedural rules thereof. Although it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law, under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention and the Court can and should review whether this law has been complied with (see, among many other authorities, Benham v. the United Kingdom, 10 June 1996, § 41, Reports of Judgments and Decisions 1996‑III, and Assanidze v. Georgia [GC], no. 71503/01, § 171, ECHR 2004‑II). A period of detention is, in principle, “lawful” if it is based on a court order. Even flaws in the detention order do not necessarily render the underlying period of detention unlawful within the meaning of Article 5 § 1 (see Benham, cited above, §§ 42-47, and Jėčius v. Lithuania, no. 34578/97, § 68, ECHR 2000‑IX). 68. In the present case, the applicant’s two-month detention period authorised by a court was to expire on 10 February 2007. The applicant contested this and claimed that the expiry date was 9 February 2007. The Court does not find it necessary to rule on this disagreement for the following reasons. Article 139 § 1 of the CCP required the investigator, if he deemed necessary to seek extension of detention, to submit a motion for extension not later than ten days, and the court to adopt its decision not later than five days, before the expiry of the detention period. The investigator in the applicant’s case submitted a motion for extension on 1 February 2007, while the District Court adopted its decision granting that motion and extending the applicant’s detention by two months on 7 February 2007. 69. The Court notes that at the time when the District Court decided on 7 February 2007 to extend the applicant’s detention, his on-going detention was still valid as authorised by the District Court’s previous decision of 12 December 2006. Furthermore, the decision of 7 February 2007, while taken with a short delay, was nevertheless taken several days before the expiry of the authorised detention period. It was adopted by a competent court upon the investigator’s motion as required by the domestic law. The Court considers that the alleged procedural shortcoming in question, namely the short delays in the filing and examination of the investigator’s motion, was of such a formal and minor nature that it did not in any way affect the lawfulness of the relevant detention period. 70. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 2. Lawfulness of detention between 10 and 22 June 2007 71. 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’ submissions 72. The Government submitted that the applicant’s detention between 10 and 22 June 2007 was in compliance with the law, namely Article 138 § 3 of the CCP. 73. The applicant contested this submission, claiming that Article 138 § 3 of the CCP could not be considered as a lawful ground for his detention. 2. The Court’s assessment 74. The Court reiterates that Article 5 of the Convention guarantees the fundamental right to liberty and security. That right is of primary importance in a “democratic society” within the meaning of the Convention (see De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 65, Series A no. 12). 75. 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 Steel and Others v. the United Kingdom, 23 September 1998, § 54, Reports 1998-VII). 76. The Court notes that it has already examined an identical complaint in another case against Armenia, in which it concluded that there had been a violation of Article 5 § 1 of the Convention in that the applicant’s detention was not based on a court decision and was therefore unlawful within the meaning of that provision (see Poghosyan, cited above, §§ 56-64). It sees no reason to reach a different conclusion in the present case and concludes that the applicant’s detention between 10 and 22 June 2007 was unlawful within the meaning of Article 5 § 1. 77. There has accordingly been a violation of Article 5 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 78. The applicant complained of the fact that the domestic courts had failed to provide reasons for his continued detention. He relied on Article 5 § 3 of the Convention, which reads as follows: “3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” A. Admissibility 79. 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’ submissions 80. The Government argued that the domestic courts had provided relevant and sufficient reasons for the applicant’s continued detention based on the materials of the case. 81. The applicant submitted that the domestic courts had failed to provide relevant and sufficient reasons for his continued detention and their reasoning basically amounted to citation of the relevant legal provisions without making any assessment of his particular circumstances. The courts had ignored the fact that the offences with which he was charged were of minor gravity and also failed to take into account his personal situation. Lastly, the investigation had not been carried out with special diligence because it had lasted more than six months despite the fact that all the evidence in the case had been collected on the second day of the investigation. 2. The Court’s assessment (a) General principles 82. A person charged with an offence must always be released pending trial unless the State can show that there are “relevant and sufficient” reasons to justify the continued detention (see Smirnova v. Russia, nos. 46133/99 and 48183/99, § 58, ECHR 2003‑IX (extracts); Becciev v. Moldova, no. 9190/03, § 53, 4 October 2005; and Khodorkovskiy v. Russia, no. 5829/04, § 182, 31 May 2011). 83. The domestic courts must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decisions on the applications for release (see Letellier v. France, 26 June 1991, § 35, Series A no. 207). Arguments for and against release must not be general and abstract (see Clooth v. Belgium, 12 December 1991, § 44, Series A no. 225). 84. The persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Labita v. Italy [GC], no. 26772/95, § 153, ECHR 2000‑IV). 85. The Convention case-law has developed four basic acceptable reasons for detaining a person before judgment when that person is suspected of having committed an offence: the risk that the accused would fail to appear for trial (see Stögmüller v. Austria, 10 November 1969, § 15, Series A no. 9); the risk that the accused, if released, would take action to prejudice the administration of justice (see Wemhoff v. Germany, 27 June 1968, § 14, Series A no. 7) or commit further offences (see Matznetter v. Austria, 10 November 1969, § 9, Series A no. 10) or cause public disorder (see Letellier, cited above, § 51). 86. The danger of an accused’s absconding cannot be gauged solely on the basis of the severity of the sentence risked. It must be assessed with reference to a number of other relevant factors which may either confirm the existence of a danger of absconding or make it appear so slight that it cannot justify detention pending trial (see Yağcı and Sargın v. Turkey, 8 June 1995, § 52, Series A no. 319‑A). The risk of absconding has to be assessed in the light of the factors relating to the person’s character, his morals, home, occupation, assets, family ties and all kinds of links with the country in which he is prosecuted. The expectation of heavy sentence and the weight of evidence may be relevant but is not as such decisive and the possibility of obtaining guarantees may have to be used to offset any risk (see Neumeister v. Austria, 27 June 1968, § 10, Series A no. 8). 87. The danger of the accused’s hindering the proper conduct of the proceedings cannot be relied upon in abstracto, it has to be supported by factual evidence (see Trzaska v. Poland, no. 25792/94, § 65, 11 July 2000). (b) Application of the above principles in the present case 88. In the present case, the Court notes that the domestic courts, when ordering the applicant’s detention and its extension, relied on the gravity of the charge and the risk of his absconding and obstructing the proceedings. 89. The Court observes that both the Kentron and Nork-Marash District Court of Yerevan and the Criminal and Military Court of Appeal, in their decisions ordering and extending the applicant’s detention, limited themselves to repeating these grounds in an abstract and stereotyped way, without indicating any reasons as to why they considered to be well-founded the allegations that the applicant could abscond or obstruct the proceedings. Nor have they attempted to refute the arguments made by the applicant. A general reference to the serious nature of the offence with which the applicant had been charged, on which the courts relied on several occasions, cannot be considered as a sufficient justification of the alleged risks. Furthermore, once the case was brought before a court, the trial court failed to give any reasons whatsoever when extending the applicant’s detention (see paragraph 43 above). 90. It is true that on one occasion, when refusing the applicant’s application for bail, the Court of Appeal justified the risk of his absconding by the fact that he was a foreign national (see paragraph 25 above). The Court considers that, while a relevant factor, this in itself was not sufficient to justify the refusal of bail. The Court of Appeal failed to take into account any of the factors established in the Court’s case-law (see paragraph 86 above), including the fact that the applicant had resided on a permanent basis in Armenia since 1992 and had a family and property and apparently strong social links with the country. The fact that his passport had been seized was also overlooked, although it significantly minimised the risk of flight. 91. As to the other ground for refusal of bail mentioned in the same decision of the Court of Appeal, namely that a co-accused had also been placed in detention, the Court does not see in what way this was relevant for the applicant’s case. Thus, when the only reason for continued detention is the fear that the accused will abscond and thereby subsequently avoid appearing for trial, his release pending trial must be ordered if it is possible to obtain from him guarantees that will ensure such appearance (see Wemhoff, cited above, § 15). In the present case, the domestic courts failed even to consider this possibility and refused his application for bail without carrying out a thorough examination of his particular situation. 92. In the light of the above, the Court considers that the reasons relied on by the District Court and the Court of Appeal in their decisions concerning the applicant’s detention, its extension and when refusing bail were not “relevant and sufficient”. 93. Accordingly there has been a violation of Article 5 § 3 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 94. The applicant complained that the proceedings of 7 February 2007 in the Kentron and Nork-Marash District Court of Yerevan were not adversarial and that he had been deprived of an oral hearing before the Court of Appeal on 14 May 2007. He invoked Article 5 § 3 of the Convention. The Court decided to examine these complaints under Article 5 § 4 of the Convention (see paragraphs 101-102 below) which, in so far as relevant, reads as follows: “4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A. Admissibility 1. Adversarial proceedings and equality of arms 95. The Government submitted that Article 5 § 4 was not applicable to the detention hearing of 7 February 2007 since it determined questions of extension of the applicant’s detention upon the investigator’s motion, whereas this Article was applicable only to proceedings initiated by the detainee. Therefore, the detention hearing in question fell within the ambit of Article 5 § 3 which did not require that proceedings in the first instance court be adversarial. 96. The applicant submitted that Article 5 § 4 was applicable to the proceedings in question. 97. The Court notes that the Government’s objection is closely linked to the substance of the applicant’s complaint and must therefore be joined to the merits. 2. Conclusion 98. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 1. Adversarial proceedings and equality of arms (a) The parties’ submissions 99. The Government submitted that Article 201 of the CCP allowed preliminary investigation materials to be made public only with the permission of the investigating authority. Hence, before the hearing of 7 February 2007 the investigator, together with his motion seeking extension of detention, submitted certain documents to the District Court in support of his motion. At the same time the investigator did not find it appropriate to present the files to the applicant and his lawyer, since according to the law the accused had the right to familiarise himself with the materials of the case only upon completion of the investigation. However, this did not raise an issue since the proceedings in question were covered by Article 5 § 3, as opposed to Article 5 § 4, and the requirement of an adversarial hearing did not apply. 100. The applicant submitted that Article 5 § 4 required that the proceedings be adversarial and equality of arms be ensured, which did not happen in his case. Neither he nor his lawyers were aware that the investigator had submitted certain documents to the presiding judge in support of his motion of 1 February 2007. They had no access to those documents because of the restrictions imposed by law and were not able to comment on them. He was therefore deprived of the possibility to present his case effectively, in violation of Article 5 § 4. (b) The Court’s assessment 101. The Court will first address the question of applicability of Article 5 § 4 to the proceedings in question, namely the detention hearing of 7 February 2007 at which the Kentron and Nork-Marash District Court of Yerevan decided to grant the investigator’s motion seeking to extend the applicant’s detention. 102. It notes that a similar objection as the one raised by the Government in the present case was examined and dismissed in the case of Lebedev v. Russia (no. 4493/04, judgment of 25 October 2007). In that case, the Court held that it was of little relevance whether the domestic court decided on an application for release lodged by the defence or a request for detention introduced by the prosecution (see ibid., § 72). In reaching this conclusion the Court referred to a number of cases in which it had decided that the extension of the applicant’s detention on remand by a court at the request of the prosecution also attracted the guarantees of Article 5 § 4 (see Graužinis v. Lithuania, no. 37975/97, § 33, 10 October 2000; Włoch v. Poland, no. 27785/95, §§ 125 et seq., ECHR 2000‑XI; and Telecki v Poland (dec.) no. 56552/00, 3 July 2003). The Court went on to conclude that Article 5 § 4 was applicable to the proceedings determining questions of extension of the applicant’s detention (see Lebedev, cited above, § 74). The Court therefore concludes that the guarantees of Article 5 § 4 are applicable to the detention hearing of 7 February 2007 and decides to dismiss the Government’s objection. 103. The Court reiterates that Article 5 § 4 requires that a court examining an appeal against detention provide guarantees of a judicial procedure. The proceedings must be adversarial and must always ensure “equality of arms” between the parties, the prosecutor and the detained person. Equality of arms is not ensured if counsel is denied access to those documents in the investigation file which are essential in order effectively to challenge the lawfulness of his client’s detention (see Lamy v. Belgium, 30 March 1989, § 29, Series A no. 151; Nikolova v. Bulgaria [GC], no. 31195/96, § 58, ECHR 1999‑II; and Garcia Alva v. Germany, no. 23541/94, § 39, 13 February 2001). This principle may also require the court to hear witnesses whose testimony appears prima facie to have a material bearing on the continuing lawfulness of the detention (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 204, ECHR 2009). 104. Turning to the circumstances of the present case, the Court notes that on 1 February 2007 the investigator filed a motion with the District Court seeking to have the applicant’s detention extended. In support of this motion the investigator submitted certain evidence contained in the case file which was not revealed to the applicant’s lawyers and they were not able to comment on or challenge that evidence. This fact was admitted by the District Court at its next detention hearing (see paragraph 31 above). The Government also admitted this but tried to justify it with the fact that the domestic law precluded revealing the materials of the case to the defence before the completion of the investigation. The Court considers that the domestic law imposes an excessive restriction in this respect. As it already stated in the preceding paragraph, in order to be able to challenge effectively the basis of the allegations against his client and the lawfulness of his client’s detention, at least the materials of the case-file which are essential for the defence to do so - among which the exculpating evidence - must be disclosed to the defence. In this respect the Court draws a distinction between all the materials of a criminal case - which generally should be disclosed for the proceedings under Article 6 for the determination of one’s guilt (see, however, ibid., § 205) - and the materials which should be disclosed in connection with a foreseen procedure under Article 5 § 4. This, however, did not happen in the present case. The Court therefore concludes that the manner in which the proceedings before the District Court were conducted on 7 February 2007 failed to ensure an adversarial procedure and equality of arms between the parties. 105. There has accordingly been a violation of Article 5 § 4 of the Convention on this count. 2. Oral hearing (a) The parties’ submissions 106. The Government submitted that the applicant’s lawyers had been notified about the hearing of 14 May 2007 by registered post. The court had sent a summons on 11 May 2007 which had been handed to them. Besides, they had been notified about the date and time of the hearing by telephone but had failed to appear. The Court of Appeal had proceeded with the examination of the appeal in accordance with Article 288 § 3 of the CCP. The proceedings therefore complied with Article 5 § 4. In support of their arguments the Government submitted a copy of a postal receipt which contained the names of the applicant’s lawyers, a stamp of the Court of Appeal and a postal stamp on the reverse dated 11 May 2007. 107. The applicant claimed that the Government had failed to submit any evidence that his lawyers had been duly notified about the hearing of 14 May 2007. The postal receipt submitted could not serve as such evidence since there was no address on the receipt and it was not possible to establish the content of the letter sent under that receipt. Furthermore, nothing in the submitted receipt suggested that the letter in question had been sent by registered post. There was no other document indicating that they had received a summons. 108. The applicant submitted that the absence of his lawyers from the hearing before the Court of Appeal had violated Article 5 § 4. Notably, the Court of Appeal had requested and received a number of documents which had not been examined at the hearing in the District Court. His lawyers were not able to comment on those documents or to present his case. (b) The Court’s assessment 109. The Court reiterates that, in certain circumstances, Article 5 § 4 may require a detainee’s presence at an oral hearing (see Singh v. the United Kingdom, 21 February 1996, §§ 67-69, Reports 1996‑I; Graužinis v. Lithuania, cited above, §§ 33-34; Waite v. the United Kingdom, no. 53236/99, § 59, 10 December 2002; Lebedev, cited above, § 113; and Khodorkovskiy, cited above, § 235). 110. The Court further reiterates that Article 5 § 4 does not compel the Contracting States to set up a second level of jurisdiction for the examination of the lawfulness of detention and for hearing applications for release. Nevertheless, a State which institutes such a system must in principle accord detainees the same guarantees on appeal as at first instance (see Toth v. Austria, 12 December 1991, § 84, Series A no. 224). Furthermore, although Article 5 § 4 of the Convention does not guarantee a right to appeal against decisions on the lawfulness of detention, it follows from the aim and purpose of this provision that its requirements must be respected by appeal courts if an appeal lies against a decision on the lawfulness of detention (see Rutten v. the Netherlands, no. 32605/96, § 53, 24 July 2001). 111. Turning to the circumstances of the present case, neither the applicant nor his lawyers were present at the hearing of 14 May 2007 at which the Court of Appeal upheld the decision of the District Court of 4 April 2007 to extend his detention. The parties are in dispute as to whether the applicant’s lawyers were duly notified about this hearing. 112. The Court notes in this respect that it appears from the postal receipt submitted by the Government that a summons inviting the applicant’s lawyers to attend a hearing to be held at 2 p.m. on 14 May 2007 was sent to them on 11 May 2007. Furthermore, it follows from the transcript of the hearing of 14 May 2007 before the Court of Appeal that the lawyers had been also apprised by telephone, which they did not deny. In such circumstances, there is not enough evidence to conclude that the failure of the applicant’s lawyers to appear at the hearing of 14 May 2007 could be attributed to the authorities. There is therefore no appearance of a violation of Article 5 § 4 of the Convention. 113. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 114. The applicant complained that the secret surveillance of his telephone conversations was in violation of the guarantees of Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 115. 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’ submissions (a) The Government 116. The Government submitted that the secret surveillance of the applicant’s telephone conversations was justified for the purpose of investigating the information received at the NSS suggesting that the organisation led by the applicant was carrying out activities aimed at overthrowing the government through unconstitutional means. The interference was in accordance with the law since the grounds and the procedure for it were prescribed by the CCP. It pursued a legitimate aim and was necessary in the interests of national security and for the prevention of disorder and crime. (b) The applicant 117. The applicant submitted that at the material time there was no law in Armenia which would prescribe the procedure for secret surveillance and recording of telephone and other communications. The Government’s submissions were of a general nature and failed even to point out the relevant provisions of the CCP. However, pursuant to Article 281 of the CCP the types of operative and search activities, including telephone tapping, were to be defined by the Operative and Search Activities Act, which was adopted and entered into force following the circumstances of his case, namely in October and December 2007 respectively. It was only in this Law that certain legislative safeguards were introduced for the protection of the rights to private life and correspondence. Article 68 § 4 of the Law on Legal Acts precluded a legal norm from being applied if its implementation was dependent on the adoption of another legal act. Accordingly, Article 281 of the CCP could not be applied until the Operative and Search Activities Act was adopted. In conclusion, there was no law at the material time that regulated the activities authorised by the judicial warrant of 15 August 2006 and provided safeguards for his rights. As a result, the NSS carried out total surveillance of his correspondence and other communications and conversations. 118. Furthermore, the vague and uncertain wording of the judicial warrant of 15 August 2006 gave practically unlimited power to the NSS to have total control over his communications and conversations, including those with his wife, mother, children, other relatives, friends, colleagues, partners in activity and the rest of his personal, social and professional environment. Up to then he had still not been informed about the fate of the data collected during the six-month surveillance period. The fact that the investigating authority was aware that on 15 January 2007 he had transmitted through his lawyer a note to his co-accused also demonstrated that all his discussions with his lawyers in the penitentiary institution were under real danger of surveillance. (c) The Government’s reply 119. The Government, in reply to the applicant’s observations, submitted that the secret surveillance of the applicant’s communications was regulated by Articles 281 and 284 of the CCP. The applicant’s interpretation of Article 68 § 4 of the Law on Legal Acts was incorrect and the implementation of Articles 281 and 284 of the CCP was not conditioned by the adoption of the Operative and Search Activities Act. That Act was simply supposed to define the types of operative and search activities and this did not mean that the secret surveillance of telephone and other communications had no legal basis. 2. The Court’s assessment (a) Whether there was an interference with the applicant’s right to respect for private life and correspondence 120. The Court notes that it is not disputed that the surveillance carried out by the NSS in the present case amounted to an interference with the applicant’s rights under Article 8 § 1 of the Convention. The principal issue is whether this interference was justified under Article 8 § 2, notably whether it was “in accordance with the law”, pursued a legitimate aim and was “necessary in a democratic society” in order to achieve that aim. (b) Whether the interference was justified 121. The Court draws attention to its established case-law, according to which the expression “in accordance with the law” not only requires that the impugned measure should have some basis in domestic law, but also refers to the quality of the law in question, requiring that it should be accessible to the person concerned and foreseeable as to its effects (see Amann v. Switzerland [GC], no. 27798/95, § 50, ECHR 2000‑II, and Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000‑V). 122. In the present case, the Court notes that in authorising the secret surveillance of the applicant’s telephone conversations the District Court referred to Articles 281 and 284 of the CCP which allowed the secret surveillance of telephone conversations as an operative and search activity. The applicant alleged that Article 281 of the CCP was not effective at the material time, since its application depended on the adoption of another legal act. The Court reiterates in this respect that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see Kruslin v. France, 24 April 1990, § 29, Series A no. 176‑A, and Kopp v. Switzerland, 25 March 1998, § 59, Reports 1998‑II). Bearing this in mind and having regard to the impugned legal provisions, it does not discern sufficient grounds to agree with the applicant’s allegation. Thus, the Court considers that the secret surveillance of the applicant’s telephone conversations had a basis in domestic law. It also considers that no issue arises as to the accessibility of these legal provisions. 123. As regards their foreseeability, the Court reiterates that in the special context of interception of communications for the purposes of police investigations the requirement of foreseeability cannot mean that an individual should be enabled to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly. Nevertheless, the law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to this secret and potentially dangerous interference with the right to respect for private life and correspondence (see Malone v. the United Kingdom, 2 August 1984, § 67, Series A no. 82). 124. Tapping and other forms of interception of telephone conversations constitute a serious interference with private life and correspondence and must accordingly be based on a “law” that is particularly precise. It is essential to have clear, detailed rules on the subject, especially as the technology available for use is continually becoming more sophisticated (see Kopp, cited above, § 72, and Amann, cited above, § 56). 125. In its case-law on secret measures of surveillance, the Court has developed the following minimum safeguards that should be set out in statute law in order to avoid abuses of power: the nature of the offences which may give rise to an interception order; a definition of the categories of people liable to have their telephones tapped; a limit on the duration of telephone tapping; the procedure to be followed for examining, using and storing the data obtained; the precautions to be taken when communicating the data to other parties; and the circumstances in which recordings may or must be erased or the tapes destroyed (see Weber and Saravia v. Germany (dec.), no. 54934/00, § 95, ECHR 2006‑XI; Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, no. 62540/00, § 76, 28 June 2007; and Liberty and Others v. the United Kingdom, no. 58243/00, § 95, 1 July 2008). 126. Furthermore, there must be a measure of legal protection in domestic law against arbitrary interference by public authorities with the rights safeguarded by Article 8 § 1. Especially where a power of the executive is exercised in secret, the risks of arbitrariness are evident. Since the implementation in practice of measures of secret surveillance of communications is not open to scrutiny by the individuals concerned or the public at large, it would be contrary to the rule of law for the legal discretion granted to the executive or to a judge to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference (see Kruslin, cited above, § 30; Amann, cited above, § 56; and Rotaru, cited above, §§ 55-56). 127. The Court must therefore be satisfied that there exist adequate and effective guarantees against abuse. This assessment depends on all the circumstances of the case, such as the nature, scope and duration of the possible measures, the grounds required for ordering them, the authorities competent to permit, carry out and supervise them, and the kind of remedy provided by the national law (see Klass and Others v. Germany, 6 September 1978, § 50, Series A no. 28; Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 77; and Uzun v. Germany, no. 35623/05 , § 63, ECHR 2010 (extracts)). 128. Turning to the circumstances of the present case, the Court notes that Armenian law, as in force at the material time, provided certain safeguards against arbitrary interference. Notably, Articles 281 and 284 of the CCP required judicial authorisation of secret surveillance of telephone conversations. Furthermore, surveillance could only be allowed pursuant to a written motion giving reasons, which could be made solely by the heads of certain services. The motion was to specify the information sought to be obtained and the time-limit of the surveillance and was to be accompanied by materials justifying the necessity of such measure. 129. While not minimising the importance of the above safeguards, the Court cannot overlook a number of serious shortcomings in Armenian law at the material time. 130. In particular, the law did not set out either the types of offences or the categories of persons in whose respect secret surveillance could be authorised. Nor did it specify the circumstances in which, or the grounds on which, such a measure could be ordered. It must be noted in this respect that the lack of such details was capable of leading to particularly serious consequences, given that this measure could be authorised in the absence of any criminal proceedings. 131. The law further failed to prescribe a clear maximum time-limit for secret surveillance. Thus, while the effect of a judicial warrant authorising surveillance was normally limited to six months, the judge was nevertheless free to decide otherwise. 132. Furthermore, the law did not prescribe any periodic review of the measure or judicial or other similarly independent control over its implementation, or any rules for examining, using, storing and destroying the data. No notification of the person affected was required after the termination of the surveillance in cases when such notification would no longer jeopardise the purpose of the surveillance (see in this respect, for example, Weber and Saravia, cited above, § 135, and Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 90). 133. The foregoing is sufficient for the Court to conclude that the interference was not “in accordance with the law” since Armenian law at the material time did not contain sufficiently clear and detailed rules and did not provide sufficient safeguards against abuse. 134. There has accordingly been a violation of Article 8 of the Convention. V. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 5 § 3 OF THE CONVENTION 135. The applicant further complained that he had been discriminated against on the ground of his nationality, because the courts justified his detention by the fact that he was a foreign national. He invoked Article 14 which reads 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.” Admissibility 1. The parties’ submissions 136. The Government submitted that the domestic courts never relied on the fact that the applicant was a foreign national when ordering and extending his detention. It was only in the decision refusing bail that the Court of Appeal referred to this ground. In any event, the applicant did not suffer discriminatory treatment because his co-accused, who was an Armenian national, was subjected to the same treatment by having been placed in detention. Moreover, the applicant failed to exhaust the domestic remedies, since he never raised this issue before the courts. 137. The applicant argued that his detention with reliance on his being a foreign national amounted to discrimination in violation of Article 14. 2. The Court’s assessment 138. The Court does not consider it necessary to address the entirety of the parties’ submissions for the following reasons. 139. It reiterates that discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations (see Willis v. the United Kingdom, no. 36042/97, § 48, ECHR 2002-IV). As already indicated above, the Court of Appeal referred to the fact that the applicant was a foreign national in justifying the risk of his flight. It is true that this was the only relevant factor relied on by the Court of Appeal in its assessment of that risk. However, the Court does not consider that this was done as a consequence of discriminatory treatment but rather of failing to address all the relevant factors pertaining to the applicant’s situation thereby resulting in a poorly reasoned decision (see paragraphs 90-92 above). 140. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. VI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 141. Lastly, the applicant raised a number of other complaints under Article 5 §§ 1 and 3 and Article 10 of the Convention. 142. Having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION 143. 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 144. The applicant claimed 118,450 euros (EUR) in respect of non‑pecuniary damage. 145. The Government objected to this claim. 146. The Court considers that the applicant undoubtedly suffered non-pecuniary damage as a result of the violations found and decides to award him EUR 6,000 in respect of such damage. B. Costs and expenses 147. The applicant also claimed 24,800 Armenian drams for the costs and expenses incurred before the Court, namely postal expenses. 148. The Government submitted that there was no need for the applicant to use the expensive FedEx service. He could have used the services of the Armenian post office which were much cheaper. 149. 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 considers it reasonable to award EUR 55 for costs and expenses. C. Default interest 150. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the alleged unlawfulness of the applicant’s detention between 10 and 22 June 2007, the alleged lack of reasons for his continued detention, the failure to ensure adversarial proceedings and equality of arms at the detention hearing of 7 February 2007 and the secret surveillance of the applicant’s telephone conversations admissible under Article 5 §§ 1, 3 and 4 and Article 8 of the Convention and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 5 § 1 of the Convention in that the applicant’s detention between 10 and 22 June 2007 lacked legal basis; 3. Holds that there has been a violation of Article 5 § 3 of the Convention on account of the failure to provide relevant and sufficient reasons for the applicant’s continued detention; 4. Holds that there has been a violation of Article 5 § 4 of the Convention in that the proceedings in the Kentron and Nork-Marash District Court of Yerevan of 7 February 2007 were not adversarial and failed to ensure equality of arms; 5. Holds that there has been a violation of Article 8 of the Convention; 6. 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, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 55 (fifty-five euros), plus any tax that may be chargeable to the applicant, 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; 7. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 2 October 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaJosep CasadevallRegistrarPresident

THIRD SECTION CASE OF PETROV AND X v. RUSSIA (Application no. 23608/16) JUDGMENT STRASBOURG 23 October 2018 FINAL 04/02/2019 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Petrov and X v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Vincent A. De Gaetano, President,Branko Lubarda,Dmitry Dedov,Alena Poláčková,Georgios A. Serghides,Jolien Schukking,María Elósegui, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 25 September 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 23608/16) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Russian nationals, Mr Daniil Viktorovich Petrov (“the first applicant”) and X (“the second applicant”), on 25 April 2016. The Court decided of its own motion that the second applicant’s name should not be disclosed (Rule 47 § 4 of the Rules of Court). 2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin. 3. The applicants alleged, in particular, that the refusal to make a residence order in the first applicant’s favour in respect of the second applicant had violated their right to respect for their family life, and had, moreover, amounted to discrimination on grounds of sex. 4. On 13 September 2016 the application was communicated to the Government. On the same date the President decided to grant the case priority under Rule 41 of the Rules of Court. THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. Background information 5. The first applicant was born in 1975 and lives in St Petersburg. X, the second applicant, was born in 2012 and lives in the Moscow region. 6. The applicants are father and son. The first applicant lodged the application on his own behalf and on behalf of his son, who is a minor. 7. Until April 2013 the first applicant, his wife M. and their son X lived together in St Petersburg, where X had his residence registration and his continuing paediatric and specialist care for his chronic illness, and where he was on the waiting list for a local nursery school. 8. On 28 April 2013 M. left the first applicant and took X with her. According to M., she left the first applicant because of frequent disputes between them during which the first applicant had shouted at her. She left a note promising to contact him shortly. She went directly to her flat in Nizhny Novgorod. She sent him an email on 30 April 2013, indicating her whereabouts. According to the first applicant, she did not leave an address and did not answer her mobile phone. The first applicant unsuccessfully searched for her in Nizhniy Novgorod, where she possessed a flat jointly with her parents, and in Moscow, where her parents lived at that time. 9. On 30 April 2013 the first applicant contacted the St Petersburg childcare authorities and asked for assistance in finding his son and returning him to his registered place of residence in that city. 10. Later on the same day the first applicant learned that M. and the second applicant were in Nizhniy Novgorod and on 17 May 2013 M. allowed him to visit them there. 11. Since that date M. has allowed the applicant to see his son on average six days per month for two hours each time. However, sometimes she has not allowed the first applicant to see his son for weeks at a time or has taken him out of town for long periods without informing the first applicant about his son’s whereabouts. For example, on 29 December 2013 the first applicant complained to the Nizhniy Novgorod childcare authorities that M. had taken X away to an unknown location and had cancelled a meeting that had been scheduled by mutual agreement for 27 December 2013. B. Child residence proceedings 12. On 30 August 2013 M. instituted divorce proceedings before the Nizhegorodskiy District Court of Nizhniy Novgorod, and asked for a residence order in respect of X. She submitted, in particular, that she was on parental leave and was still breastfeeding her son. She was a part‑owner of her parents’ flat where she and her son occupied a room. She also argued that she could create better conditions for the development of the child because she had a university diploma and good references from her previous place of work and also because she was calm and loving. 13. M. submitted an opinion by a psychologist, L., whom she and the first applicant had consulted once before their separation regarding their marital problems. L. noted that the first applicant’s supressed aggression towards M. and his wish to dominate her had been the cause of their marital issues. L. considered that in the event of divorce, it would be in X’s best interest to live with his mother. 14. The first applicant asked that M.’s request for a residence order be rejected and that X be returned from Nizhniy Novgorod to St Petersburg. He submitted that it would be better for the child if he and both his parents lived in St Petersburg for the following reasons. Firstly, considerable amounts of money would be spent by the first applicant travelling to Nizhniy Novgorod to visit his son. If the entire family lived in St Petersburg, that money could be better spent on the child’s needs. Secondly, living conditions in St Petersburg were better than in Nizhniy Novgorod. The first applicant had three spacious flats in St Petersburg and a dacha in the surrounding region, while in Nizhniy Novgorod M.’s family possessed only a small one-bedroom flat. St Petersburg provided better development and educational opportunities having more sports centres, better schools and universities, and world-famous cultural heritage. It also had better medical services, less air pollution and a lower crime rate than Nizhniy Novgorod. Thirdly, the second applicant had been born in St Petersburg and had lived there until taken away by M. He had his residence registration and his continuing paediatric and specialist care there and was on the waiting list for a local nursery school. Moreover, X’s paternal grandparents and other relatives lived in St Petersburg. If M. agreed to move back to St Petersburg, the first applicant proposed donating one of his three flats to her. He proposed an arrangement according to which X would live one third of every month with him and two thirds of every month with M. until the age of three, and half of every month with each of the parents after that. He argued that that arrangement would ensure that the second applicant maintained family ties with both parents. 15. Subsequently, the first applicant lodged a counterclaim, applying for a residence order in respect of the second applicant. He submitted that X’s young age alone could not justify his residence with his mother. He was older than one and a half years and there was no longer any need to breastfeed him. He submitted a copy of X’s medical records from which it was apparent that the breastfeeding had stopped in May 2013. The first applicant further submitted that he had a stable income from bank‑deposit interest while M. had no income and lived on the child maintenance that he paid her. He worked as a volunteer in a number of social NGOs and had flexible working hours and could therefore devote a lot of time to his son. Indeed, while they had lived together, he had spent as much time with the child and had been responsible for his everyday care as much as M. They had a very strong mutual attachment. Given his education and background, the first applicant could provide the child with a better upbringing. For example, he had teaching experience – in particular he had worked as a teacher in children’s summer camps. The first applicant further submitted that M. had abducted the child. She had restricted the first applicant’s contact with his son and had sometimes taken him away for long periods of time without informing the first applicant of his whereabouts. He vowed that if the child were to reside with him, he would not in any way hinder his contact with his mother. 16. The Nizhegorodskiy District Court refused to accept the first applicant’s application for a residence order, finding that he should have submitted it at the beginning of the proceedings. It also refused to accept X’s medical records in the file, finding that they were irrelevant and that M. was the only one who could tell whether she was still breastfeeding. 17. Lastly, the first applicant asked that the court appoint a psychological expert to examine him, M. and the second applicant to assess each parent’s suitability for raising the child and each parent’s relationships with him. The Nizhegorodskiy District Court rejected that application. It however asked the Nizhniy Novgorod and St Petersburg childcare authorities to assess the first applicant’s and M.’s living conditions and to express an opinion on the issue of the second applicant’s residence. 18. The first applicant’s parents applied to intervene as third parties and that the second applicant’s residence be set as St Petersburg. They submitted, in particular, that they had not seen their grandson since March 2013 because M. had refused to bring him to St Petersburg for a visit. They could not visit him in Nizhniy Novgorod because the first applicant’s mother was disabled and could not travel there, a distance of more than 1,000 km. The first applicant’s father could not leave his wife alone and unassisted and could not therefore go to Nizhniy Novgorod either. The decision to set the second applicant’s residence as Nizhniy Novgorod with his mother would therefore most likely mean that they would never be able to see him again. The Nizhegorodskiy District Court dismissed their application to intervene as third parties, finding that they could lodge a separate suit. 19. On 20 November 2013 the Nizhegorodskiy District Court adjourned the examination of the case until 20 February 2014, enjoining the first applicant and M. to attempt marriage reconciliation. 20. On 18 February 2014 the St Petersburg childcare authorities issued their opinion on the case, finding that it was in the second applicant’s best interest to live with his father. It noted that M. had taken the child away and had for some time concealed his whereabouts from the first applicant. She had restricted the first applicant’s contact with the child. She was unemployed and had no income except the child maintenance paid by the first applicant. Her only pecuniary asset was a share in her parents’ one‑bedroom flat in Nizhniy Novgorod. M.’s parents lived in Moscow. By contrast, the first applicant had a stable and sufficient income from bank‑deposit interest and did not need to work. He could therefore spend most of his time with the child. He owned a one-bedroom flat in St Petersburg and part-owned two other flats. The first applicant’s parents lived in St Petersburg. His mother was confined to a wheelchair, which restricted her ability to travel to Nizhniy Novgorod to see her grandson. 21. On 31 March 2014 the Nizhniy Novgorod childcare authorities also issued their opinion on the case, finding that it was in the second applicant’s best interest to live with his mother. It found that M. had good living conditions and received child maintenance from the first applicant and financial help from her parents. According to M., she was breastfeeding and was on parental leave devoting all her time to the child. She did not wish to return to St Petersburg. It was true that the first applicant also had good living conditions and had actively participated in the child’s upbringing and care. However, taking into account X’s young age, it was better for him to live with his mother for the time being. In reply to the applicant’s question, the Nizhniy Novgorod childcare authorities explained, in a letter of 12 May 2014, that a child was considered to be of “young age” until 18 years old and that “for the time being” meant until a change of circumstances, for example the child’s reaching the age of ten or fourteen. 22. On 4 April 2014 the Nizhegorodskiy District Court granted the divorce and M.’s application for a residence order in respect of the second applicant. The court firstly cited the opinion of 31 March 2014 of the Nizhniy Novgorod childcare authorities. It then noted that the family had lived in St Petersburg until M. had left her husband and moved to Nizhniy Novgorod taking the child with her. M. co-owned the flat in Nizhniy Novgorod where she currently lived with X; that flat had everything necessary for a small child. The District Court continued: “It is apparent from [M.’s] submissions that she is still breastfeeding the child. [M.] is on parental leave and devotes all her time to the child. [M.]’s parents help her take care of and [financially] support the child. The [first applicant] pays [M.] 15,000 roubles [RUB] every month of his own accord. The child is on a waiting list for a nursery school. The [first applicant] ... takes an active part in his son’s life. He wants the child to live in St Petersburg, where he has created all necessary conditions for him. [M.] however categorically refuses to move to St Petersburg. Both parents have positive character references and wish to live together with the child and participate directly in his upbringing. In such circumstances, and based exclusively on the interests of the child and on the situation in which he is now, taking into account the child’s age, the court considers it opportune [целесообразно] to grant the residence order in respect of [X] to his mother [M.] for the time being. The court reminds the parties that in accordance with Article 66 of the Family Code the parent residing separately from the child is entitled to maintain contact with the child and to participate in his or her upbringing and education. The parent with whom the child resides may not hinder the child’s contact with the other parent, unless such contact undermines the child’s physical or psychological health or moral development. [The first applicant]’s ... financial situation allows him to visit the child in Nizhniy Novgorod (according to [the first applicant’s] submissions his monthly income is about RUB 60,000). The [first applicant]’s arguments that St Petersburg has less air pollution, a lower crime rate and better local infrastructure for children than Nizhniy Novgorod are legally irrelevant because the child’s place of residence is with his parents. In the present case the court grants the residence order to the mother [M.]; [M.’s] place of residence is currently in Nizhniy Novgorod.” 23. The first applicant appealed, repeating his previous arguments. He further complained that the District Court had not conducted an in-depth examination of the case. In particular, the District Court had not taken into account the opinion of 18 February 2014 of the St Petersburg childcare authority. It had not even cited the opinion, let alone explained why it disagreed with it. The only reason advanced by the District Court for its decision to grant the residence order to the child’s mother had been the child’s age. The child’s age was only one of the criteria mentioned in Article 65 of the Family Code (see paragraph 58 below) that the domestic courts were to take into account when deciding on a child’s residence arrangements. The District Court had not taken into account the other criteria mentioned in Article 65. Nor had it ordered a psychological expert examination to establish the child’s relationship with each parent and his best interests. Moreover, given that the second applicant had been more than one and a half years old at the time of the District Court’s decision, there had been no justification for automatically preferring residence with his mother over residence with his father. Such automatic preference of the mother over the father in a case where the father could provide better living and development conditions for the child had amounted to discrimination on grounds of sex. The first applicant also disputed some of the facts established by the District Court. In particular, the second applicant’s medical documents indicated that breastfeeding had stopped at the age of one. In any event, the official medical guidance recommended that breastfeeding be stopped at the age of one and a half years old at the latest. Moreover, M. was unemployed rather than on parental leave because she had not been in employment since 2009. In any event, M. had returned to work in December 2014 and since then the second applicant had been taken care of during the day by his maternal grandmother. By contrast, the first applicant had sufficient non-work income and a flexible schedule for his social-volunteer activities and could therefore take care of the child himself. Lastly, the first applicant argued that inherent in the concept of the child’s “best interests” was the right for a child not to be removed from one of his or her parents and retained by the other (he referred to Maumousseau and Washington v. France, no. 39388/05, 6 December 2007). M. had abducted the second applicant and had restricted the number and the length of the first applicant’s visits, including during the period after the District Court’s judgment. In total, during the previous nineteen months he had been allowed to see his son 122 times only. Lastly, the first applicant complained that the refusal to examine his counterclaim – that is his application for a residence order in his favour – had been unlawful. 24. On 2 October 2014 the first applicant complained to the Nizhniy Novgorod childcare authorities that M. had continued to restrict his contact with his son. In particular, on several occasions she had agreed to a visit but after he had travelled from St Petersburg to Nizhniy Novgorod she had changed her mind and refused to let him see his son. 25. On 10 March 2015 the Nizhniy Novgorod Regional Court upheld the judgment of 4 April 2014 on appeal. It held: “Having analysed the entirety of the evidence in the case file, including the child authorities’ opinions on the merits of the case, [the District Court] made a reasoned finding that granting a residence order in respect of [X] to the father was not in the interests of the child who, after the parents’ separation, had been brought up by his mother. The court rejects [the first applicant’s] appeal submissions ... which in essence convey a disagreement with [the District Court’s] assessment of evidence. It notes that a parent’s better financial or social situation or professional position are not decisive factors in deciding the question of the child’s residence ... In the present case [the District Court] made a thorough assessment of the evidence presented by the parties in support of their claims and objections. The court’s findings were based on the evidence in the case file. There is no reason to doubt the impartiality of the examination and assessment of evidence ...” The court also added that the issue of the child’s contact with his grandparents was to be examined in separate proceedings. Furthermore, the refusal to examine the first applicant’s counterclaim had not breached his rights as the domestic courts had to give a residence order to the parent who could better meet the needs of the child, irrespective of which of the parents had been the first to apply for a residence order in his or her favour and of whether the other parent had lodged a counterclaim or not. 26. On 13 March 2015 the Nizhniy Novgorod childcare authorities informed the first applicant that they had had a meeting with M. during which she had been told that she had to keep the child’s father informed about the child’s whereabouts and that the child was entitled to maintain contact with his grandparents and other relatives. 27. On 12 June 2015 the first applicant’s mother died. She had not seen her grandson since April 2013. 28. On 6 October 2015 a judge of the Nizhniy Novgorod Regional Court refused to refer the first applicant’s cassation appeal against the residence order to the Presidium of that court for examination, finding no significant violations of substantive or procedural law which had influenced the outcome of the proceedings. It noted, in particular, that the main reason for granting the residence order to M. had been the second applicant’s young age. In such circumstances, the first applicant’s argument that it was in the child’s best interest to live with his father had been unconvincing. M.’s actions in taking the child away from St Petersburg had not amounted to abduction, a criminal offence under Article 126 of the Criminal Code. M. had not committed any criminal offence by moving to Nizhniy Novgorod with her son. Lastly, the judge found no evidence of discrimination. 29. On 27 October 2015 a judge of the Supreme Court of the Russian Federation refused to refer the case to the Civil Chamber of the Supreme Court for consideration, finding no significant violations of substantive or procedural law which had influenced the outcome of the proceedings. C. Contact proceedings 30. On 9 September 2015 M. moved to Moscow where she had found a job. X remained in Nizhniy Novgorod with his maternal grandmother. 31. On an unspecified date the first applicant applied to the Nizhegorodskiy District Court for contact rights, claiming that M. decided whimsically on the days when she would allow him to see his son without taking into account that he lived in another town, and that she occasionally prohibited any contact between them for long periods of time. 32. On 29 September 2015 the Nizhegorodskiy District Court allowed the first applicant’s application for an interim contact order. It determined the contact schedule as follows. While the main contact proceedings were pending, the applicants should be able to have contact for no more than ten consecutive days starting on the first Wednesday of each month, from 10 a.m. to 1 p.m. and from 5 to 8 p.m., unless otherwise agreed between the parents. The contact should take place at X’s place of residence, in the mother’s presence, or in her absence if she agreed, and with the right to attend outdoor activities for children if X was in good health. The court also ordered that M. should inform the first applicant immediately by telephone if X were suffering from illness, and inform him two days in advance about any temporary change of residence. If the applicants had not seen each other for more than ten days, M. should ensure their communication through IP telephony for no less than five minutes every two days. M. should not hinder the first applicant’s attendance of X’s medical procedures or educational and recreational activities in which X participated. She should also consult the first applicant in writing before taking any decisions concerning X’s medical treatment or education. 33. On 8 December 2015 the Nizhniy Novgorod Regional Court upheld the interim contact order on appeal. 34. On an unspecified date the Nizhegorodskiy District Court ordered an expert report to determine X’s relationship with each of the parents. 35. On 19 January 2016 a panel of psychology and psychiatry experts examined the applicants and M. and found that X was attached to both parents and was emotionally close to both of them. They were both involved in X’s education, although their educational methods were different: M. was milder, more permissive and more supportive, while the first applicant was more domineering and controlling and was not always capable of taking into account X’s age and stage of development. X was more excitable and capricious in his father’s presence, while his mother’s presence had a soothing effect on him. According to X, his family included his mother and his maternal grandparents. The experts found that it was important that X should have stable residence arrangements; shared residence was not advisable at his age. At the same time, regular contact with the father was necessary for a balanced psychological development. Irregular contact with any of the parents would be detrimental to his relationship with that parent. 36. On 1 February 2016 M. and X moved to Moscow Region. 37. On 29 March 2016 the Nizhegorodskiy District Court found that the bailiffs service had not taken any actions to enforce the interim contact order of 29 September 2015 and ordered that the bailiffs service should redress the consequent breach of the first applicant’s rights. 38. It therefore ordered that M. consult the first applicant before taking any decisions concerning X’s medical treatment or education. It further determined the contact schedule as follows. The applicants should be able to have contact (i) on Saturdays and Sundays of even weeks, from 11 a.m. to 6 p.m. at X’s place of residence with the right to attend outdoor activities for children; (ii) for two weeks during the summer at the first applicant’s place of residence with the right to travel to other places within Russia. The schedule was valid until X’s seventh birthday and was to be revised afterwards. 39. On 8 July 2016 the Nizhegorodskiy District Court rejected the first applicant’s request for immediate enforcement of the contact order of 27 April 2016, finding that it did not belong to the category of cases where immediate enforcement was prescribed by law. There were no special circumstances justifying immediate enforcement, such as circumstances in which a delay in enforcement could lead to serious damage or make future enforcement impossible. 40. On 31 August 2016 the Petrogradskiy District Court of St Petersburg allowed an application for a contact order lodged by X’s paternal grandfather and grandaunt. It found that M. had been preventing them from seeing X. It held that they should have contact with X for five consecutive days every two months. In view of their advanced age and consequent inability to travel, contact should take place in St Petersburg where X should be brought either by M. or by the first applicant. 41. On 13 September 2016 M. was fined for hindering contact between the applicants in breach of the interim contact order of 29 September 2015. 42. On 14 September 2016 the Nizhegorodskyy District Court found that, despite its decision of 29 March 2016, the bailiffs service had still not taken any actions to enforce the interim contact order of 29 September 2015 and again ordered that the bailiffs should redress the first applicant’s rights. 43. On 25 October 2016 the Nizhniy Novgorod Regional Court upheld the contact order of 27 April 2016 on appeal. It amended the contact schedule, holding that in addition to the contact time determined by the District Court, the applicants should also have contact (i) from 3 to 7 p.m. on X’s birthday each year at X’s place of residence; (ii) on the first Wednesday and third Friday of each month from 3 to 7 p.m. at X’s place of residence; and (iii) for half an hour every day by means of Internet communications. 44. On 13 March 2017 a judge of the Nizhniy Novgorod Regional Court refused to refer the first applicant’s cassation appeal against the contact order of 27 April 2016, as upheld on appeal on 25 October 2016, to the Presidium of that court for examination, finding no significant violations of substantive or procedural law which had influenced the outcome of the proceedings. 45. On 4 April 2017 the St Petersburg City Court amended the contact order of 31 August 2016 on appeal, finding that the contact schedule was too onerous for X and M. It held that X’s paternal grandfather and grandaunt should be able to have contact with him for seven days every six months at the grandfather’s place of residence. 46. On 18 April 2017 a judge of the Supreme Court of the Russian Federation refused to refer the first applicant’s cassation appeal against the contact order of 27 April 2016, as upheld on appeal on 25 October 2016, to the Civil Chamber of the Supreme Court, finding no significant violations of substantive or procedural law which had influenced the outcome of the proceedings. 47. On 1 March 2018 the Zheleznodorozhniy Town Court of Moscow Region granted the first applicant the right to bring X to St Petersburg for ten additional days during the summer holidays. It also increased the time the applicants were to spend together on X’s birthdays. On 11 July 2018 the Moscow Regional Court quashed that judgment on appeal and rejected the first applicant’s request to amend the contact schedule, finding that the contact schedule established by the judgment of 27 April 2016 was valid until X’s seventh’s birthday and that there was no reason to change it before that date. 48. According to the Government, X now lives in Moscow Region with his mother. The first applicant is renting a flat in the vicinity of X’s new place of residence and regularly comes from St Petersburg to visit him. M. does not hinder the contact between the applicants. The first applicant pays child maintenance but does not give any other financial help. D. Action for compensation for the excessive length of the residence and contact proceedings 49. On 27 April 2015 the first applicant, acting on his own behalf and on behalf of the second applicant, lodged a claim with the Nizhniy Novgorod Regional Court seeking compensation for the non‑pecuniary damage sustained as a result of the excessively long examination of the child residence dispute, and costs and expenses. He submitted, in particular, that the nature of the dispute had called for particular expedition on the part of the domestic courts. Indeed, the case had concerned a residence dispute in respect of a very young child who, owing to the delay in examining the case, had unlawfully resided with his mother for almost two years. 50. On 8 May 2015 a judge of the Nizhniy Novgorod Regional Court declared the claim lodged on behalf of the second applicant inadmissible. The court found that the second applicant had not been a party to the residence proceedings and could not therefore claim compensation for their allegedly excessive length. 51. The first applicant appealed, submitting that the residence proceedings had directly affected the second applicant by determining his residence arrangements. The length of the residence proceedings had therefore breached the second applicant’s rights. 52. On 8 July 2015 the Administrative Chamber of the Nizhniy Novgorod Regional Court upheld the decision of 8 May 2015 on appeal, finding that it had been lawful, well-reasoned and justified. 53. On 9 July 2015 the Nizhniy Novgorod Regional Court awarded the first applicant 30,000 Russian roubles (RUB – about 475 euros (EUR)) for non‑pecuniary damage and RUB 12,886.40 for costs and expenses against the Ministry of Finance. The court noted that the proceedings had lasted one year, six months and seven days before two instances. It found that the first applicant had not contributed to the length of proceedings. It further held that the case had been simple, no expert opinions had been ordered nor witnesses questioned. There had been important delays in the proceedings attributable to the District Court, in particular excessively long intervals between hearings, adjournments caused by repeated failures to inform the parties of the dates of scheduled hearings and substantial delays in serving the reasoned judgment of 4 April 2014 and the hearing record on the parties and in forwarding the parties’ statements of appeal to the Regional Court. Accordingly, the first applicant’s case had not been heard within a “reasonable time”. When deciding on the amount of compensation, the Regional Court noted that the case had concerned a child residence dispute and that the delay in its examination had created legal uncertainty as to the child’s residence and had hindered the exercise by the first applicant of his contact rights. 54. On 19 August 2015 a judge of the Nizhniy Novgorod Regional Court refused to refer the first applicant’s cassation appeal against the decision of 8 May 2015, as upheld on appeal on 8 July 2015, to the Presidium of that court for examination, finding no significant violations of substantive or procedural law which had influenced the outcome of the proceedings. 55. On 30 September 2015 the Administrative Chamber of the Nizhniy Novgorod Regional Court upheld the judgment of 9 July 2015 on appeal, finding that it had been lawful, well-reasoned and justified. 56. On 27 November 2015 a judge of the Supreme Court of the Russian Federation refused to refer the first applicant’s cassation appeal against the decision of 8 May 2015, as upheld on appeal on 8 July 2015, to the Administrative Chamber of the Supreme Court, finding no significant violations of substantive or procedural law which had influenced the outcome of the proceedings. 57. On 5 July 2017 the Nizhniy Novgorod Regional Court awarded the applicants RUB 30,000 (about EUR 475) in respect of non‑pecuniary damage and RUB 11,398.34 for costs and expenses against the Ministry of Finance for the excessive length of the contact proceedings. The court found, in particular, that the delay in determining a definite contact schedule between the applicants had resulted in insufficient contact and had undermined their personal bond. II. RELEVANT DOMESTIC LAW 58. The Family Code provides that in the event of the parents’ separation, a child’s residence arrangements are determined by an agreement between them. If no such agreement can be reached, the child’s residence arrangements are determined by a court order, having regard to the child’s best interests and his or her opinion on the matter. In particular, the court must take into account the child’s attachment to each of the parents and siblings, the relationship between the child and each of the parents, the child’s age, the parents’ moral and other personal qualities and the possibilities each of them have for creating conditions for the child’s upbringing and development (in the light of such considerations as each parent’s occupation, employment schedule, and financial and family situation) (Article 65). 59. The parent residing separately from the child is entitled to maintain contact with the child and to participate in his or her upbringing and education. The parent with whom the child resides may not hinder the child’s contact with the other parent, unless such contact undermines the child’s physical or psychological health or moral development. The parents may reach a written agreement about the manner of exercise of parental authority by the parent residing separately from the child. If the parents are unable to come to an agreement, any dispute between them will be decided by a court after an application by the parents (or one of the parents), with the participation of the childcare authorities. If one of the parents does not comply with the court decision, measures provided by civil procedural law may be taken against him or her. If that parent systematically refuses to comply with the court decision, a court may, after an application by the parent residing separately from the child, transfer the child’s residence to that parent, taking into account the child’s interests and the child’s opinion (Article 66, as in force at the material time). 60. A child is entitled to maintain contact with his parents, grandparents, brothers, sisters and other relatives. The parents’ divorce or separation or the annulment of their marriage must have no bearing on the child’s rights. In particular, in the event of the parents residing separately, the child is entitled to maintain contact with both of them (Article 55 § 1). 61. A child is entitled to express his or her opinion on all family matters concerning him or her, including in the course of any judicial proceedings. The opinion of a child over ten years old must be taken into account, except where it is contrary to his or her interests (Article 57). 62. The Code of Civil Procedure provides that any time before the court issues its decision on the case the respondent may lodge a counterclaim which is to been examined simultaneously with the initial claim (Article 137). THE LAW I. SCOPE OF THE CASE 63. The Court notes that the applicants raised several new complaints under Articles 8 and 14 of the Convention in their reply to the Government’s observations. In particular, they complained that the contact schedule determined by the interim contact order had been discriminatory against the first applicant on grounds of sex and that there had been delays in the enforcement of the contact orders. 64. In the Court’s view, the new complaints raised by the applicants are not an elaboration of their original complaint lodged with the Court on 25 April 2016 and communicated to the Government on 13 September 2016. The Court will therefore not examine them (for a similar reasoning, see Nuray Şen v. Turkey (no. 2), no. 25354/94, § 200, 30 March 2004; Melnik v. Ukraine, no. 72286/01, §§ 61-63, 28 March 2006; Kopylov v. Russia, no. 3933/04, §§ 109-10, 29 July 2010; Antonyuk v. Russia, no. 47721/10, §§ 93-94, 1 August 2013; and Malinin v. Russia, no. 70135/14, §§ 52-53, 12 December 2017). II. ALLEGED ABUSE AND HINDRANCE OF THE RIGHT OF INDIVIDUAL APPLICATION AND ALLEGED FAILURE TO COOPERATE WITH THE COURT 65. The Government in their observations on admissibility and merits of the case requested that the Court declare the application inadmissible under Article 35 § 3 of the Convention as an abuse of the right of application on the grounds that the first applicant had concealed relevant information from the Court and had used offensive language in respect of the Representative of the Russian Federation to the European Court of Human Rights. 66. The applicants complained in reply that the fact that the Representative of the Russian Federation had concealed his close acquaintance with M.’s father and had distorted relevant facts had amounted to a lack of cooperation and a hindrance to the exercise of his right of individual petition under Article 34 of the Convention. The relevant Convention provisions read as follows: Article 34 “The Court may receive applications from any person ... claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” Article 35 “3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that: (a) the application is ... an abuse of the right of individual application; ...” Article 38 “The Court shall examine the case together with the representatives of the parties and, if need be, undertake an investigation, for the effective conduct of which the High Contracting Parties concerned shall furnish all necessary facilities.” A. Submissions by the parties 67. The Government submitted that the first applicant had abused his right of individual petition because he had not informed the Court of the contact orders that had been issued by the domestic courts and had not submitted a copy of the expert opinion of 19 January 2016, thereby presenting a one-sided version of the case. They argued that under Rule 47 § 7 of the Rules of Court the first applicant had an obligation to inform the Court of all circumstances relevant to the application, including about any important developments that had happened after the application had been lodged (they referred to the cases of Poznanski and Others v. Germany (dec.), no. 25101/05, 3 July 2007; Hadrabová and Others v. the Czech Republic (dec.), no. 42165/02, 25 September 2007; and Červeňáková v. the Czech Republic (dec.), no. 26852/09, 23 October 2012). 68. The applicants submitted at the outset that the thrust of their initial complaint had been granting the residence order to M.; they had not complained about the contact proceedings which were still pending when they submitted their observations. By concentrating excessively on the contact proceedings which were not the subject matter of the present application, the Government had attempted to distract attention from the residence-order proceedings to a side issue which, although relevant for the assessment of the main issue, could not supersede it. 69. The applicants further submitted that the contact order of 27 April 2016 had been issued after they had lodged their application with the Court and they could not therefore have enclosed it with their application form; they had however mentioned that there had been contact proceedings pending. The contact order had not become enforceable until 25 October 2016 and it was not still final when the applicants lodged their observations as the cassation appeal proceedings were still pending. The parties could not therefore rely on it in the proceedings before the Court. The applicants had however sent the interim contact order to the Court on 18 October 2016 and had mentioned in the same letter the existence of the contact order of 27 April 2016. Lastly, the expert opinion of 19 January 2016 was not directly relevant to the present application concerning the residence-order proceedings. Indeed, it had been made after the end of the residence-order proceedings in the framework of the pending contact proceedings. In any event, that expert opinion had confirmed that X had been very attached to his father. 70. The applicants also submitted that the Government’s former representative Mr Matyushkin was biased. According to the applicants, M.’s father was Mr Matyushkin’s personal aikido trainer and a close friend. They submitted a photograph featuring Mr Matyushkin and M.’s father together and claimed that it had been taken at M.’s father’s birthday party in 2009. By omitting to disclose his personal connection to the case, Mr Matyushkin had misled the Court; the observations submitted by him should not be accepted therefore (Rule 44D of the Rules of Court). Those observations contained personal gratuitous attacks on the first applicant and many distortions of the facts of the case. Thus, Mr Matyushkin had concealed relevant information and documents, in particular those showing that M. had not complied with the contact orders and that the domestic authorities had acknowledged the bailiffs’ failure to ensure her compliance. The applicants later stated that they no longer insisted on not accepting those observations as they had been endorsed by the Government’s new representative Mr Galperin – who had submitted the Government’s further observations where he had continued to conceal and distort the facts of the case. The applicants also argued that Mr Matyushkin’s behaviour should be interpreted as amounting to a failure to participate effectively in the case (Rule 44C of the Rules of Court) and therefore a hindrance of the effective exercise of the right of petition (Article 34 of the Convention). 71. The Government submitted in reply that Mr Matyushkin was indeed acquainted with M.’s father but denied a close friendship between them. According to Mr Matyushkin, from 2004 to 2006 he had attended an aikido club in Nizhny Novgorod where he had been trained by M.’s father. However, their relationship had never been a close one and had been completely interrupted after Mr Matyushkin had moved to Moscow in 2008. He however conceded that he might have attended M.’s father’s birthday party in 2009 out of courtesy rather than because of any friendly feelings. Mr Matyushkin affirmed that he was not biased against the first applicant and that the first applicant’s allegations of bias were therefore unsubstantiated, dishonest and offensive. The Government further submitted that Mr Matyushkin had been the representative of a party in the proceedings before the Court. His status was closer to that of a barrister rather than a judge; the requirements of impartiality imposed on judges were not therefore applicable to him. The Government also submitted that it had effectively participated in the proceedings by submitting observations on all questions asked by the Court; the observations had been based on the information provided by competent domestic authorities. The fact that Mr Matyushkin was acquainted with M.’s father did not amount to a hindrance of the right of petition. Lastly, the Government argued that the first applicant’s unsubstantiated accusations against Mr Matyushkin had amounted to an abuse of the right of individual petition (they referred to Apinis v. Latvia (dec.), no. 46549/06, 20 September 2011). B. The Court’s assessment 1. Alleged abuse of the right of application 72. The Court reiterates that under Article 35 § 3 of the Convention an application may be rejected as an abuse of the right of individual application if, among other reasons, it was knowingly based on untruths. The submission of incomplete and thus misleading information may also amount to an abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation has been provided for the failure to disclose that information. The same applies if new, important developments have occurred during the proceedings before the Court and where, despite being expressly required to do so by Rule 47 § 7 (former Rule 47 § 6) of the Rules of Court, the applicant has failed to disclose that information to the Court, thereby preventing it from ruling on the case in full knowledge of the facts. However, even in such cases, the applicant’s intention to mislead the Court must always be established with sufficient certainty (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014, with further references). 73. In the present case the applicants mentioned in their application form that the first applicant had applied for contact rights and that the proceedings were pending. On 18 October 2016 they submitted a copy of the interim contact order and informed the Court that the main contact order had been issued and appealed against. They then sent five more letters to the Court informing it of further developments in the case, including in the contact proceedings, and enclosing relevant documents. It is true that they did not submit a copy of the expert opinion of 19 January 2016 until after the Government had mentioned it in their observations on the admissibility and merits. That expert opinion however dealt with the issue of contact rather than the issue of residence and was made after the residence order complained of in the present case. It was indeed part of the contact proceedings case file, which was still under examination at the material time. The contact orders and the expert opinion are therefore only relevant in order to get a broader view of the development of the applicants’ case, but are not as such the subject of the instant application; nor are they essential for deciding the case. There is therefore no basis for finding that the applicants submitted incomplete information concerning the very core of the case or failed to inform the Court of important developments with the intention of misleading it. 74. The Court further reiterates that the use of particularly vexatious, insulting, threatening or provocative language by the applicant – whether this is directed against the respondent government, its Agent, the authorities of the respondent State, the Court itself, its judges, its Registry or members thereof – may be also considered an abuse of the right of petition within the meaning of Article 35 § 3 (a) of the Convention. However, it does not suffice that the applicant’s language is sharp, polemical or sarcastic; to be considered an abuse, it must exceed the limits of normal, civic and legitimate criticism. If after a warning by the Court the applicant ceases to use the contested expressions, expressly withdraws them or, better still, presents his or her excuses, the application may no longer be rejected as an abuse (see Miroļubovs and Others v. Latvia, no. 798/05, § 64, 15 September 2009, with further references). 75. In the present case the applicants informed the Court that the former Representative of the Russian Federation – who had submitted the Government’s observations on the admissibility and merits – was acquainted with M.’s father, which was confirmed by the Government. The applicants then expressed their doubts as to the Representative’s ability in such circumstances to act without bias against the first applicant. Those doubts were however expressed in a neutral form. The applicants did not use any vexatious, insulting, threatening or provocative language against the respondent State or its Agent. The applicants’ allegations did not therefore in the circumstances of the present case amount to an abuse of the right of petition within the meaning of Article 35 § 3 (a) of the Convention. 76. Accordingly, there is no basis for finding that the applicants abused their right of individual petition in the present case. In view of the foregoing considerations, the Court rejects the Government’s request for the application to be declared inadmissible under Article 35 § 3 of the Convention as an abuse of the right of application. 2. Alleged lack of cooperation and hindrance of the right of individual application 77. The Court reiterates that by virtue of Article 34 of the Convention Contracting States undertake to refrain from any act or omission that may hinder the effective exercise of an individual applicant’s right of application. There is no indication in the present case that there has been any hindrance of the applicants’ right to individual petition, either in the form of interference with the communication between the applicants and the Court, or in the form of undue pressure placed on the applicants. 78. The alleged failure to submit relevant information and documents does not raise an issue under Article 34 (see Öcalan v. Turkey [GC], no. 46221/99, § 201, ECHR 2005‑IV, and Baysayeva v. Russia, no. 74237/01, § 168, 5 April 2007). Article 34 is a lex generalis in relation to Article 38, which specifically obliges States to cooperate with the Court, and in particular to submit information which is crucial to the establishment of facts (see Baysayeva, cited above, §§ 161-64 and 168). In so far as the applicants’ allegations may be interpreted in substance as a complaint that the Government failed to comply with their obligations under Article 38 of the Convention, the Court notes that the Government submitted all information and documents that were relevant for a proper and effective examination of the application. 79. Having regard to the above, the Court is not persuaded that there is sufficient basis on which to find any hindrance of the right of individual petition in the present case or any failure to cooperate with the Court. Accordingly, the respondent State has not breached its obligations under Articles 34 or 38 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 80. The applicants complained that the granting of a residence order in respect of the second applicant in favour of his mother had violated their right to respect for their family life. They relied on Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 81. As regards the applicants’ complaint that the allegedly excessive length of the residence-order proceedings had resulted in the de facto determination of the issue, the Government submitted that the first applicant had been awarded compensation for the delays in the proceedings. His rights had therefore been redressed at the national level. 82. The Court considers that the question of whether the applicants may still claim to be victims of a violation of Article 8 of the Convention in respect of the alleged length of the residence-order proceedings is closely linked to the merits of the complaint under Article 8 of the Convention. The Court therefore decides to join this matter to the merits. 83. The Government did not contest that the first applicant had standing to lodge an application on behalf of his minor son. Given that the first applicant has parental authority in respect of X, the Court finds that he has standing to act on his son’s behalf (compare Diamante and Pelliccioni v. San Marino, no. 32250/08, § 147, 27 September 2011, and Z. v. Slovenia, no. 43155/05, § 116, 30 November 2010; and compare and contrast Eberhard and M. v. Slovenia, nos. 8673/05 and 9733/05, §§ 88-90, 1 December 2009 (with further references), and K.B. and Others v. Croatia, no. 36216/13, §§ 109-10, 14 March 2017). 84. 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. Submissions by the parties (a) The Government 85. The Government submitted that the decision to issue the residence order in favour of the mother had been lawful and had been based on the best interests of the child. They argued that it would be cruel to separate a very young child from his or her mother, especially if the mother were breastfeeding (they referred to the cases of P., C. and S. v. the United Kingdom, no. 56547/00, ECHR 2002‑VI, and Haase v. Germany, no. 11057/02, ECHR 2004‑III (extracts), both concerning the taking of newborn babies into public care). In the present case there had been no exceptional circumstances justifying the separation of X from his mother. Indeed, the mother’s living conditions had been suitable for a small child. She had been on parental leave, had devoted all her time to caring for X and, according to her own statement, had still been breastfeeding him. Her parents had been helping her in raising the child and the first applicant had been paying child maintenance. 86. The Government further submitted that before taking their decision the domestic courts had conducted an in-depth examination of the entire family situation and of a whole series of factors, in particular of a factual, emotional, psychological, material and medical nature, and made a balanced and reasonable assessment of the respective interests of each person concerned. Taking into account the child’s age and the opinion of the childcare authority, the domestic courts had decided that it would be in his best interests to live with the mother. The courts had taken into account that the first applicant’s income had been high enough to permit regular travel to visit his son. The courts had considered irrelevant the fact that St Petersburg had been less polluted, had had a lower crime rate and had had better infrastructure for children, finding that the child had had to live with the mother, who had chosen to live in Nizhny Novgorod. 87. The Government also submitted that M. had not committed any unlawful acts when she had moved with her son to Nizhny Novgorod. She had not been obliged to live with the first applicant pending the divorce proceedings. She had moved into her own flat, the address of which had been known to the first applicant; she had not therefore gone into hiding with the boy, nor had she left Russia. She had not disobeyed any judicial residence order, as no such order had been issued or any judicial proceedings had been pending at the time when she had moved out. She had therefore been free to live with her child where she had wished. The present case was therefore different from the case of Hromadka and Hromadkova v. Russia (no. 22909/10, December 2014), which had concerned international abduction of a child who should have been resident in the Czech Republic with her father pursuant to a court order. The present case was similar to the case of Petersen v. Germany ((dec.), nos. 38282/97 and 68891/01, 12 January 2006), where the Court had found that it had been in the child’s best interests to stay with his mother, who could not be prevented from moving abroad. The Government argued that in the present case too a prohibition on moving to another town would have violated M.’s freedom of movement guaranteed by Article 2 of Protocol No. 4 to the Convention. The first applicant could not have prohibited his son from moving outside St Petersburg as M. had been entitled to change residence in order to arrange her private and family life, to find work or to secure a promotion. 88. As regards the length of proceedings, the Government submitted that they had lasted for one year, six months and seven days. The length of the proceedings had therefore been shorter than in the cases examined by the Court (they referred to Ribić v. Croatia, no. 27148/12, 2 April 2015, where the proceedings had lasted for seven years and eight months; Mihailova v. Bulgaria, no. 35978/02, 12 January 2006, where the proceedings had lasted for about two years and a half and where the Court had found no violation of Article 8; and Diamante and Pelliccioni, cited above, where the proceedings had lasted for more than four years and ten months and where the decision had still been pending). In any event, it could not be said that the passage of time had resulted in a de facto determination of the matter, as by the end of the proceedings the second applicant had been only two years, nine months and twenty-one days old. 89. Furthermore, the Government submitted that contact between the applicants had been maintained all the time as M. had never seriously hindered contact between them or between the second applicant and his paternal grandparents. The childcare authorities had talked to M. several times and had explained to her that X had been entitled to maintain contact with his father, his paternal grandparents and other relatives. The domestic courts had moreover issued an interim order granting the first applicant contact rights pending the main contact proceedings. Enforcement proceedings had been instituted during which it had been revealed that M. had moved to Moscow Region. A new contact order had been subsequently made, taking account of an expert opinion on the second applicant’s relationship with each of his parents. A separate contact order had been made in respect of X’s paternal grandfather and grandaunt. M. had been fined for failure to comply with the contact orders. The authorities had therefore complied with their obligation to ensure that contact between X and his father and paternal relatives be maintained. 90. Lastly, the Government submitted that the first applicant had been able to present his case fully before the domestic courts. He had attended all hearings and been able to present evidence and make submissions. The St Petersburg and Nizhniy Novgorod childcare authorities had participated in the proceedings and had been asked to submit their opinions on the case. The domestic courts had examined both opinions and had decided to follow the opinion of the Nizhniy Novgorod childcare authorities. The first applicant had been able to contest that opinion. The domestic courts had also taken into account the opinion of the psychologist L., whom the applicant and M. had consulted before their separation. The first applicant’s request for a psychological expert examination had been rejected because the domestic courts had considered that they had already had sufficient material for making a decision on the case (in particular, opinions by the childcare authorities and by a psychologist). There had been no evidence in the case file that X had been attached to his father. In the Government’s opinion, the present case was similar to the case of Drenk v. the Czech Republic (no. 1071/12, 4 September 2014), where the Court had found that the domestic courts’ refusal to follow outdated expert recommendations or to order a new expert examination on the grounds that they had sufficient recent relevant information had not violated the procedural requirements of Article 8. In any event, it was for the domestic courts to assess the evidence before them. The Government further submitted that X had not been personally interviewed by the courts because in accordance with domestic law only the opinion of a child over ten years old had had to be taken into account (see paragraph 61 above). X had been less than two years old when the case had been examined by the District Court and less than three years old at the time of the appeal hearing; it had therefore been impossible to interview him in court. (b) The applicants 91. The applicants submitted that the domestic courts had not provided relevant and sufficient reasons for their decision to grant the residence order in respect of X to the mother. The decision had been based on a widespread presumption that a child under ten years old should live with his or her mother. Given that the young child’s age had outweighed all other factors, the domestic courts had not considered it necessary to examine them. By holding that the first applicant’s arguments concerning better living conditions in St Petersburg – in particular, less air pollution, lower criminal rate and better infrastructure for child development – had been irrelevant, the domestic courts had failed to conduct an in-depth examination of the entire family situation and of all relevant factors. 92. Nor had the domestic authorities taken into account the fact that M. had unlawfully removed X from his place of residence unbeknownst to the first applicant. In such circumstances Article 8 required the domestic authorities to take measures with a view to reuniting the applicants. In cases where one parent had taken a child away, the presumption had been in favour of the prompt return of the child to the “left-behind” parent (they referred to Hromadka and Hromadkova (cited above, §§ 148-52)). In the applicants’ opinion, it was irrelevant that in the present case, in contrast to Hromadka and Hromadkova, there had been no divorce or residence-order proceedings pending yet, or that M. had remained in Russia and had not removed X abroad. The only relevant circumstance was that M. had taken X away from his lawful place of residence against the first applicant’s will. By doing this, M. had obtained an advantage over the first applicant: by becoming a de facto resident parent, she had been able to have the residence order dispute examined by the courts of Nizhniy Novgorod Region, which was far away from the applicants’ place of residence. The applicants argued that M. had not been entitled to take a unilateral decision as to X’s place of residence pending the residence-order proceedings; that decision had to be taken by the parents together or, in the event of a dispute, by a court through an interim order. The domestic authorities had not however taken any measures to return X to his lawful place of residence; indeed Russian law did not provide for any legal mechanism to deal with situations where one of the parents removed a child from his or her lawful place of residence without the other parent’s consent. By taking X from St Petersburg to Nizhniy Novgorod, more than 1,000 kilometres away (that is a distance comparable to the distance between Paris and Berlin, Madrid or Prague and considerably longer than the distance between Paris and London, Berlin and Vienna or Vienna and Prague), M. had acted contrary to X’s interests as she had separated him from his father. The first applicant had moreover had to spend a lot of money on travel expenses to visit his son, although that money could have been better spend on X’s material and educational needs. 93. The applicants claimed that the Government’s observations gave the impression that Russian authorities had considered the child to be the mother’s property. Thus, they had put considerable emphasis on the mother’s freedom of movement and her right to take the child with her wherever she had gone, irrespective of the child’s best interests. The Court had however found in Maumousseau and Washington, cited above, that a minor had had the right not to be removed from one of his or her parents and retained by the other. M. had been indeed free to move to Nizhniy Novgorod or anywhere else; her freedom of movement had not however given her any right to take X with her without the first applicant’s consent. 94. The applicants also submitted that M. had also acted contrary to X’s interests by hindering contact between the applicants, and in particular by occasionally taking X away for long periods of time without informing the first applicant about his whereabouts. The domestic authorities had not taken any measures to stop her unlawful behaviour except fining her once. Nor had they taken her unlawful behaviour and her failure to act according to X’s interests into account when deciding on the residence order (contrast Diamante and Pelliccioni, cited above, §§ 22, 28, 38, 50 and 77). M. had continued to hinder contact between the applicants even after the contact orders had been issued. She had moreover moved to Moscow in September 2015, leaving X in Nizhniy Novgorod with his grandmother in breach of the residence order according to which X had had to live with the mother. As a result, X had lived separately from both parents for more than four months because M. had given preference to her career over the child’s interests. By contrast, the first applicant would have been able to spend a lot of time with X because he had not been in employment and had had a flexible schedule for his social‑volunteer activities. He had moreover offered to create conditions under which X could live near both parents, in particular by donating a flat in St Petersburg to M. He had therefore never intended to separate X from his mother; on the contrary, he had wanted him to be brought up by both parents equally. 95. The applicants submitted that the present case was different from the case of Petersen (cited above) on which the Government relied (see paragraph 87 above) and which had concerned contact rights rather than a residence order. In the Petersen case the child had not wished to see his father because of his behaviour. The contact between them had been therefore found to be detrimental to the child’s interests. In the present case, by contrast, X had been very attached to his father, which an expert examination would have shown had the domestic courts allowed the first applicant’s application in that connection. 96. Furthermore, the applicants submitted that the domestic courts’ procedural approach had not permitted the first applicant to put forward all his arguments. Firstly, the domestic courts had refused to examine the first applicant’s application for a residence order for no valid reason. Secondly, they had rejected his request for a psychological examination to determine X’s relationship with each of his parents. Given X’s young age, a psychological expert examination would have been the only way to have him “heard”, in order to assess his attachment to each of the parents. The opinion of the psychologist L., to whom the Government had referred (see paragraph 90 above), had not been cited by the domestic courts in their decisions. Her qualifications had never been checked and she had been moreover subsequently dismissed from her job for unethical behaviour. As regards the opinion of the Nizhniy Novgorod childcare authorities, it had not been made by a psychologist and had not assessed X’s relationship with his parents, referring to his age as the only grounds for the finding that it had been in X’s interest to live with his mother. Thirdly, the domestic courts had also rejected the first applicant’s application to include in the file X’s medical records showing that M. had no longer been breastfeeding him. They had moreover refused to hear submissions from X’s paternal grandparents about M.’s hindering X’s contact with his paternal relatives. Nor had they taken into account the opinion of the St Petersburg childcare authorities that it would be in X’s best interest to live in St Petersburg with the father. 97. Lastly, as regards the length of the proceedings, the applicants submitted that the domestic courts had acknowledged the delays in the residence-order proceedings and that the first applicant had not in any way contributed to them. Given that while the proceedings had been pending X had been unlawfully retained by his mother far from his father and his usual place of residence, it had been particularly important that the domestic authorities had exercised exceptional diligence when dealing with the case in view of the risk that the passage of time could have resulted in the de facto determination of the matter. Indeed, the appellate court had found that granting a residence order to the father had not been in X’s interest because he had been brought up by his mother after the parents’ separation. The mother had therefore benefited from her unlawful actions in taking X away and from the delays in the residence-order proceedings. 2. The Court’s assessment (a) General principles 98. In determining whether the refusal of custody or access was justified under Article 8 § 2 of the Convention, the Court has to consider whether, in the light of the case as a whole, the reasons adduced to justify this measure were relevant and sufficient. Undoubtedly, consideration of what lies in the best interests of the child is of crucial importance in every case of this kind. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. It follows from these considerations that the Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding child custody and access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their (see Sahin v. Germany [GC], no. 30943/96, § 64, ECHR 2003‑VIII; Sommerfeld v. Germany [GC], no. 31871/96, § 62, ECHR 2003‑VIII (extracts); C. v. Finland, no. 18249/02, § 52, 9 May 2006; and Z.J. v. Lithuania, no. 60092/12, § 96, 29 April 2014). To that end the Court must ascertain whether the domestic courts conducted an in-depth examination of the entire family situation and of a whole series of factors, in particular of a factual, emotional, psychological, material and medical nature, and made a balanced and reasonable assessment of the respective interests of each person, with a constant concern for determining what the best solution would be for the child (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 139, ECHR 2010, and Antonyuk v. Russia, cited above, § 134). 99. The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake. Thus, the Court has recognised that the authorities enjoy a wide margin of appreciation, in particular when deciding on custody. However, stricter scrutiny is called for as regards any further limitations, such as restrictions placed by those authorities on parental rights of access, and as regards any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between a young child and one or both parents would be effectively curtailed (see Sahin, cited above, § 65, and Sommerfeld, cited above, § 63). 100. Article 8 requires that the domestic authorities should strike a fair balance between the interests of the child and those of the parents and that, in the balancing process, particular importance should be attached to the best interests of the child, which, depending on their nature and seriousness, may override those of the parents. In particular, a parent cannot be entitled under Article 8 to have such measures taken as would harm the child’s health and development (see Sahin, cited above, § 66, and Sommerfeld, cited above, § 64). 101. The Court cannot satisfactorily assess whether the reasons advanced by the domestic courts were “sufficient” for the purposes of Article 8 § 2 without at the same time determining whether the decision‑making process, seen as a whole, was fair (see Sahin, cited above, § 68, and Sommerfeld, cited above, § 66). While Article 8 of the Convention contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to ensure due respect for the interests safeguarded by Article 8. The Court must therefore determine whether, having regard to the circumstances of the case and notably the importance of the decisions to be taken, the applicant has been involved in the decision-making process to a degree sufficient to provide him with the requisite protection of his interests (see Z.J. v. Lithuania, cited above, § 100, with further references). 102. Lastly, the Court considers that in conducting its review in the context of Article 8 it may also have regard to the length of the local authority’s decision-making process and of any related judicial proceedings. In cases of this kind there is always the danger that any procedural delay will result in the de facto determination of the issue submitted to the court before it has held its hearing. And an effective respect for family life requires that future relations between parent and child be determined solely in the light of all relevant considerations and not by the mere passage of time (see W. v. the United Kingdom, 8 July 1987, § 65, Series A no. 121; Sylvester v. Austria, nos. 36812/97 and 40104/98, § 69, 24 April 2003; and Z.J. v. Lithuania, cited above, § 100). (b) Application to the present case 103. The Court considers that the decision to make a residence order in favour of the mother amounted to an interference with the applicants’ right to respect for their family life (see Antonyuk, cited above, § 119; see also G.B. v. Lithuania, no. 36137/13, § 87, 19 January 2016). It has not been disputed between the parties that the interference had a basis in national law and pursued the legitimate aim of protecting the rights of others, namely of X and M. It remains to be examined whether the interference was “necessary in a democratic society”. 104. Before turning to the analysis of the reasons advanced by the domestic courts, it is important to note that the scope of the order was limited to determining where X would live; it did not affect the legal relationship between the applicants, and nor did it take away the first applicant’s parental authority. It is also significant that the first applicant was subsequently granted contact rights. 105. The Court accepts that in reaching decisions on childcare measures, national authorities and courts are often faced with a task that is extremely difficult. It does not lose sight of the fact that the national authorities had no other choice but to make a residence order in favour of one of the two separated parents, as the domestic law does not provide for the possibility to make a shared residence order (see Antonyuk, cited above, § 121). 106. It is not the Court’s task to take the place of the domestic authorities in deciding in whose favour a residence order should be given in respect of a child of divorced parents. However, in this sphere, the Court’s review is not limited to ascertaining whether a respondent State exercised its discretion reasonably, carefully and in good faith; it must determine whether the reasons adduced by the domestic courts in child residence proceedings were relevant and sufficient. In particular, the Court has competence to ascertain whether the domestic courts, when taking such a decision, conducted an in‑depth examination of the entire family situation and a whole series of relevant factors and made a balanced and reasonable assessment of the respective interests of each person, with a constant concern for determining what the best solution would be for the child (see the case-law cited in paragraph 98 above). A failure to make a sufficiently thorough examination will amount to a violation of Article 8. By contrast, if the domestic courts examined the question at issue with care and in line with the principles laid down by the Court’s case-law, the Court would require very strong reasons to substitute its own assessment for that of the domestic courts (see Elita Magomadova v. Russia, no. 77546/14, § 63, 10 April 2018, with further references). 107. In line with the principles and case-law outlined above, the Court will therefore examine whether the domestic authorities in the present case made an in-depth examination of the entire family situation and of all relevant factors. 108. The Court will first examine the applicants’ argument that no expert or other specialist assessment had been performed to establish X’s attachment to each of the parents, and that X had not been therefore duly “heard” on the issue of his residence. The Court reiterates that children are entitled to be consulted and heard on matters affecting them. In particular, as children mature and, with the passage of time, become able to formulate their own opinions, the courts should give due weight to their views and feelings as well as to their right to respect for their private life (see N.Ts. and Others v. Georgia, no. 71776/12, § 72, 2 February 2016). The situation is different with very young children who are still unable to form or express their wishes. The Court has found in the case of Sahin (cited above, §§ 72-75) that it had been acceptable not to interview a five-year-old child in court, having due regard to her age and maturity. When reaching that finding, the Court took into account that an expert had been appointed who had met the child and both parents on several occasions and had analysed the child’s attitude to both parents, as well as whether it had been possible to have her heard in court. In the present case, by contrast, no expert opinion was ever sought on such important questions as X’s relationship with each of his parents, each parent’s parenting abilities or whether it was possible, given his age and maturity, to interview him in court, if need be with the assistance of a specialist in child psychology. 109. The Court is not convinced that in this particular case the opinion given by the childcare authorities could have replaced an expert assessment in the circumstances of the present case. There is no evidence in the case file that the specialists of the Nizhniy Novgorod childcare authorities, on whose opinion the courts relied, ever met X and assessed his attitude to each parent. Indeed, their report was limited to assessing M.’s living conditions and financial situation and to stating that M. was on parental leave and breastfeeding (see paragraph 21 above). Moreover, the case file also contained an opinion by the St Petersburg childcare authorities which found that it was in X’s best interests to live with his father (see paragraph 20 above). The domestic courts did not explain why they preferred the opinion of the Nizhniy Novgorod childcare authorities to that of the St Petersburg childcare authorities. 110. The Government also referred to the opinion by the psychologist L. (see paragraph 13 above). However, the domestic courts did not rely on that opinion in their decisions. In any event, that opinion was made on the basis of a single consultation prior to the parents’ separation. That consultation concerned difficulties in the marital relationship between the first applicant and M. rather than their relationship with X. The court is therefore not convinced that it could have replaced an expert examination devoted specifically to the issue of child residence and consequently to establishing X’s attachment to each of his parents and their parenting abilities. 111. The Court further notes that the domestic courts refused to take into account items of evidence advanced by the applicant in support of his position. Firstly, the domestic courts refused to examine his application for a residence order in his favour and the arguments raised therein on the grounds that it had been submitted too late (see paragraph 16 above), although under domestic law a counterclaim could have been submitted at any moment before the court issued its decision (see paragraph 62 above). Secondly, the domestic courts refused to admit in evidence and examine X’s medical records from which it was apparent that the breastfeeding had stopped. Nor did the appeal court reply to the first applicant’s argument, supported by documentary evidence, that M. was no longer on parental leave and had resumed work. Thirdly, the domestic courts rejected the first applicant’s arguments – supported by the St Petersburg childcare authorities – relating to better living conditions and better opportunities for child development in St Petersburg, without an assessment on the merits as irrelevant. 112. From the information considered above, the Court concludes that the domestic courts’ examination of the case was not sufficiently thorough. It follows that the decision-making process was deficient and did not therefore allow the best interests of the child to be established. By not adhering to the principles of proportionality and effectiveness, the authorities did not fulfil their duty to secure the practical and effective protection of the applicants’ rights as is required by Articles 1 and 8 of the Convention. The Court accordingly finds that the domestic authorities did not adduce relevant and sufficient reasons for their decision to make a residence order in favour of the child’s mother (compare and contrast Leonov v. Russia, no. 77180/11, §§ 69-76, 10 April 2018, and Malinin, cited above, §§ 67-78). 113. In those circumstances it is not necessary to examine whether the alleged delays in the residence-order proceedings resulted in the de facto determination of the case. Nor is it therefore necessary to examine the Government’s objection relating to the loss of a victim status in respect of that aspect of the complaint under Article 8. 114. The Court finds that notwithstanding the domestic authorities’ margin of appreciation, the interference was not proportionate to the legitimate aim pursued. There has therefore been a violation of Article 8 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 115. The first applicant further complained that the decision to grant a residence order in respect of the second applicant in favour of his mother amounted to discrimination on grounds of sex. He relied on Article 14 of the Convention, taken in conjunction with Article 8. Article 14 reads 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.” A. Submissions by the parties 1. The first applicant 116. The first applicant submitted that X’s young age had been the only reason for granting a residence order to the mother. He claimed that in so far as residence orders in respect of children under ten years old were concerned, there existed an assumption in favour of mothers which was very difficult to rebut. That assumption was based on gender stereotypes which prevailed in Russia, in particular the perception of women as primary carers and men as primary breadwinners. He relied on an analytical note of 23 March 2017 by the Institute for Law and Public Politics, an NGO, which showed that residence orders in respect of children of all ages were granted to the mother in 71.43% of cases and to the father in 28.57% of cases; while residence orders in respect of young children were given to the mother in 97.22% of cases. The first applicant further submitted that the analysis of case-law produced by the Government (see paragraph 98 below) also showed that a residence order was given to the father in exceptional circumstances only, in particular where the mother had negative character references. Fathers and mothers were treated equally only in respect of children older than ten years – the age starting from which the courts had to take the child’s opinion into account. 117. The first applicant argued that as far as the role of taking care of the child during the period corresponding to parental leave – that is to say on expiry of the period of maternity leave, which was intended to enable the woman to recover from childbirth and to breastfeed her baby if she so wished – was concerned, men and women were “similarly placed” (see Konstantin Markin v. Russia, no. 30078/06, § 132, 7 October 2010). 2. The Government 118. The Government submitted that the decision to grant a residence order in respect of the second applicant in favour of the mother had been based on the best interests of the child. There had therefore been no discrimination. The Government referred to the case of Tiemann v. France and Germany ((dec.), nos. 47457/99 and 47458/99, 27 April 2000) where the decisions to grant a residence order to the mother had been found to be in the bests interests of the children and therefore compatible with Article 8 of the Convention. Like in Tiemann, the first applicant in the present case had been trying to separate the second applicant from his mother. In such circumstances the domestic courts had achieved a balance between the interests of the first applicant, the second applicant and M., in particular by granting the first applicant contact rights. Despite the fact that the second applicant lived in another town, the first applicant could still visit him and maintain contact by other means. 119. The Government also referred to the case of Guichard v. France ((dec.), no. 56838/00, 2 September 2003) where the removal of the child by the mother had not been considered to be “wrongful” within the meaning of the Hague Convention on the Civil Aspects of International Child Abduction and where the Court had found that Article 8 of the Convention had not therefore imposed positive obligations on the French authorities to secure the return of the child. 120. Lastly, the Government submitted that both parents had equal rights under Russian law; the mother had not been entitled to any preferential treatment. When deciding on a residence order, the courts had to take into account the child’s attachment to each of the parents and siblings, the relationship between the child and each of the parents, the child’s age, the parents’ moral and other personal qualities and the possibilities each of them had for creating conditions for the child’s upbringing and development (in the light of such considerations as each parent’s occupation, employment schedule, and financial and family situation) (see paragraph 58 above). There were many examples in domestic practice of a residence order being granted in favour of the father. The Government produced copies of eleven judgments granting a residence order in favour of the father, of which three concerned children under five years old. The Government argued that those cases showed that the practice of the domestic courts was not discriminatory. B. The Court’s assessment 1. Admissibility 121. As the Court has consistently held, Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded thereby. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of them. The prohibition of discrimination enshrined in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and the Protocols thereto require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Convention Article, for which the State has voluntarily decided to provide. This principle is well entrenched in the Court’s case-law (see, among many other authorities, E.B. v. France [GC], no. 43546/02, §§ 47-48, 22 January 2008). 122. It has not been disputed between the parties that the case falls within the ambit of Article 8 of the Convention. Indeed, the Court has found that the contested decisions amounted to an interference with the applicants’ right to respect for their family life (see paragraph 103 above). It follows that Article 14 of the Convention, taken in conjunction with Article 8, is applicable in the present case 123. 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. 2. Merits 124. It is the Court’s established case-law that in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in relevantly similar situations. Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background, but the final decision as to the observance of the Convention’s requirements rests with the Court (see Burden v. the United Kingdom [GC], no. 13378/05, § 60, and Konstantin Markin v. Russia [GC], no. 30078/06, §§ 125 and 126, ECHR 2012 (extracts)). 125. Very weighty reasons need to be put forward before a difference in treatment on the grounds of sex can be regarded as compatible with the Convention (see Schuler-Zgraggen v. Switzerland, 24 June 1993, § 67, Series A no. 263; Zaunegger v. Germany, no. 22028/04, § 51, 3 December 2009; and Buchs v. Switzerland, no. 9929/12, § 67, 27 May 2014). 126. In the case at hand, the first applicant complained that he had been discriminated against on account of his sex, in breach of Article 14 of the Convention taken in conjunction with Article 8, in that the residence order in respect of the second applicant had been made in favour of his mother. 127. The Court observes at the outset that Russian law does not make any distinction between the sexes, both men and women being equally eligible to obtain a residence order in respect of their child, irrespective of the child’s age. The domestic courts must evaluate all the relevant circumstances and the parties’ parenting abilities in order to find the most appropriate solution in the child’s best interests (see paragraph 58 above). The first applicant, however, argued that the decisions in his case had been based on a general assumption prevailing in Russia that it was in the interest of children under a certain age to reside with the mother rather than the father. 128. The Court notes that the residence order was based on an assessment of the best interests of the child in the particular circumstances of the case, rather than on a general assumption in favour of mothers. In particular, the domestic courts found that M. was on parental leave and was still breastfeeding the second applicant. They considered that, given X’s young age and the fact that after the parents’ separation he had been brought up by the mother, it would be in his best interest to remain living with her. 129. The Court is therefore satisfied that, as regards the examination of the application for a residence order, no difference of treatment on account of sex existed either in the law or in the decisions applying it in the applicant’s case. 130. There has accordingly been no violation of Article 14 of the Convention, taken together with Article 8. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 131. 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 132. The applicants claimed just satisfaction in respect of non‑pecuniary damage. They left the amount to the determination of the Court 133. The Government submitted that the finding of a violation would constitute sufficient just satisfaction. The applicants had already received compensation for the delays in the residence-order proceedings. 134. The Court awards the applicant 12,500 euros (EUR) in respect of non‑pecuniary damage, plus any tax that may be chargeable. B. Costs and expenses 135. The first applicant also claimed EUR 602 for the costs and expenses incurred before the domestic courts, in particular travel and postal expenses, and EUR 1,205 for legal consultation fees, stationery, postal and translation expenses incurred before the Court. He submitted payment invoices covering all the expenses mentioned above. 136. The Government submitted that the first applicant had not submitted a copy of the legal-fees agreement; there was therefore no evidence that he was under a legal obligation to pay legal fees. As regards the legal costs incurred before the domestic courts, the Government submitted that no compensation could be awarded for costs and expenses which would have been incurred irrespective of whether the proceedings in issue had violated the Convention (they referred to P., C. and S. v. the United Kingdom, cited above). They added that the stationery expenses were not relevant to the subject-matter of the case. Lastly, they admitted that postal and translation costs in the amount of EUR 415 should be reimbursed. 137. 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, the Court has found that that the domestic courts’ examination of the child residence case was not sufficiently thorough and the decision-making process was deficient. There is no causal link between these violations and the costs claimed for attending and preparing for the domestic proceedings, in which the applicants would have participated in any event (compare P., C. and S. v. the United Kingdom, cited above, § 148). The Court therefore rejects the claim for costs and expenses in the domestic proceedings. 138. As regards costs and expenses for the proceedings before the Court, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the first applicant the sum of EUR 1,000. C. Default interest 139. 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 1. Decides, unanimously, to join to the merits the respondent Government’s objection concerning the loss of the victim status in respect of the allegedly excessive length of the residence-order proceedings, and declares the application admissible; 2. Holds, unanimously, that the respondent State has not failed to comply with its obligations under Articles 34 and 38 of the Convention; 3. Holds, by four votes to three, that there has been a violation of Article 8 of the Convention; 4. Holds, unanimously, that there has been no violation of Article 14 of the Convention; 5. Holds, by four votes to three, (a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 12,500 (twelve thousand five hundred euros) to both applicants jointly, plus any tax that may be chargeable, in respect of non-pecuniary damage, to both applicants jointly; (ii) EUR 1,000 (one thousand euros) to the first applicant, plus any tax that may be chargeable to the first applicant, 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; 6. Dismisses, unanimously, the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 23 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıVincent A. De GaetanoDeputy RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Dedov, Lubarda and Poláčková is annexed to this judgment. V.D.G.F.A. JOINT DISSENTING OPINION OF JUDGES DEDOV, LUBARDA AND POLÁČKOVÁ 1. We regret that we cannot agree with the conclusion of the majority regarding a violation of Article 8 of the Convention in the present case. We believe that the analysis made by the majority is contrary to the Court’s established case-law, and more specifically to its conclusion in the recent, identical case of Leonov v. Russia (no. 77180/11, 10 April 2018). We are of the view that in the present case, as in Leonov, the decision at the domestic level was reached following adversarial proceedings in which the applicant was placed in a position enabling him to put forward all arguments in support of his application for a residence order in his favour, and in which he also had access to all relevant information that was relied on by the courts. Therefore, the decision-making process was fair in so far as it allowed the applicant to present his case fully and the reasons advanced by the domestic courts were relevant and sufficient. Accordingly, by making a residence order in favour of the mother, the domestic courts did not overstep their wide margin of appreciation (see paragraphs 74 and 76 of the Leonov judgment). 2. In particular, having examined the impugned decisions of the domestic courts (see paragraphs 22 and 25 of the present judgment), we find no reason to doubt that they were based on the best interests of the child. The domestic courts established that M. was on parental leave and was still breastfeeding the second applicant. They considered that, given the second applicant’s young age and the fact that after his parents’ separation he had been brought up by his mother, it would be in his best interests to remain living with her. There is nothing to indicate that the findings reached by the domestic courts, which had the benefit of direct contact with all the persons concerned, were unreasonable and thus fell outside their wide margin of appreciation. Given that the national authorities are in principle better placed than an international judge to evaluate the evidence before them, it is not the Court’s task to take their place in establishing and assessing the facts and deciding what is in the best interests of the child in the present case (see, for similar reasoning, Leonov, cited above, § 72). 3. As regards the issues of hearing the child in court and obtaining an expert opinion on his relationship with each of the parents, the Court observes that, as a general rule, it is for the national courts to assess the evidence before them, including the means of ascertaining the relevant facts. It would be going too far to say that the domestic courts are always required to interview a child in court or involve a psychological expert in issues concerning a child’s residence, but this issue depends on the specific circumstances of each case, having due regard to the age and maturity of the child concerned (see Sommerfeld v. Germany [GC], no. 31871/96, § 71, ECHR 2003‑VIII, and Sahin v. Germany [GC], no. 30943/96, § 73, ECHR 2003‑VIII, both cited in the judgment). 4. Although the domestic authorities decided that a psychological expert opinion was not necessary (see paragraph 17 of the judgment), they referred to the childcare authorities’ opinion, issued after a visit to M.’s place of residence, and also examined the opinion of a psychologist who had seen the family before the separation (see paragraphs 21 and 90 of the judgment). In these circumstances we are not persuaded that the failure to obtain an expert report on the child’s relationship with each of the parents constituted a serious flaw in the proceedings (see the conclusion of the majority in paragraph 110 of the judgment). 5. The majority also criticised the domestic courts for giving no explanation as to why they did not take into account the opinion of the St Petersburg childcare authorities (and rejected the first applicant’s arguments based on that opinion) concerning the supposedly better living conditions and better opportunities for child development in St Petersburg (see paragraphs 109 and 111 of the judgment). We believe that this argument is not sufficient to find a violation of Article 8 of the Convention. In Leonov, the Court was satisfied that the decision at the domestic level had been reached following adversarial proceedings in which the applicant had been placed in a position enabling him to put forward all arguments in support of his position (see Leonov, cited above, § 74). We would like to add that the role of the Court in such circumstances should be limited to the most fundamental factors affecting the child’s interests as provided for by the Convention (right to life, human treatment, respect of dignity). It is not the Court’s task to assess whose living conditions are better, who has the bigger house and who has more money to support the child’s development. Instead, in accordance with its well-established case-law, the Court should verify whether the domestic authorities took into account any risk to life and allegations of ill-treatment, and other factors indicating a “grave risk” (see X v. Latvia [GC], no. 27853/09, §§ 107, 111 and 114, ECHR 2013). In the present case there was an indication that such a risk existed. The first applicant’s former wife, M., informed the national authorities that her husband had shouted at her. According to the report of the psychologist L., this kind of behaviour reflected suppressed aggression towards M., with an intention to dominate and humiliate her. L. considered that in the event of a divorce, it would be in the child’s best interests to live with his mother (see paragraphs 8 and 13 of the judgment). 6. The Court has opted for the same methodology in another category of cases regarding equality of arms. In the case of C.B. v. Austria (no. 30465/06, 4 April 2013), the Court had an opportunity to examine the issue in a situation of conflicting expert opinions prepared by a private expert (in favour of the applicant) and a court-appointed expert (against the applicant because of his “disordered conduct” and dangerousness). The Court found no violation of Article 6 §§ 1 and 3 (d) of the Convention, because the refusal to admit the private expert opinion into the proceedings, the refusal to allow the private expert to testify as a witness, the refusal of the requests for additional witnesses and the refusal to put certain unspecified questions to the court-appointed expert did not put the applicant in a more unfavourable position than the opposing party and thus did not violate the principle of equality of arms in the criminal proceedings against him. The Court was satisfied that the applicant had had ample opportunity to challenge the court-appointed expert and to submit any arguments in his defence (see C.B. v. Austria, cited above, §§ 44 and 47). 7. In C.B. v. Austria the Court set forth some general principles regarding its own examination of evidence: “39. The Court further observes that it is not within its province to substitute its own assessment of the facts and of the evidence for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them. The Court’s task is to ascertain whether the proceedings in their entirety, including the way in which evidence was taken, were fair (see, among many other authorities, Vidal v. Belgium, 22 April 1992, § 33, Series A no. 235-B; G.B. v. France, cited above, § 59, and, more recently, Gregačević v. Croatia, no. 58331/09, § 63, 10 July 2012). 40. An expert in general assists in solving a question or problem raised in the proceedings that a judge is unable to solve by him- or herself. How the domestic authorities organise their system for the admission of evidence into criminal proceedings is essentially left to the member States. It is not the Court’s role to impose one system over another, but to ensure that the existing system in a given member State provides for sufficient safeguards to guarantee fair proceedings and respect for the equality of arms of the parties involved (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118, ECHR 2011, and Gäfgen v. Germany [GC], no. 22978/05, § 162, ECHR 2010, with further references). 44. ... The Court has stated above that it is not its task to organise the domestic system for admitting evidence in a given member State but to ensure that there are sufficient safeguards available for the applicant to have access to overall fair proceedings ...” In the present case the applicant also had an opportunity to challenge the expert opinion of the Nizhniy Novgorod childcare authorities and to submit any arguments in his favour. Unfortunately, the Court did not apply the above principles and thus, in our view, deviated from its case-law in the present case. 8. Usually the Court takes into account any circumstances relating to the prevention of family contacts. The existence of such circumstances should be established beyond reasonable doubt (see, for example, S.H. v. Italy, no. 52557/14, 13 October 2015; Krapivin v. Russia, no. 45142/14, 12 July 2016; and McIlwrath v. Russia, no. 60393/13, 18 July 2017). In the present case the majority did not find any irregularities (concerning either inaction on the part of the authorities or hostile conduct on the part of the mother) apt to demonstrate that granting a residence order in favour of M. might lead to the child’s complete loss of contact with the father and his family. However, the majority concluded that the interference had not been proportionate to the legitimate aim pursued (see paragraph 113 of the judgment), without any analysis as to whether there had been interference or as to the nature of the legitimate aim, and without conducting the proportionality test. Instead, the Court in fact confined itself to assessing whether the reasoning of the domestic courts had been relevant and sufficient. 9. Moreover, contrary to its own conclusion under Article 8 in the present case, the Court, in examining the application under Article 14 of the Convention, acknowledged that the residence order had been based on an assessment of the best interests of the child. The Court referred to the relevant circumstances of the present case (the young age of the child, the breastfeeding, the parental leave) which should have prevailed over the alleged procedural deficiencies, leading the Court to find no violation of Article 8 (see paragraph 128 of the judgment). 10. The majority found that it was not necessary to examine whether the alleged delays in the residence-order proceedings resulted in the de facto determination of the case, because they had already found a violation of Article 8 of the Convention. We would like to stress that the domestic courts actually acknowledged that the delays in the residence-order proceedings had breached the first applicant’s rights (see paragraph 53 of the judgment). Although they declared inadmissible a claim for compensation lodged on behalf of the child because he had not been formally a party to the residence-order proceedings, they expressly acknowledged when examining the first applicant’s claim that the delays in the proceedings had created legal uncertainty as to the child’s residence and difficulties in his contact with the first applicant. They therefore acknowledged in substance that certain delays in the proceedings had breached the child’s rights too. It is obvious that the domestic courts’ calculation of the overall length of proceedings, as well as the compensation awarded, are in line with the Court’s practice in Article 6 cases (see Palacheva v. Russia, no. 39814/04, § 61, 19 June 2014, and Fateyenkov and Others v. Russia, nos. 44099/04 and 9 others, 18 February 2016). We believe that the authorities acknowledged the breach of the applicants’ rights under the Convention and granted them adequate and sufficient redress. Accordingly, the applicants may no longer claim to be victims of the violation of the length-of-proceedings aspect of Article 8 of the Convention. This could be considered an additional factor leading to the conclusion that the domestic courts examined the case thoroughly (see, by contrast, the conclusion in paragraph 112 of the judgment). 11. Lastly, we cannot accept that the deficiencies in the proceedings (summarised in paragraph 111 of the judgment) were such as to result in a violation of Article 8 of the Convention. None of those arguments (better living conditions, the termination of breastfeeding by the mother and the ending of her parental leave) were sufficient to decide the case in favour of the father. The domestic courts did not reject those arguments presented by the first applicant, but weighed them up against other arguments in favour of the mother (the psychological and emotional attachment of the child to his mother; the divorce caused by the repeated humiliation by the first applicant; the young age of the child; good living conditions, and so on). We believe that it is not for the Court to decide that since breastfeeding had stopped, the child could automatically be handed over to the father. In the absence of a clear methodology (in other words, application of the Convention standards) the Court may decide arbitrarily whether or not the reasoning of the domestic authorities was sufficient. The Court’s task is not to substitute its own assessment for that of the domestic authorities in the exercise of their responsibilities regarding child custody or to act as a court of fourth instance assessing every argument. The Court must ascertain whether the domestic courts conducted an in-depth examination of the entire family situation, in accordance with the general principles set out in paragraph 98 of the judgment. In its appeal decision, referred to in paragraph 25 of the judgment, the Regional Court made an assessment of the case based on the same principles, set out in paragraph 5 of Resolution of the Russian Supreme Court no. 10 of 27 May 1998.

FIRST SECTION CASE OF DZHAMAYEVA AND OTHERS v. RUSSIA (Application no. 43170/04) JUDGMENT This version was rectified on 9 July 2009 under Rule 81 of the Rules of the Court STRASBOURG 8 January 2009 FINAL 14/09/2009 This judgment may be subject to editorial revision. In the case of Dzhamayevy v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Anatoly Kovler,Elisabeth Steiner,Khanlar Hajiyev,Giorgio Malinverni,George Nicolaou, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 4 December 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 43170/04) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Russian nationals, listed below (“the applicants”), on 18 November 2004. 2. The applicants were represented by lawyers of the Stichting Russian Justice Initiative (“SRJI”), an NGO based in the Netherlands with a representative office in Russia. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights and subsequently by their new representative, Mr G. Matyushkin. 3. On 1 September 2005 the Court decided to apply Rule 41 of the Rules of Court and to grant priority treatment to the application and on 21 January 2008 to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicants are: 1. Ms Salamat Dudayevna Dzhamayeva, born in 1947; 2. Ms Khedisht Issayevna Dzhamayeva[1], born in 1974; 3. Ms Kheda Issayevna Dzhamayeva, born in 1971; 4. Mr Magomed Ismailovich Dzhamayev, born in 2001. They live in Staryye Atagi, the Chechen Republic. A. Disappearance of Ismail Dzhamayev 1. The applicants’ account 5. The first applicant is the mother, the second and third applicants are the sisters and the fourth applicant is the son of Mr Ismail Issayevich Dzhamayev, born in 1981. They lived together in the village of Stariye Atagi, the Grozny District. Mr Ismail Dzhamayev was a student of mathematics. (a) Sweeping operation in Stariye Atagi 6. According to the applicants, from 6 to 11 March 2002 federal military officers, under the command of General Borisov, conducted a sweeping operation (зачистка) in the village of Stariye Atagi involving around 10,000 servicemen, 50 armoured personnel carriers (“APCs”) and several military helicopters. 7. Throughout the said period the military besieged Stariye Atagi and restricted freedom of movement in the village. They organised a filtering point at the poultry-yard and the mill on the outskirts of Stariye Atagi where they kept the residents detained during the operation. 8. In total fifteen men residing in Stariye Atagi were apprehended between 6 and 11 March 2002. Whilst some of them were subsequently released, eleven residents disappeared. Relatives of ten of those who disappeared applied to the Court (see Arzu Akhmadova and Others v. Russia, no. 13670/03). (b) Detention of Mr Ismail Dzhamayev 9. According to the applicants, Mr Ismail Dzhamayev was apprehended in the following circumstances. In the morning of 6 March 2002 the first applicant asked him to go and see his uncle who lived in the same village and buy something for him in the village shop. When Mr Ismail Dzhamayev was in the street apparently on the way from the shop to his uncle’s house, he saw two APCs approaching. He got frightened, turned around the corner to Bezymyannaya Street and dropped in at Mr B.’s, his acquaintance. Mr B.’s mother let him in. As soon as he entered, servicemen ran into the yard after him. They said that there was a sweeping operation in the village and that they would check the house. They searched the house. After the search they took Mr B. and Mr Ismail Dzhamayev with them. Mr B.’s mother asked them not to take the children away since they had all their documents with them. The servicemen checked the documents and then put Mr B. and Mr Ismail Dzhamayev in an APC. When Mr B.’s mother tried to intervene, however, the servicemen pushed her aside, hit her against the wall and left her lying on the ground. 10. The next day Mr B. was released. He said that after they had been apprehended, the servicemen took them around the village in the APC for approximately two or three hours while they checked other houses. They were thrown on the floor of the APC and the servicemen put their feet on them. Then they were taken to the filtration point. Mr B. said that he had heard Mr Dzhamayev’s voice when the latter had been questioned. They had asked him what he had been doing at B.’s house, and Mr Dzhamayev had explained that he had gone to the shop and had just dropped by. When Mr B. heard that Mr Ismail Dzhamayev had not returned home he was surprised because he had heard nothing during the night and thought that Mr Dzhamayev had been released. 11. Upon his release Mr B. was barely alive because of the beating he had received from the servicemen. He died six months later. (c) Other incidents in Stariye Atagi during the sweeping operation of 6 ‑ 10 March 2002 12. On 7 March 2002 the residents of Stariye Atagi found several bodies in an abandoned house in the village. The applicants heard others saying that the people had first been blown up and then burned. It was impossible to identify them. However, somebody said that the bodies of some of the persons apprehended on 6 March 2002 had been seen. 13. The applicants also heard that a car had been burned on 9 March 2002. 14. On 10 March 2002 Mr T. Kh., Mr R. D. and Mr V. D. were apprehended and then held at a mill. They were put in a pit where they saw an inscription on the wall “Maka and Amir were here”. Although Mr Dzhamayev’s name was Ismail, everybody had called him Maka since his childhood. One of the servicemen confirmed that Mr Dzhamayev and Mr Amir Pokayev had been held there and said that they had been released in the afternoon the previous day, 9 March 2002. 15. The applicants concluded that Mr Dzhamayev could not have been one of the persons whose burnt bodies had been found in the burnt house on 7 March 2002 or in the car burnt on 9 March 2002. They alleged that on 9 March 2002, instead of being released, he had been transferred elsewhere. 2. Information submitted by the Government 16. The Government confirmed that a sweeping operation had been conducted in the village of Stariye Atagi from 6 to 13 March 2002. The aim of the operation had been to find and arrest members of illegal armed groups who had abducted and killed four servicemen of the FSB on 12 February 2002. 17. On 7 March 2002, at around 2 p.m., a fight broke out between members of the illegal armed groups and federal servicemen in a house at 81 Nagornaya Street. As a result of the use of small arms and grenade dispensers, four members of the illegal armed group were killed. Since the house was set on fire, bodies were severely burnt; after an inspection by law-enforcement officers they were handed over to the local administration for burial. 18. On 9 March 2002 a group of servicemen of military unit no. 3228 at a checkpoint situated within three kilometres from Stariye Atagi was fired at from a car that approached the checkpoint. The servicemen fired back. The explosives contained in the car were blown up, the car was set on fire and the three members of an illegal armed group in it were killed. Their bodies were also severely burnt and handed over to the local administration for burial. An AKM machine gun without its wooden parts, RGD-5 grenades without fuses, a makeshift hand grenade launcher, and other components of AKM machine guns and cartridge cases were found in the car and seized. 19. After the operation had been completed, village residents lodged applications concerning the apprehension and subsequent disappearance of eleven residents of Stariye Atagi, including Mr Ismail Dzhamayev. 3. Relevant information disclosed in relation to the case of Arzu Akhmadova and Others v. Russia, no. 13670/03 20. On 13 March 2002, after the special operation was over and the restrictions were lifted, the villagers brought all the unidentified corpses to Grozny. It appears that they did not manage to contact the authorities, and later that day they returned the bodies to Stariye Atagi. 21. On 14 or 15 March 2002 officers of the Grozny district office of the Interior (РОВД Грозненского района) took the corpses to the village of Tolstoy-Yurt intending to send them on to Mozdok for a forensic examination. 22. On 1 April 2002 D., an investigator from the Prosecutor’s Office of the Chechen Republic, delivered the bodies back to Stariye Atagi. The corpses were wrapped in bags and were decomposed. They remained unidentified. D. explained to the villagers that the prosecutor’s office had insufficient funds to conduct the forensic examination of the corpses and that the refrigerators in the forensic examination department in which they had been kept had been out of order. 23. On 3 April 2002 the residents of Stariye Atagi buried the unidentified bodies. B. The search for Mr Ismail Dzhamayev and the investigation 1. The parties’ submissions in the present case 24. Immediately after Mr Ismail Dzhamayev had been apprehended, the applicants started searching for him. They lodged numerous applications with prosecutors of various levels, public bodies and regional administrative authorities. They also visited a number of State bodies. The applicants mainly received formal responses informing them that their requests had been forwarded to various prosecutor’s offices for examination. 25. On 13 March 2002 the Prosecutor’s Office of the Grozny District (прокуратура Грозненского района) instituted a criminal investigation under Article 105 § 2 (a) of the Criminal Code of Russia (murder of two or more persons) in respect of the disappearance of 13 residents of Stariye Atagi, including Mr Ismail Dzhamayev, between 6 and 11 March 2002. The file was assigned no. 56031. 26. According to the applicants, on an unspecified date Mr B. and his mother were questioned. The second applicant went for questioning together with them and the relevant records should be in the criminal file. 27. According to the Government, on unspecified dates two of the applicants were granted victim status in the proceedings. 28. On 5 April 2002 the local administration of Stariye Atagi (местная администрация села Старые Атаги) issued the applicants with a certificate confirming that Mr Ismail Dzhamayev and nine other residents of Stariye Atagi had been apprehended and taken away by federal military officers between 6 and 11 March 2002 and had then disappeared. The certificate was signed by the acting head of administration of Stariye Atagi and bore an official stamp of the administration. It read, in so far as relevant, as follows: “[The present] certificate is issued by the local administration of the village Stariye Atagi in respect of written applications by the village’s residents, whose children were apprehended and taken for passport check in the period between 6 and 10 March 2002 during the special operation conducted by the federal troops. The local administration thereby confirms that: 1. The following residents of Stariye Atagi were apprehended by the federal troops and taken to an unknown destination: on 6 March 2002 ... Dzhamayev Ismail Issayevich, born in 1981 ... 2. On 13 March 2002 the Grozny Military Prosecutor’s Office instituted criminal proceedings no. 56031 in respect of the disappearance of the above-named persons following their relatives’ applications; the investigation is under way. 3. A governmental commission headed by the deputy chairman of the Government of the Chechen Republic, Magomadov Nasrudin Nozhayevich, was created (by governmental decree no. 188-rp of 13 March 2002) [to investigate] the events.”. 29. On 11 March 2004 the Ministry of the Interior informed the first applicant that, since so far the investigation had failed to establish her son’s fate, the Southern Federal District Office of the Interior was engaged in the search for him. 30. On 17 June 2004 a report of a forensic molecular-genetic expert examination was drawn up according to which Mr Ismail Dzhamayev’s body was among the remains of six bodies found at the cemetery. 31. On 26 March 2007 the investigation was discontinued on account of the absence of any indication of a crime allegedly committed by servicemen. 2. Relevant information disclosed in relation to the case of Arzu Akhmadova and Others v. Russia, no. 13670/03 32. In their submissions the parties referred to the information provided in relation to the above case. The Court shall set out below the facts relevant to the present case. 33. On 7 April 2002 the Prosecutor’s Office of the Chechen Republic answered a request received from Memorial, stating that on 13 March 2002 a criminal investigation had been instituted under Article 105 § 2 (a) of the Russian Criminal Code into the disappearance of 13 residents of Stariye Atagi, including Mr Ismail Dzhamayev, between 6 and 11 March 2002. The letter also stated that: “On 9 March 2002, at around 3 p.m., a VAZ 21099 vehicle approached a checkpoint of military unit 3179 situated about 4 km away from the outskirts of Stariye Atagi on the road between Chechen-Aul and Stariye Atagi. In response to [the servicemen’s] order to stop the car and produce identity papers, shots were fired from the car. During the shoot-out four passengers were killed and the car was burnt. During the examination of the vehicle the remains of a AKM machine gun, a hand grenade launcher and RGD-5 grenades without fuses were found and seized. In this connection, on 12 March 2002 the Prosecutor’s Office of the Grozny District initiated criminal proceedings in case no. 56030 under Article 317 of the Russian Criminal Code. The identities of the persons killed in the car have not yet been established.” 34. On 21 August 2002 the military prosecutor of military unit no. 20102 informed the applicants that their allegations that Mr Ismail Dzhamayev and other residents of Stariye Atagi had disappeared during the sweeping operation had been investigated and that criminal proceedings in criminal cases nos. 14/33/0184-02 and 14/33/0185-02 had been instituted in connection with the combats between the servicemen and the members of the illegal armed groups and as regards the discovery of four bodies bearing signs of a violent death in a burnt car on the road from Chechen-Aul to Stariye Atagi. The letter continued as follows: “The preliminary investigation established that on 9 March 2002, during the special operation in the village of Stariye Atagi, the servicemen of military unit no. 3228 under the command of Senior Lieutenant Z. were checking vehicles going out of the village of Stariye Atagi, since, in accordance with intelligence received, members of illegal armed groups stationed in Stariye Atagi were planning an attack on this road. At around 3 p.m. a VAZ 21099 car approached the servicemen of military unit no. 3228 under the command of Z. In reply to the servicemen’s order to stop, machine-gun fire was opened from the car. The servicemen opened return fire with the result that the car started burning. Subsequently three burnt corpses of unidentified persons were found in it. On 18 May 2002 the criminal proceedings brought in connection with the servicemen’s use of firearms were discontinued... Accordingly, no involvement on the part of the servicemen in the abduction of [the applicants’ relatives] has ever been established ...” 35. On 9 October 2002 the Prosecutor’s Office of the Grozny District sent the case file to the military prosecutor of military unit no. 20102 for investigation. The case file was given the number 34/33/0657-02. 36. On 26 October 2002 the military prosecutor of military unit no. 20102 suspended the investigation on account of the failure to establish the identity of the culprits. The decision read, in particular: “During the period from 6 to 10 March 2002, in the course of a special operation in the village of Stariye Atagi, unidentified servicemen abducted thirteen residents of the village: A. P. Akhmadov, S.-S. Kanayev, I. Dzhamayev, I. Kuntayev, I. A. Chagayev, A. Sh. Pokayev, I. S. Magomadov, M. Kh. Isambayev, A. Baysarov, T. S. Khadzhayev, [V. D.], [R. D.], N. Zakayev. Upon the completion of the operation on 13 March 2002 [V. D.] and [R. D.] were released. The whereabouts of the other residents of Stariye Atagi who were apprehended has not been established... In the course of the investigative actions ... person(s) who had committed the offence were not identified...” 37. The applicants and relatives of other disappeared persons were notified of the decision to suspend the investigation. 38. On 14 December 2002 the Military Prosecutor’s Office of the United Group Alignment (UGA) quashed the decision to suspend the investigation for the following reasons: “The decision was unfounded since in the course of the preliminary investigation not all the investigative measures aimed at identifying persons involved in the disappearance of the named residents of Stariye Atagi were taken. [In particular,] the military units that had conducted the special operation in the village were not identified, the commanders of these units were not questioned, the persons who had conducted a check and apprehended the [disappeared residents] were not identified. Therefore, the preliminary investigation should be reopened.” 39. On 23 December 2002 the case was taken up again by the military prosecutor of military unit no. 20102. Relatives of the disappeared persons were notified of the reopening of the investigation. 40. On 23 January 2003 the military prosecutor of military unit no. 20102 suspended the investigation on account of the failure to identify persons to be charged with the offence. Relatives of the disappeared persons were notified of the decision to suspend the investigation. 41. By letter of 18 March 2003 the military prosecutor of military unit no. 20102 replied to a query lodged by the SRJI on the applicants’ behalf and stated that in the file of criminal case no. 56031 opened in relation to the abduction of Mr Ismail Dzhamayev and other persons there was no indication that the federal servicemen had been involved in the alleged offence. 42. On 2 April 2003 the military prosecutor of military unit no. 20102 notified the SRJI that the case file of the investigation instituted in connection with the disappearance of Mr Ismail Dzhamayev and other persons had been returned to the Prosecutor’s Office of the Chechen Republic, as the military prosecutor had no competence over the case in the absence of evidence of the military personnel’s involvement in the alleged offence. 43. On 26 June 2003 the military prosecutor of military unit no. 20102 quashed the decision of 23 January 2003 and reopened the investigation. Relatives of the disappeared persons were notified of the reopening. 44. On 27 July 2003 the military prosecutor of military unit no. 20102 suspended the investigation on account of the failure to identify persons to be charged with the offence. Relatives of the disappeared persons were notified of the decision. 45. On 7 August 2003 the SRJI applied to the Military Prosecutor’s Office of the UGA requesting, inter alia, exhumation of the remains of the unidentified bodies buried by the residents of Stariye Atagi in a common grave and a forensic examination with a view to their identification. 46. On 29 October 2003 the Military Prosecutor’s Office of the UGA quashed the decision of 27 July 2003 to suspend the investigation on the ground that the whereabouts of unspecified witnesses had been established which required further investigative actions. Relatives of the disappeared persons were notified of the reopening. 47. On 19 March 2004 the Military Prosecutor’s Office of the UGA suspended the investigation. The decision read, in particular: “During the period from 6 to 13 March 2002 servicemen from the internal troops of the Ministry of the Interior and the Ministry of the Defence, officials of the Ministry of the Interior and the FSB conducted a special operation in the village of Stariye Atagi... aimed at the identification, arrest and extermination of members of an illegal armed group and the search for four servicemen of the FSB who had gone missing. ... During the period when the special operation was being conducted unidentified persons in camouflage uniform accompanied by cars and armoured vehicles abducted [the following] residents of Stariye Atagi: A. P. Akhmadov, S.-S. Kanayev, I. Dzhamayev, I. Kuntayev, I. A. Chagayev, A. Sh. Pokayev, I. S. Magomadov, M. Kh. Isambayev, A. Baysarov, T. S. Khadzhayev, A. N. Zakayev. Taking into account that the term of the preliminary investigation has expired and that the investigative measures that could be taken in the absence of a suspect have been completed, [the investigation should be suspended].” 48. Relatives of the disappeared persons were notified of the decision to suspend the investigation. 49. On 22 May 2004 the Military Prosecutor’s Office of the UGA quashed the decision and reopened the investigation. Relatives of the disappeared persons were informed accordingly. 50. On 22 June 2004 the Military Prosecutor’s Office of the UGA again suspended the investigation. The decision read, in so far as relevant: “During the period from 6 to 13 March 2002 servicemen from the internal troops of the Ministry of the Interior and the Ministry of the Defence, officials of the Ministry of the Interior and the FSB conducted a special operation in the village of Stariye Atagi... aimed at the identification, arrest and extermination of members of an illegal armed group and the search for four servicemen of the FSB who had gone missing. ... At around 4 p.m. on 9 March 2002 in Stariye Atagi servicemen of military unit 3179 killed three members of the illegal armed group who were in a car. [Their] bodies were severely damaged and burnt. No measures were taken to identify them. At the same time, according to applications and statements by residents of Stariye Atagi, during the period when the special operation was being conducted unidentified persons in camouflage uniform accompanied by cars and armoured vehicles abducted A. P. Akhmadov, S.-S. Kanayev, I. Dzhamayev, I. Kuntayev, I. A. Chagayev, A. Sh. Pokayev, I. S. Magomadov, M. Kh. Isambayev, A. Baysarov, T. S. Khadzhayev, A. N. Zakayev. In the course of the investigation the bodies of the members of the illegal armed groups buried in the cemetery of Stariye Atagi were exhumed and body tissue taken from them; blood samples were taken from relatives of the abducted persons. According to the medical opinion no. 52/2004, the forensic (molecular-genetic) expert examination showed that the remains found at the cemetery were those of I. A. Chagayev, A. Sh. Pokayev, S.-S. Kanayev, I. Dzhamayev, A. P. Akhmadov and I. S. Magomadov... Taking into account that the term of the preliminary investigation has expired and that the investigative measures that could be taken in the absence of a suspect have been completed, [the investigation should be suspended].” 51. On 6 November 2004 the Military Prosecutor’s Office of the UGA quashed the decision and reopened the investigation. Relatives of the disappeared persons were informed accordingly. 52. On 6 December 2004 the Military Prosecutor’s Office of the UGA suspended the investigation again. Relatives of the disappeared persons were notified of the decision. 53. On 10 January 2006 the Military Prosecutor’s Office of the UGA quashed the decision of 6 December 2004 and reopened the investigation on the following grounds: “In the course of the investigation significant discrepancies between statements by residents of Stariye Atagi and servicemen concerning the detention of the [disappeared] persons and their possible death as a result of the fighting on 7 and 9 March 2002 ... were not resolved. Witness statements in this regard were not duly verified and recorded. The investigating authorities did not take comprehensive measures in order to establish the specific places where the bodies of A. P. Akhmadov, S.-S. Kanayev, I. Dzhamayev, I. A. Chagayev, A. Sh. Pokayev, and I. S. Magomadov, who, according to their relatives, had been apprehended together with the other residents of the village, had been found. Up until now the whereabouts and the fate of other residents of Stariye Atagi who have been missing since the operation was conducted in March 2002 have not been established. In such circumstances the decision to suspend the preliminary investigation should be quashed and the investigation resumed.” 54. On 9 September 2006 the Military Prosecutor’s Office of the UGA ordered another forensic molecular-genetic expert examination aimed at establishing the fate of several other disappeared persons. The order contained the following passage: “...In the course of the operation a house situated in Nagornaya Street was shelled and blown up, a red VAZ 21099 car with members of an illegal armed group in it was burned and crushed by an APC. ...” C. The Court’s request for the case file Despite specific requests made by the Court to submit a copy of the file in criminal case no. 56031 (at present no. 34/00/0014-03), the Government did not provide any documents from the case file. They stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Russian Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings. At the same time the Government suggested that a Court delegation could have access to the file at the place where the preliminary investigation was being conducted, with the exception of documents of a confidential nature and without the right to make copies. II. RELEVANT DOMESTIC LAW 1. The Code of Criminal Procedure 55. Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the RSFSR (Russian Soviet Federative Socialist Republic). On 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation. 56. Article 125 of the new CCP lays down a judicial procedure for the consideration of complaints. Orders of an investigator or prosecutor refusing to institute criminal proceedings or to terminate a case, and other orders and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede a citizen’s access to justice may be appealed against to a local district court, which is empowered to check the lawfulness and grounds of the impugned decisions. 57. Article 161 of the new CCP prohibits the disclosure of information from the preliminary investigation file. Under part 3 of the Article, information from the investigation file may be divulged only with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the parties to the criminal proceedings or prejudice the investigation. Divulging information about the private lives of parties to criminal proceedings without their permission is prohibited. 2. Legislation applicable to counter-terrorist operations 58. Federal Law no. 130-FZ of 25 July 1998 on the Suppression of Terrorism (Федеральный закон от 25 июля 1998 г. № 130-ФЗ «О борьбе с терроризмом») provides as follows: Section 3. Basic Concepts “For the purposes of the present Federal Law the following basic concepts shall be applied: ... ‘suppression of terrorism’ shall refer to activities aimed at the prevention, detection, suppression and minimisation of the consequences of terrorist activities; ‘counter-terrorist operation’ shall refer to special activities aimed at the prevention of terrorist acts, ensuring the security of individuals, neutralising terrorists and minimising the consequences of terrorist acts; ‘zone of a counter-terrorist operation’ shall refer to an individual terrain or water surface, means of transport, building, structure or premises with adjacent territory where a counter-terrorist operation is conducted; ...” Section 13. Legal regime in the zone of an anti-terrorist operation “1. In the zone of an anti-terrorist operation, the persons conducting the operation shall be entitled: ... (2) to check the identity documents of private persons and officials and, where they have no identity documents, to detain them for identification; (3) to detain persons who have committed or are committing offences or other acts in defiance of the lawful demands of persons engaged in an anti-terrorist operation, including acts of unauthorised entry or attempted entry to the zone of the anti-terrorist operation, and to convey such persons to the local bodies of the Ministry of the Interior of the Russian Federation; (4) to enter private residential or other premises ... and means of transport while suppressing a terrorist act or pursuing persons suspected of committing such an act, when a delay may jeopardise human life or health; (5) to search persons, their belongings and vehicles entering or exiting the zone of an anti-terrorist operation, including with the use of technical means; ...” Section 15. Informing the public about terrorist acts “...2. Information that cannot be released to the public includes: (1) information disclosing the special methods, techniques and tactics of an anti-terrorist operation; ... (4) information on members of special units, officers of the operational centre managing an anti-terrorist operation and persons assisting in carrying out such operation. Section 21. Exemption from liability for damage In accordance with the legislation and within the limits established by it, damage may be caused to the life, health and property of terrorists, as well as to other legally-protected interests, in the course of conducting an anti-terrorist operation. However, servicemen, experts and other persons engaged in the suppression of terrorism shall be exempted from liability for such damage, in accordance with the legislation of the Russian Federation.” 59. Federal Law no. 1026-1 of 18 April 1991 on the Police governs various aspects of the police service. 60. Presidential Decree no. 1255c of 23 September 1999 on Measures Enhancing the Efficiency of Counter-Terrorist Operations in the Territory of the North Caucasia Region provides for the creation of the UGA and contains general provisions concerning its structure and operation. It also provides for additional measures to be taken by local authorities and the FSB to maintain public order and security in the region. THE LAW I. The government’s objection CONCERNING non-exhaustion of domestic remedies A. The parties’ submissions 61. The Government contended that the application should be declared inadmissible for non-exhaustion of domestic remedies, since the applicants had failed to challenge either before a higher prosecutor or a court any actions or omissions of the investigating authorities during the investigation, as provided by Chapter 16 of the Code of Criminal Procedure, and to appeal against the decision of 26 March 2007 to discontinue the investigation. They also pointed out that the applicants had not lodged a claim for compensation of non-pecuniary damage under Articles 1067-69 of the Civil Code. 62. The applicants disputed that objection. They maintained that they had exhausted all domestic remedies which could be adequate and effective. The applicants submitted that the criminal-law remedies invoked by the Government were not effective in the Chechen Republic. They pointed out that applicants in other cases raising similar issues had lodged complaints under Article 125 of the Code on Criminal procedure, but that these had been to no avail. The applicants submitted, furthermore, that they were not provided with a copy of the decision of 26 March 2007 to discontinue the investigation, which was not furnished to the Court either, and, therefore, could not have appealed against it. The applicants further argued that the civil-law remedies relied on by the Government could not be considered effective since their outcome would depend on the results of the criminal investigation. B. The Court’s assessment 63. The Court will examine the arguments of the parties in the light of the provisions of the Convention and its relevant practice (for a relevant summary, see Estamirov and Others v. Russia, no. 60272/00, § 73-74, 12 October 2006). 64. The Court notes that the Russian legal system provides, in principle, two avenues of recourse for the victims of illegal and criminal acts attributable to the State or its agents, namely civil and criminal remedies. 65. As regards a civil action to obtain redress for damage sustained through the alleged illegal acts or unlawful conduct of State agents, the Court has already found in a number of similar cases that this procedure alone cannot be regarded as an effective remedy in the context of claims brought under Article 2 of the Convention. A civil court is unable to pursue any independent investigation and is incapable, without the benefit of the conclusions of a criminal investigation, of making any meaningful findings regarding the identity of the perpetrators of fatal assaults or disappearances, still less of establishing their responsibility (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 119-21, 24 February 2005, and Estamirov and Others, cited above, § 77). In the light of the above, the Court confirms that the applicants were not obliged to pursue civil remedies. 66. As regards criminal-law remedies, the Court observes that the applicants complained to the law-enforcement authorities immediately after the abduction of Mr Ismail Dzhamayev and that an investigation has been pending since 13 March 2002. The applicants and the Government dispute the effectiveness of this investigation. 67. The Court considers that this limb of the Government’s preliminary objection raises issues concerning the effectiveness of the criminal investigation which are closely linked to the merits of the applicants’ complaints. Thus, it considers that this objection should be joined to the merits and falls to be examined below under the substantive provisions of the Convention. II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 68. The applicants complained under Article 2 of the Convention that their relative had disappeared after having been detained by Russian servicemen and that the domestic authorities had failed to carry out an effective investigation of the matter. Article 2 reads: “1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” A. The parties’ submissions 69. The Government referred to the results of the forensic examination according to which the remains of Mr Ismail Dzhamayev had been found at the cemetery where bodies of the illegal armed groups’ members killed on 7 and 9 March 2002 had been buried. They submitted that he had been involved in the fight on 9 March 2002. The Government stated that the special operation conducted in Stariye Atagi between 6 and 13 March 2002 had been properly planned and carried out by competent State bodies in compliance with the applicable legislation, in particular with Federal Law no. 130-FZ of 25 July 1998 on Suppression of Terrorism, Federal Law no. 1026-1 of 18 April 1991 on the Police and Presidential Decree no. 1255c of 23 September 1999 on Measures Enhancing the Efficiency of Counter-Terrorist Operations in the Territory of the North Caucasia Region of the Russian Federation. They further submitted that the force applied had been “absolutely necessary” within the meaning of Article 2 of the Convention and, therefore, there had been no breach of the above provision. 70. The applicants reiterated their allegations that Mr Ismail Dzhamayev had been unlawfully apprehended by representatives of the State and then killed. Having been under the control of the authorities, he could not have been involved in the fight on 9 March 2002. B. The Court’s assessment 1. Admissibility 71. The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. Further, the Court has already found that the Government’s objection concerning the alleged non-exhaustion of domestic criminal remedies should be joined to the merits of the complaint (see paragraph 66 above). The complaint under Article 2 of the Convention must therefore be declared admissible. 2. Merits (a) The alleged violation of the right to life of Mr Ismail Dzhamayev i. General principles 72. The Court reiterates that, in the light of the importance of the protection afforded by Article 2, it must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances. Detained persons are in a vulnerable position and the obligation on the authorities to account for the treatment of a detained individual is particularly stringent where that individual dies or disappears thereafter (see, among other authorities, Orhan v. Turkey, no. 25656/94, § 326, 18 June 2002, and the authorities cited therein). Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in detention, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII, and Çakıcı v. Turkey [GC], no. 23657/94, § 85, ECHR 1999‑IV). 73. The situations where deprivation of life may be justified are exhaustive and must be narrowly interpreted. The use of force which may result in the deprivation of life must be no more than “absolutely necessary” for the achievement of one of the purposes set out in Article 2 § 2 (a), (b) and (c). This term indicates that a stricter and more compelling test of necessity must be employed than that normally applicable when determining whether State action is “necessary in a democratic society” under paragraphs 2 of Articles 8 to 11 of the Convention. In assessing the proportionality of the force used the Court must take into consideration not only the actions of State agents who actually administer the force but also all the surrounding circumstances including such matters as the planning and control of the actions under examination (see McCann and Others v. the United Kingdom, 27 September 1995, §§ 146-50, Series A no. 324; Andronicou and Constantinou v. Cyprus, 9 October 1997, § 171, Reports of Judgments and Decisions 1997-VI; and Oğur v. Turkey [GC], no. 21594/93, § 78, ECHR 1999-III). ii. Establishment of the facts 74. The Court observes that it has developed a number of general principles relating to the establishment of facts in dispute, in particular when faced with allegations of disappearance under Article 2 of the Convention (for a summary of these, see Bazorkina v. Russia, no. 69481/01, §§ 103-09, 27 July 2006). The Court also notes that the conduct of the parties when evidence is being obtained has to be taken into account (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25). 75. The applicants alleged that on 6 March 2002 Mr Ismail Dzhamayev had been apprehended by Russian servicemen and then disappeared. In this regard the applicants referred to a statement of Mr B., who had been apprehended together with him. 76. The Government confirmed that a special operation had been conducted in Stariye Atagi between 6 and 13 March 2002. However, they submitted that servicemen had not apprehended Mr Ismail Dzhamayev. At the same time the Government stated that he had been killed by servicemen in a fight that had broken out when fire was opened at servicemen near the road between Grozny and Shatoi from a car in which Mr Ismail Dzhamayev was travelling. They referred to the conclusions of the forensic report according to which Mr Ismail Dzhamayev’s body was among the remains of persons allegedly killed in the fight on 7 and 9 March 2002. 77. The Court notes that despite its repeated requests for a copy of the investigation file in respect of the abduction of Mr Ismail Dzhamayev, the Government refused to submit the materials requested having produced copies of decisions to suspend and resume the investigation and to grant victim status and of the records of interviews held in March 2002. They relied on Article 161 of the Code of Criminal Procedure. The Court observes that in previous cases it has already found this explanation insufficient to justify the withholding of key information requested by the Court (see Imakayeva v. Russia, no. 7615/02, § 123, ECHR 2006‑... (extracts)). In view of this and bearing in mind the principles cited above, the Court finds that it can draw inferences from the Government’s conduct in this respect. 78. The Court notes, firstly, that it is common ground between the parties that a special operation was conducted in Stariye Atagi between 6 and 13 March 2002. It further notes that, according to the applicants, Mr Ismail Dzhamayev had been apprehended by servicemen during the operation and taken to an unknown destination. They referred in this regard to a statement of Mr B., who had been apprehended together with Mr Ismail Dzhamayev. The Court observes that the applicants did not provide a statement by Mr B. to the Court. However, it notes that, according to the applicants, Mr B. died at the end of 2002, that is, two years before the applicants lodged the present application. This fact is not disputed by the Government. The Court further notes that, according to the applicants, Mr B. reiterated his statement to the investigating authorities and relevant records should be contained in the criminal file. The Government, although having failed to produce any relevant materials, did not contest these submissions either. Accordingly, the Court accepts that Mr B. made a statement confirming that Mr Ismail Dzhamayev had been apprehended by servicemen in the circumstances described by the applicants. Moreover, less than a month after the completion of the operation the administration of Stariye Atagi issued the applicants with a certificate, confirming that Mr Ismail Dzhamayev had been apprehended by servicemen during the special operation. 79. The Court notes that the Government, in their observations, stated that Mr Ismail Dzhamayev had been killed by servicemen in a fight. However, they barely addressed the applicants’ allegations that their relative had been apprehended by servicemen in the first place. In this respect the Government merely noted that the applicants’ version of the events was not confirmed by the findings of the investigation. The Court observes, however, that at the early stages of the investigation the applicants’ allegation that their relative had been apprehended by servicemen was accepted by the investigating authorities. It refers, in particular, to the decision to suspend the investigation of 26 October 2002 (see paragraph 36 above). At the later stages, in particular in the decision to suspend the investigation of 19 March 2004 and the order to conduct a forensic examination of 9 September 2006 (see paragraphs 47 and 54 above), the investigating authorities did not state expressly that the applicants’ family members had been apprehended by servicemen, but referred to “unidentified persons in camouflage uniform accompanied by cars and armoured vehicles”. However, the investigation failed to identify those persons. 80. The Court observes that the Government thus did not deny that the applicants’ relative had been abducted by armed men and, at the same time, confirmed that a special operation had been conducted in the village on the date of his abduction. The fact that a large group of armed men in uniform, equipped with military vehicles which could not have been available to paramilitary groups, proceeded during a large-scale special operation conducted in the village by the State’s forces in broad daylight to apprehend several persons with a view to checking their identity documents, strongly supports the applicants’ allegation that these were State servicemen. It further notes that after six years the domestic investigation has produced no tangible results. 81. The Court reiterates that where the applicant makes out a prima facie case and the Court is prevented from reaching factual conclusions owing to the lack of the necessary documents, it is for the Government to argue conclusively why the documents in question cannot serve to corroborate the allegations made by the applicant, or to provide a satisfactory and convincing explanation of how the events in question occurred. The burden of proof is thus shifted to the Government and if they fail in their arguments, issues will arise under Article 2 and/or Article 3 (see Toğcu v. Turkey, no. 27601/95, § 95, 31 May 2005, and Akkum and Others v. Turkey, no. 21894/93, § 211, ECHR 2005‑II). 82. Taking into account the above elements, the Court is satisfied that the applicants have made out a prima facie case that Mr Ismail Dzhamayev was apprehended by State servicemen. The Government’s statement that the investigation did not find any evidence to support the allegation of involvement of the special forces in the abduction is insufficient to discharge them from the above-mentioned burden of proof. Drawing inferences from the Government’s failure to submit the documents which were in their exclusive possession or to provide a plausible explanation of the events in question, the Court finds it established that Mr Ismail Dzhamayev was apprehended on 6 March 2002 by State servicemen during a security operation in Stariye Atagi. 83. The Court further notes that his burnt body, which was identified more than two years later, was found at one of the two locations of the fights which took place on 7 and 9 March 2002. According to the Government, he was killed by servicemen during the fight on 9 March 2002. The Government have submitted no documents, however, such as military reports, which could enable the Court to establish the exact circumstances of the fight the events that took place between Mr Ismail Dzhamayev’s apprehension and his death. However, the Court finds it more appropriate to address this issue below when assessing the State’s compliance with Article 2 of the Convention. For the purpose of establishing the facts the Court accepts that Mr Ismail Dzhamayev was killed by servicemen on 9 March 2002. 84. Accordingly, the Court finds that the evidence available permits it to establish to the requisite standard of proof that on 6 March 2002 Mr Ismail Dzhamayev was apprehended by State servicemen and that he was killed by them on 9 March 2002. iii. The State’s compliance with the substantive obligation under Article 2 85. The Court reiterates that in addition to setting out the circumstances when deprivation of life may be justified, Article 2 implies a primary duty on the State to secure the right to life by putting in place an appropriate legal and administrative framework defining the limited circumstances in which law-enforcement officials may use force and firearms, in the light of the relevant international standards (see Makaratzis v. Greece [GC], no. 50385/99, §§ 57-59, ECHR 2004‑XI, and Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 96, ECHR 2005‑VII). Furthermore, the national law regulating policing operations must secure a system of adequate and effective safeguards against arbitrariness and abuse of force and even against avoidable accident (see Makaratzis, cited above, § 58). In particular, law-enforcement agents must be trained to assess whether or not there is an absolute necessity to use firearms, not only on the basis of the letter of the relevant regulations, but also with due regard to the pre-eminence of respect for human life as a fundamental value (see Nachova and Others, cited above, § 97). 86. In the present case, it has been acknowledged by the Government that Mr Ismail Dzhamayev was killed by State agents as a result of the intentional use of lethal force against him. The State’s responsibility is therefore engaged, and it is for the State to account for the deaths of the applicants’ relative. It is notably for the State to demonstrate that the force used against him by the federal servicemen could be said to have been absolutely necessary and therefore strictly proportionate to the achievement of one of the aims set out in paragraph 2 of Article 2. 87. The Court notes that it is faced with conflicting accounts of the events which led to the killing of Mr Ismail Dzhamayev. According to the applicants, after he had been apprehended by the State servicemen on 6 March 2002, the latter had unlawfully killed him and staged the fight on 9 March 2002 so as to justify the killing. According to the Government, the fight on 9 March 2002 had indeed taken place and the applicants’ relative had been killed as a result of the use of force which was no more than “absolutely necessary”. The Court will address these conflicting accounts below. 88. The Court notes firstly that it is aware of the difficult situation in the Chechen Republic at the material time, which called for exceptional measures on the part of the State to suppress the illegal armed insurgency (see Isayeva and Others v. Russia, nos. 57947/00, 57948/00 and 57949/00, § 178, 24 February 2005, or Khatsiyeva and Others v. Russia, no. 5108/02, § 134, 17 January 2008). It also does not overlook the fact that an armed conflict, such as that in Chechnya, may entail developments to which State agents are called upon to react without prior preparation. Bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the obligation to protect the right to life must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities (see, mutatis mutandis, Makaratzis, cited above, § 69, and Mahmut Kaya v. Turkey, no. 22535/93, § 86, ECHR 2000‑III). 89. Turning to the facts of the present case, the Court notes the Government’s contention that the special operation conducted in Stariye Atagi between 6 and 13 March 2002 had been properly planned and carried out in compliance with the applicable legislation, in particular with Federal Law no. 130-FZ of 25 July 1998 on Suppression of Terrorism, Federal Law no. 1026-1 of 18 April 1991 on Police and Presidential Decree no. 1255c of 23 September 1999 on Measures Enhancing the Efficiency of Counter-Terrorist Operations in the Territory of the North Caucasia Region of the Russian Federation. The Court leaves open the question whether the legal acts in question constituted an appropriate legal framework for the use of force and contained clear and sufficient safeguards to prevent arbitrary deprivation of life since, in any event, the Government have failed to demonstrate that the circumstances in which the applicants’ relative was killed rendered the use of lethal force against him inevitable. 90. The Court notes that in their observations on the admissibility and merits of the present application the Government provided a concise description of the fight of 9 March 2002, reproduced in paragraph 18 above. The circumstances of the fight were also outlined in certain decisions and letters by the prosecuting authorities, made available to the Court in relation to the case of Arzu Akhmadova and Others v. Russia, no. 13670/03, but not in much more detail. However, no documents pertaining to the conduct of the special operation as a whole and of this fight in particular have been submitted to the Court. No military reports on the conduct of the fight with a detailed description of the circumstances which warranted the use of lethal force, orders made in this respect and actions of the servicemen have been made available to the Court. No records of questioning of servicemen who took part in the fight, if such questioning ever took place, have been presented either. Such scarce information on the circumstances in which, according to the Government, Mr Ismail Dzhamayev was killed clearly could not constitute sufficient justification for the use of lethal force. 91. In particular, the Government submitted that on 9 March 2002 a group of servicemen was fired at from a car that was approaching a checkpoint within three kilometres of Stariye Atagi. As the servicemen fired back, the car was set on fire and the three members of illegal armed groups in it were killed. The letter of the Prosecutor’s Office of the Chechen Republic of 7 April 2002 stated in this respect that on 9 March 2002 a VAZ 21099 car had approached a checkpoint of military unit no. 3179 situated about 4 km away from the outskirts of Stariye Atagi on the road between Chechen-Aul and Stariye Atagi. In response to the order to stop the car and produce identity papers, shots had been fired from the car. During the shoot-out four passengers had been killed and the car had been burnt. In the course of the subsequent examination of the car the remains of an AKM machine gun, a hand grenade launcher and RGD-5 grenades without fuses had been found and seized. According to the letter of the military prosecutor of military unit no. 20102 of 21 August 2002, at around 3 p.m. on the date in question a VAZ 21099 car had approached the servicemen of military unit no. 3228. In reply to their order to stop, machine-gun fire had been opened from the car. The servicemen had opened return fire which had set the car on fire. Subsequently three burnt corpses of unidentified persons had been found in it. The decision of the Military Prosecutor’s Office of the UGA to suspend the investigation of 19 March 2004 stated, inter alia, that at around 4 p.m. on 9 March 2002 in Stariye Atagi servicemen of the unit 1 pSpN had killed three members of the illegal armed group who had been in a car and resisted with arms. In the decision of the Military Prosecutor’s Office of the UGA of 9 September 2006 to conduct a forensic examination it was noted that in the course of the special operation conducted in Stariye Atagi a red VAZ 21099 car with members of an illegal armed group in it had been burnt and crushed by an APC. 92. The Court notes the discrepancies contained in the Government’s submissions and the letters and decisions of the prosecuting authorities concerning the number of persons killed in the car on 9 March 2002. It further observes that, as can be seen from the information submitted, the fire was opened from the car which disregarded the servicemen’s order to stop and present identity papers. The Court accepts that the opened fire must have posed a danger to the lives of the servicemen at the checkpoint and might have warranted the use of arms in response. However, the information available does not permit it to establish conclusively which weapons were used by the servicemen and which particular actions led to the death of Mr Ismail Dzhamayev, thus precluding the Court from finding that the use of lethal force was in compliance with Article 2 of the Convention. It notes, in particular, that it follows from the decision of the Military Prosecutor’s Office of the UGA of 9 September 2006 that the car with several persons in it, which had already been shot at and set on fire, was crushed by an APC, which is further supported by photographs of the car submitted by the applicants. No explanation has been provided to the Court as to why an action as drastic as this was necessary in the circumstances. Accordingly, the Court considers that even assuming that Mr Ismail Dzhamayev was killed in the circumstances described by the Government, the latter have not justified their submission that the use of force was no more than “absolutely necessary”. 93. The Court observes that the applicants contended that, having been under the control of the authorities, Mr Ismail Dzhamayev could not have been involved in the fight on 9 March 2002. The Court does not find it necessary to make specific findings in this respect since it has established above that even assuming the Government’s version of the events to be correct, they have failed to justify that the lethal force was used in compliance with Article 2 of the Convention. Nevertheless, it cannot but be perplexed, in view of its finding in paragraph 82 above that Mr Ismail Dzhamayev was apprehended by State servicemen and in the absence of any information provided by the Government on his subsequent release or escape, by the submission that – despite being in detention – he somehow managed to procure firearms and a car and engage in a fight with federal forces. No explanation has been provided by the Government in this respect. 94. The Court finds that in the absence of information on the crucial elements mentioned in paragraphs 90-93 above, the Government cannot be regarded as having accounted for the use of lethal force in the circumstances of the present case. It is therefore not persuaded that the killing of Mr Ismail Dzhamayev constituted a use of force which was no more than absolutely necessary in pursuit of the aims provided for in paragraph 2 of Article 2 of the Convention. 95. There has accordingly been a violation of Article 2 of the Convention in this respect. (b) The alleged inadequacy of the investigation of the kidnapping 96. The Court notes at the outset that no documents from the investigation file were disclosed by the Government. It therefore has to assess the effectiveness of the investigation on the basis of the few documents submitted by the applicants and the information about its progress submitted by the Government. The Court will also take into account the relevant information disclosed in relation to the case of Arzu Akhmadova and Others v. Russia, no. 13670/03. 97. Turning to the facts of the present case, the Court notes that Mr Ismail Dzhamayev was apprehended on 6 March 2002 during a special operation conducted in Stariye Atagi between 6 and 13 March 2002. The investigation was opened on 13 March 2002. The Court is therefore satisfied that the authorities’ reaction was sufficiently prompt. 98. The Court further notes that on an unspecified date within six months of the events Mr B., who had witnessed Mr Ismail Dzhamayev’s apprehension, and his mother were questioned. However, it appears that after that a number of crucial steps were either delayed or not taken at all. 99. The Court observes, firstly, that the body of the applicants’ relative which was severely burnt was not identified until over two years after the events which led to his death. Not only did the authorities not take any steps to identify the body of their own motion, but no forensic examination was conducted even after one had been requested by the applicants (see paragraphs 21-24 and 45 above) and the body remained unidentified until 17 June 2004. Such a delay, for which no explanation has been provided, could only have significantly impeded the establishment of the exact circumstances of his death. 100. From the materials available to the Court it appears that a number of essential steps were never taken. Most notably, it appears that no witnesses other than Mr B. and his mother were ever questioned. No information, let alone any documents, have been provided to the Court as to which servicemen, if any, were questioned in relation to the incident at the checkpoint on 9 March 2002. Apart from this incident, it appears that no servicemen were questioned with regard to the applicants’ allegations that their relative had been abducted in the course of the special operation in Stariye Atagi. Likewise, there is no evidence that the place where Mr Ismail Dzhamayev was apprehended was ever examined. It appears that the filtering point at the poultry yard and the mill on the outskirts of the village were not examined either. Furthermore, it appears that the officials of the local administration which provided the applicants with a certificate confirming that their relative had been apprehended by servicemen during the special operation were never questioned either. 101. The Court observes that in the present case the investigating authorities not only did not comply with the obligation to exercise exemplary diligence and promptness in dealing with such a serious crime (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 86, ECHR 2002-II), but failed to take the most elementary investigative measures. 102. The Court further notes that, according to the information available, two of the applicants were granted victim status, although it is not clear who exactly. In any event, the applicants were not informed of any significant developments in the investigation, apart from several decisions to suspend and resume it. It appears that they were not even provided with a copy of the decision of 26 March 2007 to discontinue the investigation. Accordingly, the investigators failed to ensure that the investigation received the required level of public scrutiny and to safeguard the interests of the next of kin in the proceedings. 103. Lastly, the Court notes that the investigation was adjourned and resumed several times. Such a manner of proceeding was not conducive to ensuring the accountability of the servicemen responsible for the abduction of the applicants’ relative and involved in the incident of 9 March 2002. 104. Having regard to the Government’s preliminary objection that was joined to the merits of the complaint, the Court observes that the applicants, having no access to the case file and not being properly informed of the progress of the investigation, could not have effectively challenged the actions or omissions of the investigating authorities before a court. Furthermore, the investigation was resumed by the prosecuting authorities themselves a number of times due to the need to take additional investigative measures (see, in particular, paragraphs 38 and 53). However, they still failed to investigate the applicants’ allegations properly. Moreover, owing to the time that had elapsed since the events complained of, certain investigative steps that ought to have been carried out much earlier could no longer usefully be conducted. Therefore, it is highly doubtful that the remedy relied on would have had any prospects of success. This applies even more so to the decision of 26 March 2007 to discontinue the investigation, which was not provided either to the applicants or to the Court. Therefore, the Court finds that the remedy relied on by the Government was ineffective in the circumstances and rejects their preliminary objection in this respect. 105. In the light of the foregoing, the Court finds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the abduction and subsequent death of Mr Ismail Dzhamayev in breach of Article 2 under its procedural head. Accordingly, there has been a violation of Article 2 on this account also. III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 106. The applicants relied on Article 3 of the Convention, submitting that as a result of their relative’s disappearance and the State’s failure to investigate it properly, they had endured mental suffering in breach of Article 3 of the Convention. They also stated that it was highly probable that Mr Ismail Dzhamayev had been subjected to treatment contrary to Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties’ submissions 107. The Government disagreed with these allegations and argued that the investigation had not established that either the applicants or Mr Ismail Dzhamayev had been subjected to treatment prohibited by Article 3 of the Convention. 108. In their observations on the admissibility and merits of the application the applicants submitted that they no longer wished to have the complaint regarding the alleged ill-treatment of Mr Ismail Dzhamayev examined. They further reiterated the complaint concerning the mental suffering endured. B. The Court’s assessment 1. Admissibility (a) The complaint concerning the ill-treatment of Mr Ismail Dzhamayev 109. The Court, having regard to Article 37 of the Convention, finds that the applicants do not intend to pursue this part of the application, within the meaning of Article 37 § 1 (a). The Court also finds no reasons of a general character, affecting respect for human rights, as defined in the Convention, which require further examination of the present complaints by virtue of Article 37 § 1 of the Convention in fine (see, for example, Chojak v. Poland, no. 32220/96, Commission decision of 23 April 1998, unpublished; Singh and Others v. the United Kingdom (dec.), no. 30024/96, 26 September 2000; and Stamatios Karagiannis v. Greece, no. 27806/02, § 28, 10 February 2005). 110. It follows that this part of the application must be struck out in accordance with Article 37 § 1 (a) of the Convention. (b) The complaint concerning the applicants’ mental suffering 111. The Court notes that this part of the complaint under Article 3 of the Convention 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. 2. Merits 112. The Court observes that the question whether a member of the family of a “disappeared person” is a victim of treatment contrary to Article 3 will depend on the existence of special factors which give the suffering of the applicants a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human rights violation. Relevant elements will include the proximity of the family tie, the particular circumstances of the relationship, the extent to which the family member witnessed the events in question, the involvement of the family member in the attempts to obtain information about the disappeared person and the way in which the authorities responded to those enquiries. The Court would further emphasise that the essence of such a violation does not mainly lie in the fact of the “disappearance” of the family member but rather concerns the authorities’ reactions and attitudes to the situation when it is brought to their attention. It is especially in respect of the latter that a relative may claim directly to be a victim of the authorities’ conduct (see Orhan, cited above, § 358, and Imakayeva, cited above, § 164). 113. The Court notes that the applicants are close relatives of Mr Ismail Dzhamayev. After unidentified bodies had been found in Stariye Atagi following the incidents on 7 and 9 March 2002, the applicants themselves tried to secure their identification. However, despite their efforts not only did the authorities refuse to conduct a forensic examination, but on 1 April 2002 returned the severely decomposed bodies wrapped in bags to the applicants on the ground that the refrigerators in the forensic examination department had been out of order. The applicants had to bury the bodies themselves. Over two years later, after the forensic examination had eventually been conducted, they learned that among those bodies were the disfigured remains of their family member. In the Court’s view, such conduct of the authorities demonstrated an astonishing lack of care and respect for both the person killed and his relatives and amounted to inhuman and degrading treatment contrary to Article 3. 114. The Court therefore concludes that there has been a violation of Article 3 of the Convention in respect of the applicants. IV. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 115. The applicants further stated that Mr Ismail Dzhamayev had been detained in violation of the guarantees of Article 5 of the Convention, which reads, in so far as relevant: “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:... (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; ... 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” A. The parties’ submissions 116. In the Government’s opinion, no evidence was obtained by the investigators to confirm that Mr Ismail Dzhamayev had been deprived of his liberty in breach of the guarantees set out in Article 5 of the Convention. 117. The applicants reiterated the complaint. B. The Court’s assessment 1. Admissibility 118. 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 the complaint is not inadmissible on any other grounds and must therefore be declared admissible. 2. Merits 119. The Court has previously noted the fundamental importance of the guarantees contained in Article 5 to secure the right of individuals in a democracy to be free from arbitrary detention. It has also stated that unacknowledged detention is a complete negation of these guarantees and discloses a very grave violation of Article 5 (see Çiçek v. Turkey, no. 25704/94, § 164, 27 February 2001, and Luluyev and Others v. Russia, no. 69480/01, § 122, ECHR 2006‑... (extracts)). 120. The Court has found it established that State servicemen apprehended Mr Ismail Dzhamayev on 6 March 2002. He was killed by servicemen on 9 March 2002, and no information has been provided by the State concerning his possible release and escape between the dates of his apprehension and the date of his death. His detention was not acknowledged, was not logged in any custody records and there exists no official trace of his whereabouts between his apprehension and killing. In accordance with the Court’s practice, this fact in itself must be considered a most serious failing, since it enables those responsible for an act of deprivation of liberty to conceal their involvement in a crime, to cover their tracks and to escape accountability for the fate of a detainee. Furthermore, the absence of detention records, noting such matters as the date, time and location of detention and the name of the detainee and the reasons for the detention and the name of the person effecting it, must be seen as incompatible with the very purpose of Article 5 of the Convention (see Orhan, cited above, § 371). 121. In view of the foregoing, the Court finds that Mr Ismail Dzhamayev was held in unacknowledged detention without any of the safeguards contained in Article 5. This constitutes a particularly grave violation of the right to liberty and security enshrined in Article 5 of the Convention. V. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 122. The applicants complained that under national law they were barred from filing a civil claim to obtain compensation for their relative’s unlawful detention or death pending the outcome of the criminal investigation. They relied on Article 6 § 1 of the Convention, the relevant parts of which provide: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” A. The parties’ submissions 123. The Government disputed this allegation. 124. The applicants made no further submissions. B. The Court’s assessment 1. Admissibility 125. 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 the complaint is not inadmissible on any other grounds and must therefore be declared admissible. 2. Merits 126. The Court finds that the applicants’ complaint under Article 6 concerns essentially the same issues as those discussed under the procedural aspect of Article 2 and under Article 13. In these circumstances, the Court finds that no separate issues arise under Article 6 of the Convention. VI. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 127. The applicants complained that they had been deprived of effective remedies in respect of the violations of Articles 2 and 3 of the Convention, contrary to Article 13 of the Convention, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. The parties’ submissions 128. The Government submitted that the applicants could actively participate in the investigation and appeal against actions or omissions of the investigating authorities in court, which they had failed to do. Furthermore, they could have filed claims in respect of non-pecuniary damage, which they had not done either. The Government argued that the applicants thus had effective domestic remedies in respect of their complaints. They referred, in particular, to several decisions by courts of the Chechen Republic delivered in other cases upholding complaints concerning certain actions of investigating authorities or awarding non-pecuniary damages. 129. The applicants argued that in their case the State had failed to conduct an adequate investigation into the abduction and killing of their family member, which undermined the effectiveness of other possible remedies. B. The Court’s assessment 1. Admissibility 130. 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. 2. Merits 131. The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. According to the Court’s settled case-law, the effect of Article 13 of the Convention is to require the provision of a remedy at national level allowing the competent domestic authority both to deal with the substance of a relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they comply with their obligations under this provision. However, such a remedy is only required in respect of grievances which can be regarded as “arguable” in terms of the Convention (see, among many other authorities, Halford v. the United Kingdom, 25 June 1997, § 64, Reports of Judgments and Decisions 1997‑III). 132. As regards the complaint of lack of effective remedies in respect of the applicants’ complaint under Article 2, the Court emphasises that, given the fundamental importance of the right to protection of life, 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 deprivation of life and infliction of treatment contrary to Article 3, including effective access for the complainant to the investigation procedure leading to the identification and punishment of those responsible (see Anguelova v. Bulgaria, no. 38361/97, §§ 161-162, ECHR 2002-IV, 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 Khashiyev and Akayeva, cited above, § 183). 133. In view of the Court’s above findings with regard to Article 2, this complaint is clearly “arguable” for the purposes of Article 13 (see Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131). The applicants should accordingly have been able to avail themselves of effective and practical remedies capable of leading to the identification and punishment of those responsible and to an award of compensation for the purposes of Article 13. 134. It follows that in circumstances where, as here, the criminal investigation into the violent death has been ineffective and the effectiveness of any other remedy that may have existed, including civil remedies suggested by the Government, has consequently been undermined, the State has failed in its obligation under Article 13 of the Convention. 135. Consequently, there has been a violation of Article 13 in conjunction with Article 2 of the Convention. 136. As regards the applicants’ reference to Article 3 of the Convention, the Court notes that it has found a violation of the above provision on account of the applicants’ mental suffering in the period during which the authorities failed to identify the body of their family member and their conduct in this respect. However, the Court has already found a violation of Article 13 of the Convention in conjunction with Article 2 of the Convention on account of the authorities’ conduct that led to the suffering endured by the applicants. The Court considers that, in the circumstances, no separate issue arises in respect of Article 13 in connection with Article 3 of the Convention. VII. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 137. The applicants alleged that they had been discriminated against in the enjoyment of their Convention rights, since the violations of which they complained had taken place on account of their being resident in Chechnya and their ethnic background as Chechens. This was contrary to Article 14 of the Convention, which reads as follows: “The enjoyment of the right 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.” A. The parties’ submissions 138. The Government argued that the allegations were unsubstantiated. 139. The applicants maintained the complaint. B. The Court’s assessment 140. The Court observes that no evidence has been submitted to it that suggests that the applicants were treated differently from persons in an analogous situation without objective and reasonable justification, or that they have ever raised this complaint before the domestic authorities. It thus finds that this complaint has not been substantiated. 141. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. VIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION 142. 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. Pecuniary damage 143. The fourth applicant claimed that he had sustained damage in respect of the loss of his father’s earnings following his apprehension and subsequent killing. The fourth applicant claimed a total of 231,520.11 roubles (RUR) under this head (approximately 6,502 euros (EUR)). 144. The fourth applicant claimed that Mr Ismail Dzhamayev had been temporarily unemployed due to the situation in Chechnya. Having regard to the provisions of the Civil Code on the calculation of lost earnings, he claimed that the amount of an unemployed person’s earnings should be equal to the average remuneration of a person with similar qualifications and could not be based on an amount lower than the subsistence level determined by federal laws. He submitted that he was dependent on his father and would have benefited from the latter’s financial support in the amount indicated above, that is, 30% of his earnings. The fourth applicant’s calculations were based on provisions of the Civil Code and the actuarial tables for use in personal injury and fatal accident cases published by the United Kingdom Government Actuary’s Department in 2007 (“the Ogden tables”). 145. The Government argued that no compensation for pecuniary damage should be awarded to the fourth applicant since lethal force had been used against his father in compliance with Article 2 of the Convention. 146. The Court reiterates that there must be a clear causal connection between the damage claimed by the applicants and the violation of the Convention. Furthermore, under Rule 60 of the Rules of Court any claim for just satisfaction must be itemised and submitted in writing together with the relevant supporting documents or vouchers, “failing which the Chamber may reject the claim in whole or in part”. The Court finds that there is indeed a direct causal link between the violation of Article 2 in respect of the fourth applicant’s father and the loss by the fourth applicant of the financial support which he could have provided for him. It further notes that Mr Ismail Dzhamayev was unemployed. Nevertheless, the Court finds it reasonable to assume that he would eventually have had some earnings and that the fourth applicant would have benefited from them. Having regard to the fourth applicant’s submissions, the Court awards him EUR 5,000 in respect of pecuniary damage, plus any tax that may be chargeable on that amount. B. Non-pecuniary damage 147. The applicants claimed EUR 80,000 jointly in respect of non-pecuniary damage for the suffering they had endured as a result of the loss of their family member, the indifference shown by the authorities towards him and the failure to provide any information about his fate for a long time. 148. The Government found the amount claimed exaggerated. 149. The Court has found a violation of Articles 2, 5 and 13 of the Convention on account of the unacknowledged detention and killing of the applicants’ relative. The applicants themselves have been found to have been victims of a violation of Article 3 of the Convention. The Court thus accepts that they have suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations. It awards the applicants jointly EUR 35,000, plus any tax that may be chargeable thereon. C. Costs and expenses 150. The applicants were represented by the SRJI. They submitted an itemised schedule of costs and expenses that included research and interviews in Ingushetia and Moscow, at a rate of EUR 50 per hour, and the drafting of legal documents submitted to the Court and the domestic authorities, at a rate of EUR 50 per hour for SRJI lawyers and EUR 150 per hour for SRJI senior staff. They also claimed postal expenses in the amount of EUR 26.22, translation expenses in the amount of EUR 76,95, as certified by invoices, and administrative expenses in the amount of EUR 407.75. The aggregate claim in respect of costs and expenses related to the applicants’ legal representation amounted to EUR 6,335.92. 151. The Government did not dispute the details of the calculations submitted by the applicants, but pointed out that they should be entitled to the reimbursement of their costs and expenses only in so far as it had been shown that they had been actually incurred and were reasonable as to quantum (see Skorobogatova v. Russia, no. 33914/02, § 61, 1 December 2005). 152. The Court has to establish first whether the costs and expenses indicated by the applicants were actually incurred and, second, whether they were necessary and reasonable (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI). 153. Having regard to the details of the information available, the Court is satisfied that these rates are reasonable and reflect the expenses actually incurred by the applicants’ representatives. Further, it has to be established whether the costs and expenses incurred for legal representation were necessary. The Court notes that this case was rather complex and required a certain amount of research and preparation. Accordingly, it accepts that the expenses incurred were necessary. 154. Having regard to the details of the claims submitted by the applicants, the Court awards them the amount as claimed, together with any value-added tax that may be chargeable, the net award to be paid into the representatives’ bank account in the Netherlands, as identified by the applicants. D. Default interest 155. 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 1. Decides to join to the merits the Government’s objection as to non-exhaustion of criminal domestic remedies and rejects it; 2. Declares the complaints under Articles 2, 3, 5, 6 and 13 of the Convention admissible, decides to strike the application out of its list of cases in accordance with Article 37 § 1 (a) of the Convention in so far as it concerns the applicants’ complaint under Article 3 of the Convention in respect of Mr Ismail Dzhamayev and declares the remainder of the application inadmissible; 3. Holds that there has been a violation of Article 2 of the Convention in respect of Mr Ismail Dzhamayev; 4. Holds that there has been a violation of Article 2 of the Convention in respect of the failure to conduct an effective investigation into the killing of Mr Ismail Dzhamayev; 5. Holds that there has been a violation of Article 3 of the Convention in respect of the applicants; 6. Holds that there has been a violation of Article 5 of the Convention in respect of Mr Ismail Dzhamayev; 7. Holds that no separate issues arise under Article 6 of the Convention; 8. Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 2 of the Convention; 9. Holds that no separate issues arise under Article 13 of the Convention in respect of the alleged violation of Article 3; 10. Holds (a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts: (i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, to be converted into Russian roubles at the rate applicable date of settlement, in respect of pecuniary damage to the fourth applicant; (ii) EUR 35,000 (thirty-five thousand euros), plus any tax that may be chargeable, to be converted into Russian roubles at the rate applicable at the date of settlement, in respect of non-pecuniary damage to the applicants jointly; (iii) EUR 6,335.92 (six thousand three hundred and thirty-five euros and ninety-two cents), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be paid into the representatives’ bank account in the Netherlands; (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; 11. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 8 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos Rozakis RegistrarPresident [1] Rectified on 9 July 2009: the text was “Ms Khedishit Issayevna Dzhamayeva…”

FOURTH SECTION CASE OF DIMITROVI v. BULGARIA (Application no. 12655/09) JUDGMENT (merits) STRASBOURG 3 March 2015 FINAL 03/06/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Dimitrovi v. Bulgaria, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Guido Raimondi, President,Päivi Hirvelä,George Nicolaou,Ledi Bianku,Nona Tsotsoria,Zdravka Kalaydjieva,Faris Vehabović, judges,and Françoise Elens-Passos, Section Registrar, Having deliberated in private on 10 February 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 12655/09) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Bulgarian nationals, Ms Angelina Nedyalkova Dimitrova and Mr Konstantin Konstantinov Dimitrov (“the applicants”), on 23 January 2009. 2. The applicants were represented by Mr Y. Grozev and Ms N. Dobreva, lawyers practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, of the Ministry of Justice. 3. The applicants alleged that property of theirs had been unfairly forfeited to the State. 4. On 2 September 2013 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicants were born in 1973 and 2004 respectively and live in Sofia. 6. The applicants are the widow and the son of Mr Konstantin Dimitrov Dimitrov, who died in December 2003. A. First proceedings under the CPA 7. In 2001, following publications in the media concerning the income of the first applicant and her husband, the Sofia regional public prosecutor’s office opened proceedings against them under Chapter Three of the Citizens’ Property Act (“the CPA”, see paragraphs 23-28 below). In a decision of 23 August 2002 a prosecutor from that office discontinued the proceedings. 8. The prosecutor found, first, that for the period from 1990 to 1992 Mr Dimitrov’s expenditure had exceeded his income, but that in 2002 he had paid the difference to the State budget. Accordingly, there was no ground to pursue the proceedings for that period (section 45 of the CPA, see paragraph 27 below). 9. Next, the prosecutor described the income and the expenditure of the first applicant and Mr Dimitrov for the period from 1993 to 1997, but did not make an explicit finding as to whether she considered their income lawful within the meaning of the CPA. 10. Lastly, analysing the couple’s income and expenditure for the period from 1997 to 2001, the prosecutor concluded that they were equivalent, and that there were no grounds for bringing forfeiture proceedings under the CPA. B. Second proceedings under the CPA 11. On an unspecified date the Sofia regional public prosecutor’s office opened new proceedings under Chapter Three of the CPA. On 18 November 2004 it brought an action in the Sofia Regional Court against the two applicants, seeking the forfeiture of two flats, one in Varna and one in Sofia, a garage, an office and a share in a plot of land in Sofia, a holiday house in the Borovets resort and a Toyota Land Cruiser car, all acquired by the first applicant and Mr Dimitrov with income received between 1990 and 1999, which was allegedly “unlawful” within the meaning of section 34 of the CPA (see paragraph 25 below). 12. The Sofia Regional Court gave a judgment on 28 November 2006. It analysed in detail the income received by the first applicant and her husband and their expenditure during the period at issue. Due to the difficulties in making an assessment because of the high inflation of that time, the court relied on expert conclusions, calculating all the amounts in United States dollars (USD). 13. The Regional Court accepted in particular, referring to rent contracts, the tax declaration submitted by the first applicant in 1998 and witness statements by those involved, that in 1997 the first applicant and her husband had received substantial income from farming. 14. On the basis of its calculations, the Regional Court concluded that the couple’s expenditure for the period at issue had exceeded their proved income by approximately USD 40,000, which by virtue of section 34 of the CPA represented “unlawful” income. Accordingly, allowing the action brought before it in part, the Sofia Regional Court ordered the forfeiture of property of that value, namely the flat in Varna, the share in a plot of land in Sofia and approximately one-quarter of the flat in Sofia. 15. Both parties lodged appeals. 16. On 17 March 2008 the second-instance Sofia Court of Appeal gave a judgment. It found that the applicants had not established all the income considered proven by the Regional Court, in particular as concerns the family’s farming business. According to the Court of Appeal it was unacceptable to prove such income on the basis of the evidence presented before the lower court, without any further documents showing, for example, expenditure and revenue received. It also considered unproven two monetary gifts, one of them allegedly made by the first applicant’s parents and the other allegedly received on the occasion of her wedding to Mr Dimitrov in 1997. 17. The Court of Appeal calculated that the expenditure of the first applicant and her husband for the period from 1990 to 1999 had exceeded their income by approximately USD 286,000. It considered further that the properties for which the prosecution authorities sought forfeiture had been acquired with this “unlawful” income, and accordingly ordered the forfeiture of the flats in Sofia and Varna and the office, the garage and the share in a plot of land in Sofia. As to the remaining properties at issue, namely a holiday house in Borovets and a car, given that they had in the meantime been transferred to third parties, the Court of Appeal ordered the applicants to pay their monetary value to the State. 18. The applicants lodged an appeal on points of law. In a final decision of 28 July 2008 the Supreme Court of Cassation refused to accept the appeal for examination. 19. On the basis of the judgment of 17 March 2008, on 28 January 2010 the regional governor of Varna issued a decision declaring the flat in Varna State property. Similar decisions concerning the properties in Sofia were issued by the Sofia regional governor on 27 July and 4 August 2011. Following these decisions the applicants surrendered possession to the State. 20. On 20 July 2010 the applicants paid 178,815 Bulgarian levs (BGN) to the State budget, representing the value of the remaining forfeited properties, namely the holiday house in Borovets and the car, and the court fees and other costs due by them. In the domestic proceedings they had been ordered to pay BGN 14,019.34 in total in fees and other expenses. C. Other developments 21. In 2003 and 2004 the relevant tax authorities carried out probes into the income received by the first applicant and her husband between 1997 and 2002. Their decisions, calculating the income tax due, were given on 23 June and 26 November 2004. 22. In respect of the first applicant the respective decision was partly quashed on 20 June 2007 by the Supreme Administrative Court. II. RELEVANT DOMESTIC LAW AND PRACTICE 23. The Citizens’ Property Act (“the CPA”, Закон за собствеността на гражданите) was adopted in 1973. While most of its provisions were repealed at the beginning of the 1990s, its Chapter Three, entitled “Forfeiture of non-work-related income received by citizens”, remained in force until 2005. 24. The provisions of Chapter Three were not applicable to proceeds of crime, as sections 31(2) and 42(4) of the CPA provided that such assets were to be treated under the Criminal Code and the Code of Criminal Procedure. Section 31(2) provided also that any income unreported for the purpose of taxation was to be dealt with under tax legislation. 25. By section 34 of the CPA, until proven otherwise, it was presumed that “unlawful” or “non-work-related” income had been received where 1) the value of a person’s property manifestly exceeded the income lawfully received by him and the members of his household, or 2) the expenditure by a person and his household manifestly exceeded their lawful income. Any “unlawful” or “non-work-related” income within the meaning above, or property acquired by means thereof, was to be forfeited. The State’s claims in that regard could not lapse through prescription (section 36(2)). 26. The “unlawful” or “non-work-related” income within the meaning of the CPA was, in principle, to be established by a special regional commission, which was to submit its conclusions to the appropriate prosecution office. Where satisfied that the relevant conditions were fulfilled, the competent prosecutor was then to bring an action seeking forfeiture (sections 38, 41 and 42(1) of the CPA). Where a prosecutor was aware that a person had received “unlawful” or “non-work-related” income, he could directly bring an action for forfeiture, without a proposal to that effect by a commission (section 42(3)). 27. Any preliminary inquiries under the CPA were to be discontinued where the person voluntarily declared to the authorities any “unlawful” or “non-work-related” income and paid it, or the value of the properties acquired by means thereof, to the State budget (section 45). 28. Since 1989 the courts have examined very few actions under Chapter Three of the CPA (see, for example, Решение № 103 от 20.01.2010 на САС по гр.д. №352/2006 г., ГК, 2-ри състав, and Решение № 20 от 14.08.2012 г. на ВКС по гр. д. № 988/2010 г. IV г. о., ГК, both concerning the same case). 29. Article 97(4) of the Code of Civil Procedure, in force until 2007, stated that a claim for the establishment of a “criminal circumstance” could be filed in the framework of civil proceedings, in cases where the person could not be prosecuted or the criminal proceeding had been discontinued or stayed, for reasons such as amnesty, prescription or death of the suspected perpetrator, or where the perpetrator had not been found. A similar provision is contained in Article 124(5) of the Code of Civil Procedure currently in force. THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 30. The applicants complained under Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 that their properties had been forfeited unfairly. The Court is of the view that the complaints are most appropriately examined under Article 1 of Protocol No. 1 alone, which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Arguments of the parties 1. The Government 31. The Government contested the complaint. Without elaborating further, they were of the view that the applicants had abused their right of individual petition. 32. The Government argued that the forfeiture of unlawfully acquired property was a “common policy” of the European countries, which did not contradict the Convention. They referred to the Court’s judgments in the cases of Welch v. the United Kingdom (9 February 1995, Series A no. 307‑A), and Phillips v. the United Kingdom (no. 41087/98, ECHR 2001‑VII). 33. The Government pointed out that the case under examination did not concern the determination of criminal charges against the applicants, and that in the proceedings against them the authorities had not sought to identify any criminal conduct. 34. The Government were of the view that the forfeiture of the applicants’ property was aimed at protecting justice and equality and guaranteeing just conditions for economic initiative. They considered that it had been meant as a reaction to the “manifestation of inexplicable material prosperity” on the part of individuals who “according to the dominant opinion” had committed “grave breaches, including of a criminal nature, of the economic order established by the Constitution and the laws”. Furthermore, the Government considered that the CPA was aimed at combatting “profiting from activities which are in principle forbidden, such as tax evasion, non-payment of mandatory insurance, smuggling, corruption, trafficking in human beings and drugs, extortion, large-scale theft, and others”. It was applicable in cases where forfeiture following a conviction would be “ineffective”. 35. Lastly, the Government argued that the measures against the applicants had been proportionate, and pointed out that their property had been forfeited following adversarial judicial proceedings in which the applicants had been given the opportunity to demonstrate the lawful origin of their property. 2. The applicants 36. The applicants disagreed. They argued that the CPA did not provide sufficient protection from arbitrariness. This was so, first, because it did not specify the preconditions for opening proceedings under its Chapter Three, and did not provide for any time-limits, which meant that the authorities “could open, suspend, close and open again proceedings at will at any time”. Moreover, the CPA placed the burden of proof of the lawfulness of their income on those whose properties the authorities sought to seize, and did not indicate any reliable methods of calculating income and expenditure over a lengthy period of time: a period marked, in this case, by radical economic transition and galloping inflation. Lastly, the applicants pointed out that the CPA provided for overly “drastic” measures where “unlawful” income was identified, such as the forfeiture of all property acquired with that income. 37. The applicants argued in addition that the measures provided for by Chapter Three of the CPA served no legitimate purpose. They were not aimed at countering tax evasion, because this area was covered by existing specialised tax legislation. Their purpose was not the confiscation of proceeds of crime, seeing that in proceedings under Chapter Three the prosecution authorities were not obliged to establish that the properties to be forfeited were linked to any criminal conduct. Nor had the authorities attempted to establish any criminal conduct in the case at hand. In that connection the applicants submitted documents issued by the authorities certifying that Mr Dimitrov had never been charged with, prosecuted for or convicted of a criminal offence. 38. The applicants argued that in addition to being flawed in principle, the CPA had been applied to their case in an unjust and arbitrary manner. Despite concluding in 2002 that there was no ground to open proceedings under that Act against the first applicant and her husband, in 2004 the prosecution authorities had in fact opened new proceedings. These concerned the same period of time, dating back as early as 1990. In addition, the courts had unjustifiably refused to accept as “lawful” substantial amounts of income received by the first applicant and her husband, and had otherwise decided the case unfairly. B. The Court’s assessment 1. Admissibility 39. The Court notes that the application 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. In particular, the Court sees no reason to accept the Government’s unspecified allegations that the applicants were abusing their right of individual petition. 40. Accordingly, the application must be declared admissible. 2. Merits 41. The Court notes at the outset that the present case differs from the inadmissible case of Nedyalkov and Others v. Bulgaria ((dec.), no. 663/11, 10 September 2013), which concerned the application of different legislation adopted in 2005. In addition, in that case the applicants did not complain of forfeiture but of the freezing of alleged proceeds of crime with a view to their possible forfeiture. 42. Article 1 of Protocol No. 1 guarantees the right of property (see Marckx v. Belgium, 13 June 1979, § 63, Series A no. 31). It comprises three distinct rules: the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest (see, among others, Sporrong and Lönnroth v. Sweden, 23 September 1982, § 61, Series A no. 52). However, the three rules are not distinct in the sense of being unconnected: the second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property, and should therefore be construed in the light of the general principle enunciated in the first rule (see Lithgow and Others v. the United Kingdom, 8 July 1986, § 106, Series A no. 102). 43. It is not in dispute between the parties in the present case that the forfeiture of the applicants’ property amounted to an interference with their right to peaceful enjoyment of their possessions as protected by Article 1 of Protocol No. 1. As in other forfeiture cases (see, for example, Phillips, cited above, § 51; Saccoccia v. Austria, no. 69917/01, § 86, 18 December 2008; Bongiorno and Others v. Italy, no. 4514/07, § 42, 5 January 2010; and Paulet v. the United Kingdom, no. 6219/08, § 64, 13 May 2014), the Court is of the view that that interference falls within the scope of the second paragraph of Article 1 of Protocol No. 1, which, inter alia, allows the Contracting States to control the use of property to secure the payment of penalties. Still, this provision must be construed in the light of the general principle set out in the first sentence of the first paragraph (see, among many examples, Allan Jacobsson v. Sweden (no. 1), judgment of 25 October 1989, Series A no. 163, § 55). 44. The first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful. This means, in the first place, compliance with the relevant provisions of domestic law (see, among others, Zlínsat, spol. s r.o., v. Bulgaria, no. 57785/00, §§ 97-98, 15 June 2006). In the present case the forfeiture of the applicants’ property was provided for under the CPA. The applicants have not argued that the Act’s requirements were not met. 45. However, the requirement of lawfulness means also compatibility with the rule of law. It thus presupposes that the rules of domestic law must be sufficiently precise and foreseeable (see Hentrich v. France, 22 September 1994, § 42, Series A no. 296‑A, and Beyeler v. Italy [GC], no. 33202/96, § 109, ECHR 2000‑I), and that the law must provide a measure of legal protection against arbitrariness (see Zlínsat, spol. s r.o., cited above, § 98). 46. In that regard, the Court notes that in the case at hand the CPA provided that the State’s claims under its Chapter Three could not lapse through prescription (see paragraph 25 above), which meant that individuals being investigated under it could be required to provide evidence of the income they had received and their expenditure many years earlier and without any reasonable limitation in time. In addition, as apparent from the applicants’ case, decisions of the prosecution authorities to discontinue proceedings under Chapter Three, after establishing that their continuation was unjustified, had no binding force. In the present case, even though they concluded in 2002 that there was no legal ground for bringing an action for forfeiture against the first applicant and her husband, in 2004 the prosecution authorities opened new proceedings under Chapter Three, concerning the same people and the same period of time (see paragraphs 7‑11 above). It thus appears that, as pointed out by the applicants (see paragraph 36 above), the prosecution authorities were free to “open, suspend, close and open again proceedings at will at any time”. All this, coupled with the fact that the procedure under Chapter Three of the CPA was very rarely resorted to after 1989 (see paragraph 28 above), means that the CPA did not meet the foreseeability requirement set out in the paragraph above, which entails that a person should be able – if need be with appropriate advice – to reasonably foresee the consequences which a given action may cause (see, mutatis mutandis, Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 41, ECHR 2007‑IV). 47. In addition, the CPA was silent on what might constitute acceptable means of establishing that any income was “lawful” within its meaning at any moment of the period at issue. In the case, this led to the courts reaching conflicting conclusions as to whether the evidence presented to them was relevant and sufficient to prove as “lawful” part of the income claimed by the applicants (see paragraphs 13 and 16 above). Eventually the Court of Appeal found the income at issue unproven and thus “unlawful”, even though it had not been alleged that the first applicant and her husband had breached any legal regulation. To this was added the fact that the burden of proof in proceedings under the CPA was placed on the defendants (see paragraph 25 above); thus, the applicants had to show that the first applicant and Mr Dimitrov had received “lawful” income, without there being any clarity as to what constituted “lawful” within the meaning of the CPA. This clearly placed on the applicants an excessive burden. 48. Moreover, in the present case the applicants were required to provide evidence of the first applicant and Mr Dimitrov’s income and expenditure during a period of major economic change and galloping inflation, which, as recognised by the experts appointed by the courts in the case (see paragraph 12 above), rendered any assessment of the actual amounts received and spent very difficult. Although the parties to the proceedings, to avoid this difficulty, apparently agreed that all amounts could be calculated in United States dollars, this inevitably resulted in some uncertainty and imprecision. 49. The above circumstances could be seen as an additional indication that the applicants were not adequately protected from arbitrary action on the part of the authorities. 50. The above considerations could, in principle, suffice to lead the Court to the conclusion that the interference with the applicants’ peaceful enjoyment of their possessions which had taken place was not “lawful”, as required by Article 1 of Protocol No. 1, and thus in breach of that provision. Nevertheless, the Court wishes to also make the observations that follow. 51. Any interference with the enjoyment of the rights protected by Article 1 of Protocol No. 1 must also pursue a legitimate aim, as the principle of a “fair balance” inherent in that provision presupposes the existence of a general interest of the community (see Ališić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the former Yugoslav Republic of Macedonia [GC], no. 60642/08, § 105, ECHR 2014). However, even in view of the wide margin of appreciation enjoyed by States in implementing social and economic policies and thus in determining that general interest, as recognised by the Court on numerous occasions (see, for example, Draon v. France [GC], no. 1513/03, § 76, 6 October 2005; J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v. the United Kingdom [GC], no. 44302/02, § 71, ECHR 2007‑III; Berger‑Krall and Others v. Slovenia, no. 14717/04, § 192, 12 June 2014; and Ališić and Others, cited above, § 106), the Court fails to perceive a legitimate aim pursued by the legislation applicable in the present case. 52. The Government argued that the provisions of Chapter Three of the CPA aimed to protect justice and equality and to guarantee just conditions for economic activity (see paragraph 34 above). However, the Court notes that these aims are too general and vague. Moreover, it is of the view that even if, at the time of its adoption in 1973, the legislation at issue could have pursued aims such as social egalitarianism, these can only with difficulty be justified after 1989, under a political system aiming to protect human rights and encouraging economic entrepreneurship. 53. The Government seemed to argue next that Chapter Three of the CPA was intended to allow the forfeiture of proceeds of crime, as they pointed out that it was aimed at combatting “profiting from activities which are in principle forbidden”, such as certain criminal offences (see paragraph 34 above). However, the Court cannot accept this argument. It observes, first, that sections 31(2) and 42(4) of the CPA stipulated expressly that the procedures provided for in Chapter Three were inapplicable to proceeds of crime, as these were to be treated under the Criminal Code and the Code of Criminal Procedure (see paragraph 24 above). Moreover, it is significant that at no point during the domestic proceedings against the applicants did the authorities attempt to establish that the properties whose forfeiture was being sought had been acquired through proceeds of crime. This point was also indicated by the Government (see paragraph 33 above). 54. The Government also seemed to claim that the procedure under Chapter Three of the CPA was aimed at combatting tax evasion (see paragraph 34 above). Once again, the Court notes that this was expressly ruled out by the CPA, which stated, again in section 31(2), that the matter was to be treated under the applicable tax legislation (see paragraph 24 above). It is also noteworthy that that tax legislation was applied to the first applicant and her husband, as the tax authorities initiated probes into their incomes and in two decisions of 23 June and 26 November 2004 established the amount of tax due from them (see paragraph 21 above). Accordingly, in so far as it could be argued that the first applicant and her husband had evaded the payment of taxes, the problem was dealt with under the applicable tax legislation, and the proceedings against the applicants under the CPA had nothing to do with that matter. 55. The Government have not referred to any other legitimate aim in the public interest possibly served by Chapter Three of the CPA, and the Court fails to perceive any. 56. The above is sufficient to conclude in the case that the requirements of Article 1 of Protocol No. 1 have not been met, and that accordingly there has been a violation of that provision. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 57. 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. Pecuniary damage 58. Under that head, the applicants claimed the value of their forfeited properties. They presented the reports of experts appointed in the domestic judicial proceedings, assessing, as of 2005, the value of the flat in Varna at BGN 71,800, the equivalent of approximately 36,630 euros (EUR), and the value of the properties in Sofia at BGN 601,400, the equivalent of EUR 306,840. Accordingly, the applicants claimed these amounts. As to the remaining properties, namely a holiday house in Borovets and a car, the applicants claimed the amount they had had to pay to the State budget for their monetary value, namely BGN 178,815, the equivalent of EUR 91,230, which also included the sums due for court fees and expenses (see paragraph 20 above). 59. The Government considered the claims above unjustified and urged the Court to dismiss them entirely. 60. The Court is of the view that the question of the application of Article 41, in so far as it concerns pecuniary damage, is not ready for decision (Rule 75 § 1 of the Rules of Court). Accordingly, the Court reserves that question and the further procedure and invites the Government and the applicants, within four months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, to submit their observations on the matter and, in particular, to inform it of any agreement that they may reach. B. Non-pecuniary damage 61. The applicants claimed EUR 8,000 jointly under this head. They argued that they had suffered pain, anguish and frustration as a result of the violation of their rights. 62. The Government considered that claim exaggerated. 63. The Court is of the view that the applicants must have suffered non-pecuniary damage as a result of the forfeiture of their property, which breached their right to peaceful enjoyment of their possessions. Judging on the basis of equity, the Court considers it reasonable to award the two of them jointly EUR 3,000 under that head. To this should be added any tax that may be chargeable. C. Costs and expenses 64. Lastly, the applicants claimed EUR 7,800 for seventy-eight hours of work performed by their representatives before the Court, Mr Grozev and Ms Dobreva, at an hourly rate of EUR 100. In support of this claim they presented a contract for legal representation and a time sheet. The applicants requested that any sum awarded under this head be transferred directly into the bank account of Mr Grozev. 65. As noted in paragraph 58 above, the applicants also claimed the fees and expenses they had been ordered to pay in the domestic proceedings. These amounted to BGN 14,019.34, the equivalent of EUR 7,150 (see paragraph 20 above). 66. The Government challenged the amount claimed for legal representation, and in particular the number of hours spent by the applicant’s lawyers on the case. 67. 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. 68. In the present case, the Court is of the view that the expenses for legal representation before the Court were actually and necessarily incurred. However, it considers the claim exaggerated, and finds it reasonable to award the applicants EUR 5,000 under this head. As requested by the applicants, this sum is to be transferred directly into the bank account of Mr Grozev. 69. The Court considers that the applicants’ expenses in the domestic proceedings (see paragraph 65 above) were also actually and necessarily incurred, as in these proceedings the applicants were trying to prevent the violation of their rights found in the case. Accordingly, the Court awards the applicants the amount paid by them, namely EUR 7,150, in full. 70. To the above amounts should be added any tax that may be chargeable to the applicants. C. Default interest 71. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 1 of Protocol No. 1; 3. Holds that the question of the application of Article 41, in so far as it concerns the claim for pecuniary damage, is not ready for decision; accordingly, (a) reserves the said question; (b) invites the Government and the applicants to submit, within four months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, their written observations on the matter and to notify the Court of any agreement that they may reach; (c) reserves the further procedure and delegates to the President of the Chamber the power to fix the same if need be; 4. Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement: (i) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 12,150 (twelve thousand one hundred and fifty euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, EUR 5,000 (five thousand euros) of which to be transferred directly into the bank account of Mr Grozev; (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’ claims for non-pecuniary damage and costs and expenses. Done in English, and notified in writing on 3 March 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Françoise Elens-PassosGuido RaimondiRegistrarPresident

THIRD SECTION CASE OF BENEDEJČIČ AND TRATNIK v. SLOVENIA (Application no. 39178/02) JUDGMENT STRASBOURG 27 April 2006 FINAL 27/07/2006 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 Benedejčič and Tratnik v. Slovenia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrJ. Hedigan, President,MrB.M. Zupančič,MrL. Caflisch,MrV. Zagrebelsky,MrE. Myjer,MrDavid Thór Björgvinsson,MrsI. Ziemele, judges,and Mr V. Berger, Section Registrar, Having deliberated in private on 6 April 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 39178/02) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Slovenian nationals, Mrs Štefka Benedejčič and Mrs Jožefa Tratnik (“the applicants”), on 22 October 2002. 2. The applicants were represented by the Verstovšek lawyers. The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič, State Attorney-General. 3. The applicants alleged under Article 6 § 1 of the Convention that the length of the proceedings before the domestic courts to which they were a party was excessive. In substance, they also complained about the lack of an effective domestic remedy in respect of the excessive length of the proceedings (Article 13 of the Convention). 4. On 15 September 2004 the Court decided to communicate the complaints concerning the length of the proceedings and the lack of remedies in that respect to the Government. Applying Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS 5. The applicants were born in 1913 and 1919 respectively and live in Šentjur and Pečovnik respectively. 6. On 22 March 1996 the applicants instituted civil proceedings against their sister’s niece, E. L., in the Celje District Court (Okrožno sodišče v Celju), claiming the invalidity of their sister’s written will and seeking a recovery of the amount of 1,786,000 Slovenian tolars (approximately 7,450 euros). Between 29 August 1997 and 25 October 2002 the applicant lodged eight preliminary written submissions. On 28 September 2001 and 7 February 2002 they made requests that a date be set for a hearing. Of the six hearings held between 4 September 1997 and 21 November 2002, none was adjured at the applicants’ request. During the proceedings, the court appointed a graphologist and a financial expert. It also made several inquires into a financial situation of the applicants’ deceased sister and examined the second applicant at her home and the first applicant at the Home for the Eldery. At the last hearing, the court decided to deliver a written judgment. The judgment, rejecting the applicants’ claim, was served on the applicants on 23 January 2003. 7. On 31 January 2003 the applicants appealed to the Celje Higher Court (Višje sodišče v Celju). E. L. cross-appealed. On 30 September 2004 the court dismissed both appeals. The judgment was served on the applicants on 13 October 2004. 8. On 11 November 2004 the applicants lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče). On 16 February 2006 the court dismissed the applicant’s appeal. The decision was served on the applicant on 17 March 2006. THE LAW I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION 9. The applicants complained about the excessive length of the proceedings. They relied on Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 10. In substance, the applicants further complained that the remedies available for excessive legal proceedings in Slovenia were ineffective. Article 13 of the Convention reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 11. The Government pleaded non-exhaustion of domestic remedies. 12. The applicants contested that argument, claiming that the remedies available were not effective. 13. The Court notes that the present application is similar to the cases of Belinger and Lukenda (Belinger v. Slovenia (dec.), no. 42320/98, 2 October 2001, and Lukenda v. Slovenia, no. 23032/02, 6 October 2005). In those cases the Court dismissed the Government’s objection of non-exhaustion of domestic remedies because it found that the legal remedies at the applicants’ disposal were ineffective. The Court recalls its findings in the Lukenda judgment that the violation of the right to a trial within a reasonable time is a systemic problem resulting from inadequate legislation and inefficiency in the administration of justice. 14. As regards the instant case, the Court finds that the Government have not submitted any convincing arguments which would require the Court to distinguish it from its established case-law. 15. The Court further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Article 6 § 1 16. The period to be taken into consideration began on 22 March 1996, the day the applicants instituted proceedings with the Celje District Court, and ended on 17 March 2006, the day the Supreme Court’s decision was served on the applicant. The relevant period has therefore lasted about ten years for three levels of jurisdiction. 17. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 18. Having examined all the material submitted to it, and having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable-time” requirement. There has accordingly been a breach of Article 6 § 1. 2. Article 13 19. The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI). It notes that the objections and arguments put forward by the Government have been rejected in earlier cases (see Lukenda, cited above) and sees no reason to reach a different conclusion in the present case. 20. Accordingly, the Court considers that in the present case there has been a violation of Article 13 on account of the lack of a remedy under domestic law whereby the applicants could have obtained a ruling upholding their right to have their case heard within a reasonable time, as set forth in Article 6 § 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 21. 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 22. Each of the applicants claimed 10,000 euros (EUR) in respect of non-pecuniary damage. 23. The Government contested the claim. 24. The Court considers that the applicants must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards each of the applicants EUR 6,400 under that head. B. Costs and expenses 25. The applicants also claimed approximately EUR 2,160 for the costs and expenses incurred before the Court. 26. The Government argued that the claim was too high. 27. According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. The Court also notes that the applicants’ lawyers, who also represented the applicant in Lukenda (cited above), lodged nearly 400 applications which, apart from the facts, are essentially the same as this one. Accordingly, 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 applicants the sum of EUR 1,000 for the proceedings before the Court. C. Default interest 28. 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 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 13 of the Convention; 4. Holds (a) that the respondent State is to pay each of the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 6,400 (six thousand four hundred euros) in respect of non-pecuniary damage and to the applicants jointly EUR 1,000 (one thousand euros) in respect of costs and expenses, plus any tax that may be chargeable; (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 applicant’s claim for just satisfaction. Done in English, and notified in writing on 27 April 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Vincent BergerJohn HediganRegistrarPresident

FIRST SECTION CASE OF KHISMATULLIN v. RUSSIA (Application no. 33469/06) JUDGMENT STRASBOURG 11 December 2014 FINAL 11/03/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of of Khismatullin v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Isabelle Berro-Lefèvre, President,Elisabeth Steiner,Khanlar Hajiyev,Mirjana Lazarova Trajkovska,Julia Laffranque,Paulo Pinto de Albuquerque,Dmitry Dedov, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 18 November 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 33469/06) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Eduard Shamilevich Khismatullin (“the applicant”), on 19 June 2006. 2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3. The applicant alleged, in particular, that he had been subjected to ill‑treatment in police custody and that the domestic authorities had failed to carry out an effective investigation, and that he had neither attended nor been represented at the appeal hearing in his criminal case. 4. On 10 November 2010 the above complaints were communicated to the Government under Articles 3 and 6 §§ 1 and 3 (c) of the Convention. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1974 and is currently serving a prison sentence in medical penal institution LIU-58, Sverdlovsk Region. A. The applicant’s arrest and alleged ill-treatment 6. On 23 April 2005 the applicant was arrested on suspicion of murder. He was taken to the police station, where he was allegedly ill-treated by police officers and confessed to murder. 7. On 24 April 2005 the applicant was subjected to a forensic medical examination, which recorded two bruises under his left and right eyes measuring 1 x 2 cm, an abrasion on the middle finger of the left hand measuring 0.5 x 0.8 cm, and an abrasion on the back of the right forearm measuring 0.2 x 2 cm. The expert concluded that the bruises under the eyes could have been inflicted three to five days prior to the examination, and the abrasions of the upper limbs could have appeared one to two days prior to the examination. 8. On the same day the record of the applicant’s arrest was drawn up. The applicant was questioned as a suspect and, allegedly for fear of further beatings, confirmed his previous confession. He was placed in a temporary detention unit. The unit’s medical records show that the applicant had a bruise under his left eye when admitted. They further indicate that the applicant was otherwise in good health. 9. On 26 April 2005 the applicant complained of chest pain. An ambulance was called, and he was found to have a bruised breastbone. 10. On 29 April 2005 the applicant was allegedly beaten again by the police officers in an attempt to make him confirm his previous statements to the investigator. 11. On 5 May 2005 the applicant again complained of chest pain. He was taken to Ozersk Town Hospital. An X-ray examination showed a breastbone fracture. 12. On 6 May 2005 the applicant was transferred to remand prison IZ‑74/3, Chelyabinsk. The facility doctor who examined the applicant on admission entered the breastbone fracture diagnosis of 5 May 2005 in the applicant’s medical records. B. The applicant’s conviction and subsequent developments 13. On 10 November 2005 Ozersk Town Court, Chelyabinsk Region, convicted the applicant, under Article 111 § 4 of the Criminal Code, of intentional infliction of grievous bodily harm on V., causing his death by reckless conduct. The applicant was sentenced to eleven years’ imprisonment. The applicant was represented by a legal-aid lawyer at the trial. 14. The applicant appealed. He asked the appeal court to allow him to attend the appeal hearing in his case, and also expressed the wish to be represented by a lawyer. 15. On 27 April 2006 Chelyabinsk Regional Court upheld the judgment on appeal. The applicant was present at the appeal hearing. He was, however, unrepresented. 16. On 16 March 2011 the Presidium of Chelyabinsk Regional Court granted an application for supervisory review by the Chelyabinsk Region Prosecutor and quashed the appeal decision of 27 April 2006. The Presidium found that the applicant’s right to legal representation had been violated in the appeal hearing and remitted the case for a fresh examination before the appellate court. 17. On 21 April 2011 Chelyabinsk Regional Court held a new appeal hearing in the applicant’s criminal case, with the applicant taking part (by video link) and in the presence of his legal-aid lawyer. The Regional Court upheld the applicant’s conviction on appeal and reduced his sentence to ten years and six months’ imprisonment. C. Pre-investigation inquiry into the applicant’s allegations of ill‑treatment 18. Meanwhile, in December 2005 the applicant complained of ill‑treatment to the Ozersk Town Prosecutor’s Office. 19. On 26 January 2006 investigator Ch. of the Prosecutor’s Office, relying on Article 24 § 1 (2) of the Code of Criminal Procedure, refused to institute criminal proceedings against the police officers complained against, for lack of evidence that a crime had been committed. The investigator relied on statements by police officer P. denying that the applicant had been assaulted, extracts from the medical records of the temporary detention unit showing the entries of 24 April, 26 April and 5 May 2005, the applicant’s statements of 2 May 2005 in which he alleged that the bruises had been inflicted during a fight with some teenagers in April 2005, and references to the applicant’s failure to mention the alleged ill-treatment during the examination of the issue of his detention, when he was questioned as a suspect, or when charges were brought against him. 20. On 24 March 2006 the Ozersk Town Prosecutor quashed that decision and ordered an additional pre-investigation inquiry. 21. On 27 March, 17 April and 29 June 2006 and 21 June 2007 the investigator again refused to open a criminal case in connection with the applicant’s allegations of ill-treatment. However, on 13 April and 26 June 2006 and 9 June and 2 July 2007 respectively the supervising prosecutor quashed those decisions as unfounded and ordered additional pre‑investigation inquiries. 22. On 6 July 2007 chief investigator P. of the Ozersk Town Prosecutor’s Office refused for the sixth time to order the institution of criminal proceedings, and concluded that the applicant had sustained his injuries prior to his arrest. This decision was based on the following evidence: - the applicant’s explanations of June 2006 (see paragraph 23 below); - explanations by the chief of police Mo., police officers P. and Sh., and the deputy chief of police Yar., who denied having subjected the applicant to any violence; - explanations by prosecutor’s assistant B. and investigator Ma.; - explanations by officers of the temporary detention unit Kh., G. and Akh.; - extracts from the temporary detention unit’s logbooks, including its medical logbook; - the X-ray examinations logbook of Ozersk Town Hospital; - the report of the applicant’s forensic medical examination; - explanations by ambulance doctor S., who examined the applicant at the temporary detention unit on 26 April 2005, and by hospital doctor B., who examined the applicant at the hospital on 5 May 2005; - the applicant’s statements of 24 April-2 May 2005 taken from his criminal file, to the effect that he had received the injuries prior to the arrest during a fight with some teenagers and that he had no complaints against the police officers or the officers of the temporary detention unit in connection with those injuries; - explanations by forensic medical expert Mos.; - documents from the applicant’s criminal file, including the records of his questioning of 24 April, 29 April and 19 July 2005, in which the applicant submitted that he had attacked V. (the victim of the crime of which the applicant had been convicted) in self-defence; - the applicant’s statements made during the trial and his complaints to the prosecutor and the investigator to the effect that he had sustained his breastbone fracture as a result of acts of violence by V. 23. It followed from the applicant’s explanations, in particular, that in early April 2005 he had had a fight with some unidentified teenagers, as a result of which he had received a bruise under his left eye. On 21 April 2005 V. had kicked the applicant twice in the chest area and twice in the face, as a result of which he had had a bruise under his right eye and felt pain in his chest. On 23 April 2005 the applicant was arrested and taken to the police station, where one police officer hit him with something heavy on the nape of the neck and another kicked him in the chest area, as a result of which the applicant felt pain in his chest. On 24 April 2005 one of the police officers hit him on the head at least twice with a 1.5-litre plastic bottle filled with water, which did not result in any injuries. On 29 April 2005 in the investigations office of the temporary detention unit one of the police officers had knocked the applicant to the floor and kicked him at least three or four times on the left side and twice in the stomach and chest. These actions did not lead to any injuries. The applicant could not clarify whether his breastbone fracture had been the result of the actions of V. or of the police officers. 24. On 8 November 2007 the Ozersk Town Prosecutor found the decision of 6 July 2007 lawful and justified. 25. On 19 March 2008 Ozersk Town Court, Chelyabinsk Region, found the pre-investigation inquiry into the applicant’s allegations to be complete and unbiased, and the decisions of 6 July and 8 November 2007 lawful and justified. 26. On 24 June 2008 Chelyabinsk Regional Court upheld the decision of 19 March 2008 on appeal. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Prohibition of torture and other ill-treatment 27. The relevant provisions of the Constitution of the Russian Federation read as follows: Article 18 “Human and civil rights and freedoms shall be directly enforced. They shall determine the meaning, content and application of laws and the activities of the legislative and executive authorities, and of local self-government, and shall be ensured by the administration of justice.” Article 21 “1. Human dignity shall be protected by the State. Nothing may serve as a basis for derogation therefrom. 2. No one shall be subjected to torture, violence or other severe or degrading treatment or punishment ...” 28. Article 9 of the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, “the CCrP”) prohibits violence, torture or any other cruel or degrading treatment of participants in criminal proceedings. 29. Article 286 § 3 of the Criminal Code of the Russian Federation provides that actions by a public official which clearly exceed his authority and entail a substantial violation of an individual’s rights and lawful interests, committed with violence or the threat of violence, are punishable by three to ten years’ imprisonment, with a prohibition on occupying certain posts or engaging in certain activities for a period of three years. B. Procedure for examining a criminal complaint 1. Pre-investigation inquiry 30. The CCrP, as in force at the material time, provided as follows: Article 140. Grounds for opening a criminal case “1. A criminal case may be opened in the event of: a) a complaint of a crime ... 2. Sufficient data disclosing elements of a crime shall serve as grounds for opening a criminal case.” Article 144. Procedure for examining a report of a crime “1. An inquiry officer, inquiry agency, investigator, or head of an investigation unit shall accept and examine every report of a crime ... and shall take a decision on that report ... no later than three days after the filing of the report ... [having] the right to order that the examination of documents or inspection be performed with the participation of experts ... 3. A head of an investigation unit or head of an inquiry agency ... may extend the time period specified in paragraph (1) of this Article to up to ten days or, where the examination of documents or inspections are to be performed, up to thirty days ...” Article 145. Decisions to be taken following examination of a report of a crime “1. An inquiry officer, inquiry agency, investigator or head of an investigation unit shall issue one of the following decisions as a result of the examination of a report of a crime: 1) to open a criminal case, in accordance with the procedure established by Article 146 of the present Code; 2) to refuse to open a criminal case; 3) to transfer the report of a crime [to a competent investigating authority] with the relevant jurisdiction ...” Article 148. Refusal to open a criminal case “1. In the event of the absence of grounds for opening a criminal case, a head of an investigation unit, an investigator, inquiry agency or inquiry officer shall issue a decision refusing to open a criminal case ... 5. A refusal to open a criminal case may be appealed against to a prosecutor, head of an investigation unit or court in accordance with the procedures established by Articles 124 and 125 of the present Code. 6. ... Having declared a refusal by an investigator ... to open a criminal case unlawful or unfounded, a head of a relevant investigation unit shall set aside the decision and open a criminal case, or remit the materials for additional examination together with his or her instructions fixing a deadline for their execution. 7. Having declared a refusal to open a criminal case unlawful or unfounded, a judge shall issue a decision to that effect and transmit it for execution to a head of an investigation unit ... and duly notify the applicant.” Article 149. Referral of a criminal case “After taking a decision to open a criminal case ...” 2) an investigator shall start a preliminary investigation ...” Article 125. Judicial examination of complaints “1. Decisions of an inquiry officer, investigator, or head of an investigation unit refusing to open a criminal case ... or any other decisions and acts (failure to act) which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede citizens’ access to justice, may be appealed against to a district court ... 3. A judge shall examine the legality and the grounds of the impugned decisions or acts ... within five days of receipt of the complaint ... 5. Following examination of the complaint, the judge shall issue one of the following decisions: 1) to declare the decisions or acts (failure to act) of the official unlawful or unfounded and order the official to rectify the breach committed; 2) to dismiss the applicant’s complaint ...” 31. A criminal case should not be opened or should be discontinued if the alleged offence has not been committed (Article 24 § 1 (1) of the CCrP) or if the constituent elements of a criminal offence are missing (Article 24 § 1 (2) of the CCrP). 2. Preliminary investigation 32. Preliminary investigations are regulated by Section VIII (Articles 150-226) of the CCrP. Investigative measures to establish the facts of a criminal case and collect evidence, which can be undertaken in the course of a preliminary investigation, include, inter alia, the questioning of a suspect, an accused, a victim or a witness; confrontation between persons whose statements are contradictory; on-site verification of statements; identification of a person or object; search of persons and premises; seizure of items and documents; phone‑tapping; and reconstruction of acts or circumstances. If, on completion of a preliminary investigation, there is sufficient evidence to support charges against an accused, the investigating authority must prepare an indictment which, subject to prior approval by a prosecutor, is then forwarded to a court for trial. 33. Investigative measures such as the examination of a crime scene, examination of a dead body and physical examination of a suspect, an accused, a victim or a witness may be carried out, if necessary, before a criminal case is opened (Articles 176 § 2, 178 § 4 and 179 § 1 of the CCrP). C. Legal representation 34. The CCrP, as in force at the material time, provided as follows: Article 51 “1. Participation of legal counsel in criminal proceedings is mandatory if: 1) the suspect or the accused has not waived the right to legal representation in accordance with Article 52 of this Code ... 3. In the circumstances provided for by paragraph 1 above, unless counsel is appointed by the suspect or the accused or his lawful representative, or other persons at the request or with the consent of the suspect or the accused, it is incumbent on the investigator, the prosecutor or the court to ensure the participation of legal counsel in the proceedings.” Article 52 “1. A suspect or an accused may refuse legal representation at any stage of criminal proceedings. Such a waiver may be accepted only if initiated by the suspect or the accused. The waiver must be declared in writing, and must be recorded in the official record of the corresponding procedural step ...“ 35. The appellate court examines appeals with a view to verifying the lawfulness, validity and fairness of the judgments. It may directly examine evidence, including additional material submitted by the parties (Articles 373 and 377 §§ 4 and 5 of the CCrP). 36. The judge is to set the date, time and place of the hearing after receiving the criminal case file and the statements of appeal. The parties must be given this information no later than fourteen days before the hearing is scheduled to take place. The court determines whether the prisoner should be summoned to attend the hearing. If the prisoner has expressed the wish to be present at the examination of his appeal, he has the right to attend in person or to state his case via video link. It is the court which decides how he is to take part in the hearing (Article 376 of the CCrP). 37. Examining the compatibility of Article 51 of the CCrP with the Russian Constitution, the Constitutional Court ruled as follows (decision no. 497-O of 18 December 2003): “Article 51 § 1 of the Code of Criminal Procedure, which describes the circumstances in which the participation of defence counsel is mandatory, does not contain any indication that its requirements are not applicable in appeal proceedings or that the prisoner’s right to legal representation in such proceedings may be restricted.” 38. That position was subsequently confirmed and developed in seven decisions delivered by the Constitutional Court on 8 February 2007. The court found that free legal representation for the purpose of appellate proceedings should be provided on the same basis as representation in earlier stages of proceedings, and that it was mandatory in the situations listed in Article 51. It further highlighted the courts’ obligation to ensure the participation of defence counsel in appeal proceedings. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 39. The applicant complained that he had sustained a breastbone fracture at the hands of the police and that there had been no effective investigation into his allegation of ill‑treatment. He relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 40. The Government submitted that the domestic investigating authorities had conducted a thorough inquiry into the applicant’s allegations and had taken a decision to refuse to institute criminal proceedings in the absence of proof “beyond reasonable doubt” that the applicant had sustained his injuries at the hands of the police. The domestic court reviewed the conclusions reached by the investigating authorities and found them lawful. In such circumstances, the Government concluded that there had been no breach of Article 3 of the Convention, under either its substantive or its procedural heads. 41. The applicant maintained his complaint. A. Admissibility 42. 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 State’s obligation to conduct an effective investigation 43. The Court reiterates that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. That investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice, and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000‑IV). 44. The investigation into serious allegations of ill-treatment must be both prompt and thorough. The authorities must always make a serious attempt to find out what happened, and should not rely on hasty or ill‑founded conclusions to close their investigation or as the basis of their decisions. They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard (see Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, § 322, ECHR 2014 (extracts), and Kopylov v. Russia, no. 3933/04, § 133, 29 July 2010). Thus, the mere fact that appropriate steps were not taken to reduce the risk of collusion between alleged perpetrators amounts to a significant shortcoming in the adequacy of the investigation (see, mutatis mutandis, Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 330, ECHR 2007‑II, and Turluyeva v. Russia, no. 63638/09, § 107, 20 June 2013). Furthermore, the investigation must be independent, impartial and subject to public scrutiny (see Mesut Deniz v. Turkey, no. 36716/07, § 52, 5 November 2013). It should result in a reasoned decision to reassure a concerned public that the rule of law has been respected (see, mutatis mutandis, Kelly and Others v. the United Kingdom, no. 30054/96, § 118, 4 May 2001). 45. Turning to the circumstances of the present case, the Court observes that in December 2005 the applicant complained to the Prosecutor’s Office that while in police custody between 23 April and 6 May 2005 he was subjected to ill-treatment causing him to sustain a fractured breastbone. The existence of the injury in question was confirmed by an X-ray examination on 5 May 2005 (see paragraph 11 above). The applicant’s claim was therefore shown to be “arguable”, and the domestic authorities were placed under an obligation to conduct an effective investigation satisfying the above requirements of Article 3 of the Convention. 46. The Court notes that in the period between January 2006 and July 2007 the domestic authorities carried out a “pre‑investigation inquiry” into the applicant’s complaint under Article 144 of the CCrP (проверка по заявлению о преступлении). During this period, which amounted to approximately eighteen months, six decisions were taken by the domestic authorities refusing the institution of criminal proceedings against police officers for lack of evidence that a crime had been committed. All these decisions, except the last one, were quashed by the supervising prosecutor as unfounded, and additional pre-investigation inquiries were ordered. As a result of its refusal to open a criminal case, the domestic investigating authority has therefore never conducted a preliminary investigation into the applicant’s alleged ill-treatment, that is, a fully-fledged criminal investigation in which the whole range of investigative measures are carried out, such as questioning, confrontation and identification parade (see paragraph 32 above). 47. The Court observes that it has recently found in the case of Lyapin v. Russia (no. 46956/09, 24 July 2014) that the domestic authorities’ refusal to open a criminal case in respect of the applicant’s credible allegations of serious ill-treatment in police custody amounted to a failure to carry out an effective investigation, as required by Article 3 of the Convention. In that case, having examined the scope of “pre-investigation inquiry” under the Russian law on criminal procedure, the Court has found, in particular, that a “pre-investigation inquiry” alone (if not followed by a “preliminary investigation”) is not sufficient to establish the facts of the case, in particular, the identity of the alleged perpetrators, and is not capable of leading to the punishment of those responsible for the alleged ill‑treatment, since the opening of a criminal case and a criminal investigation are prerequisites for bringing charges against the alleged perpetrators, which may then be examined by a court (see Lyapin, cited above, §§ 128-40). 48. The Court considers that the Court’s findings in the above case are applicable to the case at hand. It concludes, therefore, that the refusal to open a criminal case in respect of the applicant’s credible allegations that he had sustained a fractured breastbone at the hands of the police amounted to a failure to carry out an effective investigation, as required by Article 3. This conclusion makes it unnecessary for the Court to examine in detail the many rounds of pre‑investigation inquiries conducted in the applicant’s case with a view to identifying specific deficiencies and omissions on the part of the investigating authority. 49. In view of the foregoing, the Court concludes that there has been a violation of Article 3 of the Convention under its procedural aspect. 2. The applicant’s alleged ill-treatment 50. 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 Kudła v. Poland [GC], no. 30210/96, § 90, ECHR 2000‑XI). 51. In order for ill-treatment to fall within the scope of Article 3 it must attain a minimum level of severity. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25). 52. Where allegations are made under Article 3 of the Convention the Court must apply a particularly thorough scrutiny. Where domestic proceedings have taken place, however, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them. Although the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (see Gäfgen v. Germany [GC], no. 22978/05, § 93, ECHR 2010). 53. In assessing the evidence on which to base a decision as to whether there has been a violation of Article 3, the Court adopts the standard of proof “beyond reasonable doubt”. However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006‑IX). 54. Where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 (see Ribitsch v. Austria, 4 December 1995, § 34, Series A no. 336, and Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999‑V). Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000‑VII; and also Lyapin, cited above, § 113; Oleg Nikitin v. Russia, no. 36410/02, § 45, 9 October 2008; Gladyshev v. Russia, no. 2807/04, § 52, 30 July 2009; and Alchagin v. Russia, no. 20212/05, § 53, 17 January 2012). 55. Turning to the circumstances of the present case, the Court observes that on 24 April 2005, the day after the applicant’s arrest, the applicant was found to have bruises under his eyes and abrasions on his finger and forearm. Shortly afterwards, on 26 April 2005 the ambulance medic who examined the applicant at the temporary detention unit diagnosed a bruised breastbone, and on 5 May 2005 an X-ray examination showed that the applicant had a breastbone fracture (see paragraphs 7, 9 and 11 above). 56. The Court considers that the applicant’s allegations of ill-treatment by the police, supported by the above medical evidence, required the domestic authorities to provide a satisfactory and convincing explanation as to how those injuries could have originated. 57. The Court notes that, having conducted a pre-investigation inquiry, the investigation authority arrived at the conclusion that the injuries had been inflicted on the applicant prior to his arrest, that is, before he had been taken to the police station. 58. The Court observes the inconsistencies in the applicant’s versions of events recounted during the criminal proceedings against him and during the pre-investigation inquiry into his allegations of ill-treatment, in particular regarding the infliction of the breastbone fracture. Namely, up until November 2005 when the trial court found the applicant guilty, the applicant held to the version that he had sustained his breastbone fracture as a result of acts of violence by V. (the victim of the crime of which the applicant had been convicted), whom he had attacked in self-defence (see paragraphs 13, 22 and 23 above). Later on, however, in December 2005, that is almost eight months after the alleged beatings, the applicant complained to the prosecutor’s office that his breastbone fracture had been caused as a result of ill-treatment by the police (see paragraph 18 above). Even in the course of the pre-investigation inquiry into the applicant’s allegations of ill-treatment the latter’s statements had lacked sufficient clarity: the applicant had been unable to explain whether his breastbone fracture had been the result of the actions of V. or of the police officers (see paragraph 23 above). The Court further observes the absence of any evidence as to the possible time of infliction of breastbone fracture. 59. The Court is therefore unable to exclude either the Government’s or the applicant’s account of events. Indeed, the applicant’s breastbone fracture could have been inflicted either before the applicant’s arrest, as alleged by the Government, or as a result of the use of excessive force by the police, as alleged by the applicant. 60. In the light of the foregoing, the Court is unable to conclude “beyond reasonable doubt” that the police subjected the applicant to any form of treatment prohibited by Article 3 of the Convention, as alleged by him. Accordingly, the Court finds that there has been no violation of Article 3 of the Convention in its substantive aspect. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 61. The applicant complained that the Chelyabinsk Regional Court had failed to ensure his and his legal counsel’s presence at the appeal hearing in his criminal case on 27 April 2006. The Court considers that this complaint falls within the ambit of Article 6 §§ 1 and 3 (c) of the Convention, which provides as follows: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by a ... tribunal ... 3. Everyone charged with a criminal offence has the following minimum rights ... (c) to defend himself in person or through legal assistance of his own choosing ...” 62. The Government noted that the appeal hearing of 27 April 2006 took place in the presence of the applicant, but in the absence of legal-aid counsel. Relying on Articles 51 and 52 of the Code of Criminal Procedure, the decision of the Constitutional Court no. 497-O of 18 December 2003 and the decisions of the Constitutional Court of 8 February 2007 (see paragraphs 34, 37 and 38 above), the Government acknowledged that the absence of the applicant’s legal-aid counsel from the hearing of the case on appeal amounted to a violation of the applicant’s right to legal representation. They considered, however, that this violation had subsequently been remedied by the judicial decisions of 16 March and 21 April 2011 of the Chelyabinsk Regional Court Presidium and Chelyabinsk Regional Court respectively. In particular, the new appeal hearing of 21 April 2011 had taken place with the participation of both the applicant (by video link) and his legal-aid counsel, and the appeal court carefully examined the arguments put forward by the applicant and reduced the applicant’s sentence to ten years and six months’ imprisonment. The Government concluded therefore that the applicant could no longer claim to be a victim. 63. The applicant expressed dissatisfaction with the outcome of the new appeal hearing of 21 April 2011. 64. The Court reiterates that by virtue of Article 34 of the Convention, “the Court may receive applications from any person ... claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto ...” The question whether or not the applicant can claim to be a victim of the violation alleged is relevant at all stages of the proceedings under the Convention (see Timoshin v. Russia (dec.), no. 17279/05, 17 May 2011). 65. The Court reiterates further that an applicant may lose his victim status if two conditions are met: first, the authorities must have acknowledged, either expressly or in substance, the breach of the Convention, and second, they must have afforded redress for it. The alleged loss of the applicant’s victim status involves an examination of the nature of the right in issue, the reasons advanced by the national authorities in their decision, and the persistence of adverse consequences for the applicant after the decision. The appropriateness and sufficiency of redress depend on the nature of the violation complained of by the applicant (see Sakhnovskiy v. Russia [GC], no. 21272/03, §§ 67 and 70, 2 November 2010). 66. Turning to the circumstances of the present case, the Court observes that by its decision of 16 March 2011 the Presidium of the Regional Court explicitly acknowledged the infringement of the applicant’s right to legal representation in the appeal proceedings and ordered a fresh appeal hearing (see paragraph 16 above). The latter was held on 21 April 2011. The appeal court appointed legal-aid counsel for the applicant, and those services were accepted. Both the applicant and his counsel participated in the hearing. By its fresh judgment, the appeal court reduced the applicant’s sentence. The applicant did not complain before the Court that the legal assistance provided to him at the appeal hearing of 21 April 2011 had been ineffective or otherwise in breach of the Convention (see Timoshin, cited above; Lozhkin v. Russia (dec.), no. 16384/08, 22 October 2013; and, by contrast, Sakhnovskiy, cited above, §§ 99-109). The Court considers therefore that the national authorities have acknowledged, and then afforded redress for, the alleged breach of the Convention. 67. It follows that the applicant can no longer claim to be a “victim” of the alleged violation of Article 6 §§ 1 and 3 (c) of the Convention within the meaning of Article 34 of the Convention, and that this part of the application must be rejected pursuant to Articles 34 and 35 §§ 3 (a) and 4. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 68. Lastly, the applicant complained under Article 6 of the Convention that the representation he had received from legal-aid counsel during the initial trial had been inadequate, that the trial court had failed to obtain the attendance of a certain witness, and about the way admission and assessment of evidence had been conducted by the trial court. 69. However, having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court finds that there is no appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 70. 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 71. The applicant claimed 44,435 euros (EUR) in respect of both pecuniary damage (lost salary, money transfers and parcels from a family member) and non-pecuniary damage. 72. The Government noted that the applicant had failed to substantiate his claim for pecuniary damage. As regards the non-pecuniary damage, they submitted that if the Court were to find a violation, the finding of such a violation would in itself constitute sufficient just satisfaction. 73. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, the applicant must have suffered anguish and distress on account of the failure of the domestic authorities to carry out an effective investigation into his allegations of ill-treatment. Having regard to these considerations and judging on an equitable basis, the Court finds it reasonable to award the applicant EUR 5,000 under this head, plus any tax that may be chargeable on this amount. B. Costs and expenses 74. As the applicant did not claim costs and expenses, the Court makes no award under this head. C. Default interest 75. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaints under Article 3 of the Convention admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 3 of the Convention under its procedural aspect; 3. Holds that there has been no violation of Article 3 of the Convention under its substantive aspect; 4. 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 5,000 (five thousand euros), plus any tax that may be chargeable to the applicant, in respect of non-pecuniary damage, to be converted into the currency of the respondent State 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 amount 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 applicant’s claim for just satisfaction. Done in English, and notified in writing on 11 December 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenIsabelle Berro-LefèvreRegistrarPresident

SECOND SECTION CASE OF HESZ v. HUNGARY (Application no. 39382/06) JUDGMENT STRASBOURG 30 November 2010 FINAL 28/02/2011 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Hesz v. Hungary, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Ireneu Cabral Barreto,Danutė Jočienė, András Sajó,Nona Tsotsoria,Kristina Pardalos,Guido Raimondi, judges,and Françoise Elens-Passos, Deputy Section Registrar, Having deliberated in private on 9 November 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 39382/06) against the Republic of Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Mr György Hesz (“the applicant”), on 28 August 2006. 2. The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Agent, Ministry of Public Administration and Justice. 3. On 21 October 2009 the President of the Second Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1951 and lives in Budapest. 5. On 10 September 1992 the applicant brought an action against several respondents before the Budapest XX/XXI/XXIII District Court, requesting it to establish the invalidity of a contract and to order the respondents to vacate the house in which they lived. 6. Subsequently, several hearings took place and the opinion of an expert was obtained. Between 4 February 1997 and 20 May 1999 the case was suspended pending a related procedure before the land registry. 7. After several further hearings, on 30 June 2004 the District Court dismissed the action. On appeal, the Budapest Regional Court upheld the essence of the first-instance decision on 13 April 2005. On 4 April 2006 the Supreme Court dismissed the applicant’s petition for review. THE LAW 8. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement of Article 6 § 1 of the Convention. The Government contested that argument. 9. The Court observes that the period to be taken into consideration began only on 5 November 1992, when the recognition by Hungary of the right of individual petition took effect. However, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings at the time. The Court notes that the case had been pending for about two months on that date. The period in question ended on 4 April 2006. It thus lasted thirteen years and seven months. Of this time, two years and three months corresponding to the suspension of the proceedings, apparently justified and thus not imputable to the State, must be deducted. However, the remaining period still exceeds eleven years and four months for three levels of jurisdiction. In view of such lengthy proceedings, this complaint must be declared admissible. 10. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present application (see Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or convincing argument capable of persuading it to reach a different conclusion in the present circumstances. Having regard to its case-law on the subject, the Court considers that the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. 11. The applicant also complained under Article 6 § 1 of the Convention about the decisions given by the courts. In so far as his complaint may be understood to concern the assessment of the evidence and the result of the proceedings before the domestic courts, the Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I). In the present case, the Court considers that the applicant’s submissions do not disclose any elements of arbitrariness and, hence, no appearance of a violation of his rights under Article 6 of the Convention has been demonstrated. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected, pursuant to Article 35 § 4 of the Convention. 12. Relying on Article 41 of the Convention, the applicant claimed 8,000 euros (EUR) in respect of non-pecuniary damage. (He made no claim for costs and expenses.) The Government accepted the damages claim. The Court considers that the applicant must have sustained some non-pecuniary damage. It awards him the full sum claimed, i.e. EUR 8,000 (cf. Wolfgéher and Turula v. Hungary, no. 36739/05, § 11, 3 November 2009). 13. 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 1. Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. 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 8,000 (eight thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Hungarian forints 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 30 November 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Françoise Elens-PassosFrançoise TulkensDeputy RegistrarPresident

THIRD SECTION CASE OF CUCU v. ROMANIA (Application no. 22362/06) JUDGMENT STRASBOURG 13 November 2012 FINAL 13/02/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Cucu v. Romania, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Egbert Myjer,Alvina Gyulumyan,Ján Šikuta,Luis López Guerra,Nona Tsotsoria,Kristina Pardalos, judges,and Santiago Quesada, Section Registrar, Having deliberated in private on 16 October 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 22362/06) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Mr Viorel Cucu (“the applicant”), on 6 April 2006. 2. The applicant was represented by Nicoleta Popescu, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Răzvan Horaţiu Radu. 3. As Mr Corneliu Bîrsan, the judge elected in respect of Romania, had withdrawn from the case (Rule 28 of the Rules of Court), the President of the Chamber appointed Mrs Kristina Pardalos to sit as ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1 of the Rules of Court). 4. On 27 October 2009 the President of the Third Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (former Article 29 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1977. He lives in Bucharest. 6. On 21 November 2001 the Bucharest Appeal Court found the applicant guilty of robbery and two traffic offences and sentenced him to eleven years’ imprisonment. 7. He started serving his sentence in Jilava Prison, where he was detained from 28 February 2001 to 4 March 2002; from 27 April 2002 to 23 January 2003; from 28 January to 3rd July 2003; and from 20 February 2006 to 4 December 2008. He also served a part of his sentence in Giurgiu prison from 3rd July 2003 to 26 February 2005; from 5 March 2005 to 11 February 2006; and from 25 February to 23 April 2009. 8. The further circumstances on the applicant’s conditions of detention are in dispute between the parties. A. Conditions of detention 1. The applicant’s account 9. The applicant complained about the conditions of his detention, summarised below, in both Jilava and Giurgiu prisons. He regularly complained thereof and about the disciplinary measures taken against him to the delegate judge, who dismissed most of his complaints. For instance, in a decision of 23 March 2007, the delegate judge to Jilava Prison rejected the applicant’s complaints that he did not fully benefit from the rights granted to him by the Regulations implementing Law no. 275/2006, adopted by Decree no. 1897/2006, on the ground, inter alia, that the legal force of the regulations was inferior to that of the law, and that therefore the prison administration was under no obligation to grant detainees rights which were not provided for by Law no. 275/2006 itself. (a) Jilava Prison 10. The cell lacked basic hygiene, it was infested with lice, bugs and rats, the blankets were in a poor condition and the mattresses were dirty. Although the cell was very small and it was only big enough for two to three people, there were nine beds and twelve inmates in the cell (sometimes even fourteen to fifteen). 11. The cell window was very small and the cell lacked natural light. Due to the size of the window, the cell was not properly ventilated. The air was even more difficult to breathe as his cellmates were smokers, and the applicant was thus exposed to smoke almost all day long. 12. As the sanitary facilities were separated from the rest of the cell only by a makeshift partition, the smell was unbearable. 13. The water was undrinkable. 14. In addition, the applicant alleges that his daily walk schedule was not observed and that his access to cultural and educational activities was limited. (b) Giurgiu Prison 15. The conditions were similar to those in Jilava Prison: the cell was overcrowded and lacked basic hygiene; also, there were no educational and cultural activities and the walk schedule was not observed. 16. He was detained alone in a cell for more than eight months, from July 2003 to February/March 2004. During that period he had no contact with the outside world, his rights to receive visits or parcels and to make phone calls were heavily restricted, the window could not be opened and he could only go out for walks on the roof of the prison building, handcuffed, and in a group of no more than five or six prisoners. 17. On 19 March 2004 the applicant was categorised as “dangerous” and treated as such, including during his transfer from Jilava Prison to Giurgiu Prison. This measure was regularly renewed. However, the applicant considered that the decisions to categorise him as dangerous had lacked any factual basis and pointed out that since 29 March 2003 he had not committed any act of indiscipline and had integrated very well into prison life. 18. Being categorised as a dangerous prisoner had serious consequences. His rights to receive visits, parcels and correspondence were restricted, and sometimes even withdrawn. The applicant frequently had to file actions with the courts each time there was a restriction of his right to receive parcels and correspondence; most of his complaints about that were allowed by the domestic courts. However, the decision to categorise him as dangerous had other consequences: it prevented him from participating in a number of activities in the prison, and even restricted his movement; for instance, his hands were handcuffed behind his back whenever he was moved, which proved very painful. 19. Generally, the prison staff had a hostile attitude towards him. 20. On 4 July 2004 he was taken from Giurgiu Prison to Giurgiu County Court for a hearing. He did not receive any food or water until he was taken back to Giurgiu Prison. 2. The Government’s account (a) Jilava Prison 21. The Government submitted in their observations that in general, the conditions in Jilava Prison were adequate. In 2001 and 2002 there had been a problem with the overcrowding of the cells, but as of 2003 the situation had improved, and in each cell the number of detainees corresponded to the number of beds at the most. Each cell had power supply, natural light and natural ventilation through the windows. In summer time, the cell doors remained open, being closed off only by grids for better ventilation. 22. Each cell was equipped with tables, chairs, benches and a hallstand. The cells were cleaned by the prisoners, the necessary materials being provided by the prison administration. Disinfestation services were provided by professionals at least once every three months. The sanitary facilities were cleaned every morning with disinfectants. Whenever necessary, the cells were cleaned with disinfectants. Every week, upon request, the clothing of the detainees was washed. 23. Drinking water was permanently available. The quality of the water was checked monthly by a company under contract with the prison administration; according to the reports of that company, the water was drinkable. 24. The applicant was detained in cells nos. 203, 304, 307, 210, 208, 405, 404, 401, 403, 412. During 2001-2003 the applicant was entitled to a daily thirty-minute walk; after Law no. 275/2006 entered into force in July 2006, he was entitled to a three-hour walk. In 2006 and 2007 the applicant also took part in educative programmes. 25. The fact that the applicant was registered as a detainee with an increased degree of risk did not restrict his right to receive packages, visits, or correspondence; however, appropriate security measures were taken when granting these rights. Moreover, the applicant complained dozens of times both about the security measures and the way they interfered with his rights, as well as about the improper conditions of his detention. The delegated judge often granted the applicant’s appeals concerning disciplinary sanctions against him. The appeals concerning his registration as dangerous and the material conditions of detention were dismissed, on the ground that no breach of law could be found. For instance, on 25 May 2007, the applicant’s complaints about the improper material conditions in his cell and about the lack of medical treatment by a dentist were dismissed by the delegate judge. He found, upon examination of the information submitted to him by Jilava Prison administration, that the conditions of the applicant’s detention did not amount to inhuman or degrading treatment and that, although there was no dentist in Jilava Prison, a competition for hiring a dentist in that prison was being organised by the Ministry of Justice. The delegated judge concluded that no breach of Law no. 275/2006 could be found. (b) Giurgiu Prison 26. The cells in the prison had two or six beds, and were equipped in compliance with the law. Each detainee had an individual bed and a bedroll. 27. The two-bed detention cells measured 10.24 square metres, access to natural light and ventilation through four windows, and were equipped with one sink with utensils, one television stand, one table, one 220V lamp and one night watch light. 28. The six-bed detention rooms measured 21.76 square metres, access to natural light and ventilation through six windows, and were equipped with one sink with utensils, one television stand, three tables, one bench, a hallstand, one 220V lamp and one night watch lamp. 29. The sanitary facility was separated from the detention room and conformed to hygiene standards and privacy requirements. The detention rooms and water for twice weekly baths were heated by the prison’s own power station. Drinking and non-drinking water was provided by the Giurgiu city supply network and was checked periodically. 30. The applicant was registered as a detainee with an increased degree of risk, and therefore security measures were taken when according his rights. For instance, his daily walk took place in one of the eight courtyards specially designed for very dangerous detainees, located on block C. 31. Between July 2003 and March 2004 the applicant was detained alone in a cell equipped in a similar way to the other cells. After March 2004 the applicant shared his cell with another detainee. The daily programme was respected by the prison administration, his rights to visits and packages were observed, and he was even able to participate in the football games organised by the penitentiary authorities. 32. The applicant’s registration as a detainee with an increased degree of risk was well-founded and repeatedly prolonged throughout his detention in Giurgiu Prison. The applicant complained dozens of times about his conditions of detention, including material conditions, lack of medical treatment and restrictions to his rights as a result of his registration as dangerous. The delegated judge often granted the applicant’s appeals concerning disciplinary sanctions against him. The appeals concerning his registration as dangerous and the material conditions of detention were dismissed, on the ground that no breach of law could be found. B. The events of 10, 11 and 14 November 2005 1. The applicant’s criminal complaint of ill-treatment 33. The circumstances surrounding the events on 10 and 11 November 2005 are in dispute between the parties. 34. The applicant alleged that on 10 and 11 November 2005, while in Giurgiu Prison, he had been beaten by members of the Giurgiu Prison intervention squad wearing balaclavas. His requests to be examined by a forensic doctor immediately after the violent incidents had been ignored. He further alleged that he had immediately duly informed the prison authorities about the violent behaviour of the members of the intervention squad. 35. The Government submitted in their observations that on 10 November 2005, upon his return from a court hearing, the applicant had asked to be taken to the prison store room to pick up some personal effects. The officers had informed him that his request would be granted only after all the formalities applicable to detainees returning from court to their cells had been complied with. Unhappy that his request had not been granted immediately, the applicant had become violent, and while he was being taken to the detention room, he had managed to undo his handcuffs and hit C.C., one of the members of the intervention unit, in the face. The incident was settled calmly and the applicant was placed in his cell without further difficulty. The next day C.C. had been taken to a doctor, who had established that he had “a minor head injury of level 0-1”, which required nine days of medical treatment. 36. The applicant also alleged that on 14 November 2005, during the morning call, he had been hit and insulted by a supervising officer, N.I., and two members of the intervention unit. 37. After the incidents on 10, 11 and 14 November 2005, the applicant lodged with the Prosecution Office attached to the Giurgiu District Court a criminal complaint against the following prison officers: a) C.C. and other members of the intervention unit, for hitting him on the evening of 10 November 2005 upon his return from a court hearing; b) S.C., S.V., C.C. and other members of the intervention unit for allegedly beating, threatening and insulting him on 11 November 2005; c) prison warden I.N. for allegedly insulting and hitting him during the morning call on 14 November 2005. 38. On 24 November 2005 the applicant was brought before the Giurgiu District Court concerning his request that the prison administration’s decision to grade him as a “dangerous detainee” be revoked (see paragraph 18 above). During the hearing, he complained that he had been repeatedly beaten in Giurgiu Prison by State agents and that his body still bore bruises, and that he suffered pain in the right rib cage. He also indicated that he had filed complaints with the prosecutor and the prison administration, asking to see a doctor, but that he had received no answer. The court took note of the criminal complaints lodged by the applicant and forwarded them to the prosecutor for further investigation. It also ordered the Giurgiu Prison administration to allow a doctor to see the applicant in order to have a medical certificate drawn up in relation to his allegations of ill-treatment. 39. Following the Giurgiu District Court’s order, the applicant was examined by a doctor the next day, on 25 November 2005. A forensic medical report was drawn up, indicating multiple bruises in the area of the applicant’s thighs and lower legs, which were deemed to still require some two to three days’ medical treatment. The report also stated that the bruises could have been caused on 10 or 11 November 2005 by impact with hard objects. 40. On 12 December 2005 the Prosecution Office indicted the applicant for assault on a State agent, for having hit C.C. on 10 November 2005 (see paragraphs 46 et seq. below). 41. On 31 October 2006 the Prosecution Office decided not to open criminal proceedings against I.N. in relation to the alleged incident on 14 November 2005, on the ground that the complaint had not been substantiated. The prosecution established that the only witness who had supported the applicant’s version of events, S.M., had not been an eye‑witness; he had only heard screams and shouting involving the applicant and I.N from his cell. The other witnesses, who had been sharing the cell with the applicant, had not seen anything. 42. The decision not to open criminal proceedings against I.N. was upheld by the higher prosecutor on 22 January 2007. 43. On 20 March 2008 Giurgiu County Court upheld the decision not to open proceedings. The court reached this decision upon examination of the file produced by the prosecution, without any evidence being administered or any witnesses being heard. 44. On 12 December 2006 the Prosecution Office decided not to open criminal proceedings in relation to the alleged incidents of 10 and 11 November. The prosecutor established that on 10 November 2005, due to the fact that the applicant had been denied a particular request, he had succeeded in freeing one hand from his handcuffs and hitting one of the agents of the special intervention unit, C.C., in the face. The intervention squad had managed to immobilize the applicant. The prosecutor considered that the forensic certificate drawn up on 25 November 2005 could not constitute evidence showing that the injuries had been inflicted by I.N. and C.C., since there was a possibility that those injuries had been inflicted during the immobilization of the applicant. The prosecutor further indicated that the statements made by those witnesses who were also detainees were subjective, due to the fact that they had been the applicant’s fellow inmates; moreover, they had presented the facts differently. 45. The decision not to open criminal proceedings in relation to the alleged incidents of 10 and 11 November 2005 was upheld by the higher prosecutor on 7 February 2007. 46. On 11 February 2008 the Giurgiu District Court upheld the decision of 7 February 2007. The court reached its decision upon examination of the file produced by the prosecution, without administering evidence or hearing witnesses. The court found that the witnesses did not confirm the applicant’s allegations. In particular, those witnesses in Giurgiu Prison who had seen the applicant being hit by agents wearing balaclavas were unable to provide the names of those agents, while other witnesses had no knowledge at all of the said events. The court found the statement by an inmate, S.M., to the effect that one of the two agents wearing balaclavas who had beaten the applicant had been C.C., unconvincing on the ground that the agents’ faces had been covered by the balaclavas. The court further found, with respect to the forensic medical certificate, that “the mere existence of those bruises does not indicate the respondents’ guilt.” 47. On 15 May 2008 Giurgiu County Court upheld the decision of 11 February 2008, finding that the applicant’s allegations had not been fully substantiated. The court reached its decision upon examination of the file produced by the prosecution. It concluded that despite a number of witnesses confirming the occurrence of incidents between the applicant and the prison wardens in Giurgiu Prison, none of those witnesses had identified the applicant’s aggressors as the defendants indicated by the applicant. 2. Criminal complaint against the applicant for assault on a State agent 48. On 12 December 2005 the Prosecution Office indicted the applicant for assault on a State agent, for having hit C.C. on 10 November 2005. After questioning witnesses to the incident on 10 November 2005 and in the light of the medical certificate issued on 11 November 2005, indicating that C.C. had needed eight to nine days of medical care, the prosecutor established that the applicant had voluntarily hit C.C. on 10 November 2005. 49. Before the Giurgiu District Court the applicant claimed that he had not hit C.C. on 10 November 2005. He contended that while he had been vehemently protesting against the guards’ refusal to take him to the store room, two members of the intervention squad had approached him and hit him. During his attempts to defend himself from the blows, one of the agents might have accidentally been hurt. He claimed, however, that he had not behaved aggressively and had not resisted the immobilisation manoeuvres. He relied on the statements of all the witnesses to the incident, which had shown that he had not acted violently when the agents had attempted to immobilize him. He further stressed that numerous witnesses had stated that the State agents had assaulted him, and pointed to the incoherency of the statements of the agents who claimed that he had voluntarily hit C.C. He finally asked the court to hear evidence from all witnesses to the incident, inmates and State agents. 50. On 22 May 2006 the Giurgiu District Court convicted the applicant of assault on a State agent, C.C., sentenced him to seven years’ imprisonment and, as required by Article 71 of the Criminal Code read in conjunction with Article 64 a) of the Criminal Code, deprived him of his right to vote as an additional penalty. The court firstly noted that the inmates who had witnessed the incident of 10 November 2005 had withdrawn the statements they had made to the prosecutor in which they had indicated that the applicant had hit C.C. Before the court, they had stated that those statements had been made under duress. They submitted to the court that it was the applicant who had been assaulted by the State agents. The court found those statements irrelevant, on the ground that they merely proved an alleged provocation by the State agents, and did not exculpate the applicant from the injuries he had caused to C.C. The court further found that those injuries had been caused with intent, as the statements given by the State agents questioned in the court showed. 51. Following an amendment of the Criminal Code on certain sentences, an appeal by the applicant was allowed on 18 June 2007 by the Giurgiu County Court, with regard to the prison sentence only, which was reduced to one year. The decision was upheld by the Bucharest Court of Appeal on 7 January 2008. C. The right to receive visits from P.N.M. 52. On 29 April 2004 the Giurgiu prison administration informed the applicant that his common-law wife, P.N.M., was not allowed to visit him, since the prison records indicated that he was married to another woman. Her name was therefore not put on the list of people allowed to visit the applicant. 53. On 18 March 2005, relying on Government Ordinance no. 56/2003, the applicant challenged the refusal of the Giurgiu Prison administration to allow him visits from P.N.M. with the Giurgiu District Court. By a decision of 31 March 2005 the court found for the applicant and ordered the decision in question to be quashed and the applicant to be entitled to visits from P.N.M. The decision became final. 54. The prison records do not indicate that there were visits from P.N.M. after the judgment of 31 March 2005. They do, however, indicate that he was visited by members of his family on a regular basis. 55. Whether the decision of 31 March 2005 was enforced or not is in dispute between the parties. The applicant claimed that the decision of 31 March 2005 had not been enforced and that P.N.M. had not been put on the list of people allowed to visit him. He did not provide, however, specific information as to any attempts by P.N.M. to visit him after 31 March 2005. In their observations, the Government claimed that, on the contrary, after the decision of 31 March 2005, P.N.M. did not ask to visit the applicant. II. RELEVANT DOMESTIC LAW AND INTERNATIONAL DOCUMENTS A. Relevant domestic law 56. The domestic legislation on the execution of sentences, in particular Law no. 23/1969 and Emergency Ordinance no. 56/2003 (“Ordinance no. 56/2003”) are described in Petrea v. Romania, no. 4792/03, §§ 21-23, 29 April 2008. On 20 October 2006 Law no. 275/2006 on the execution of sentences entered into force, which replaced Law no. 23/1969 and Ordinance no. 56/2003. Article 38 of Law no. 275/2006 provides the right of a detainee to complain to the delegate judge about any measure taken by the prison administration which infringes the rights granted to him by that Law. The decision taken by the delegate judge is subject to appeal before the District Court. No provision of Law no. 275/2006 deals with the structural quality of the place of detention or the space provided to detainees. 57. The relevant provisions of the Code of Criminal Procedure concerning complaints about decisions by the prosecutor are set out in Dumitru Popescu v. Romania (no. 1), no. 49234/99, §§ 43-45, 26 April 2007). 58. The relevant provisions of the Criminal Code providing the automatic withdrawal of the right to vote and to be elected during the execution of a prison sentence, read as follows: Article 64 – Additional penalties “Disqualification from exercising one or more of the rights mentioned below may be imposed as an additional penalty: (a) the right to vote and to be elected to bodies of a public authority or to public elective office; ...” Article 71 – Secondary penalty “The secondary penalty shall consist in disqualification from exercising all the rights listed in Article 64. (2) A life sentence or any other prison sentence shall automatically entail disqualification from exercising the rights referred to in the preceding paragraph from the time at which the conviction becomes final until the end of the term of imprisonment or the granting of a pardon waiving the execution of the sentence ...” 59. In a decision of 5 November 2007 (following an appeal in the interests of the law) which became mandatory on the date of its publication in the Official Gazette on 18 July 2008, the High Court of Cassation and Justice advised the domestic courts to interpret Article 71 § 2 of the Criminal Code in the light of the Convention, and thus assess in each case the necessity of the withdrawal of the right to vote. 60. The Government submitted copies of various decisions given by the domestic courts applying Ordinance no. 56/2003 and Law no. 275/2006. These decisions deal mainly with complaints by detainees which challenged before the national courts various disciplinary measures, or related to the regime of imprisonment, the right to correspondence or medical care. The Government also submitted two cases, one concerning a complaint about poor sanitary installation and lack of observance of a shower schedule, and one concerning a complaint regarding overcrowding, lack of air, and the presence of ill inmates. Both of them were dismissed by the domestic courts on the ground, inter alia, that they “did not regard any of the rights provided by Law no. 275/2006”. B. Council of Europe Reports 61. Following a visit to Romania by the Commissioner for Human Rights from 13 to 17 September 2004, a report was published on 29 March 2006, providing information on Bucharest-Jilava Prison. The report describes the conditions of detention in this facility as “particularly difficult” and the situation as “alarming”. It further described the facilities as “outdated, windows unable to filter the cold and furniture from another era”. 62. The relevant findings and recommendation of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) are described in the cases Brăgădireanu v. Romania, no. 22088/04, §§ 73-75, 6 December 2007, and Artimenco v. Romania (no. 12535/04, §§ 22-23, 30 June 2009). 63. With regard to Jilava Prison, excerpts from the CPT’s findings following the visits of 1999 and 2006 are given in the case of Eugen Gabriel Radu v. Romania (no. 3036/04, §§ 14-17, 13 October 2009). In particular, the CPT expressed concern about the restricted living space, as the number of detainees exceeded more than twice the prison’s capacity, the shortage of beds, the lack of adequate separation between the toilets and the living space in the cells, and qualified the conditions as “lacking privacy” and “an affront to human dignity”. 64. Following visits in June 2006 to several prisons in Romania, the CPT published a report on 11 December 2008, in which it stated, inter alia: “70. (...) the Committee is gravely concerned that the lack of beds remains an ongoing problem not only in the establishments visited, but also at the national level, and has been since the first visit to Romania in 1995. It is high time that major steps are taken to put an end to this unacceptable situation. The CPT calls upon the Romanian authorities to take decisive priority action to ensure that that each inmate housed in a prison has a bed. However, the Committee welcomes the fact that shortly after the visit in June 2006, the official standard of living space per inmate in the cell was increased from 6 m3 (which amounted to an area of about 2 square metres per detainee) to 4 m2 or 8 m3. The CPT recommends that the Romanian authorities take the necessary steps to meet the standard of 4 m² of living space per inmate in shared cells in all prisons in Romania”. 65. With respect to the practice of prison administrations employing special intervention units, in its report of 2006 the CPT found that special intervention units wearing masks were dispatched to surveillance departments in order to control violent and/or unmanageable and rebellious detainees. According to the CPT, the presence of such units creates an oppressive atmosphere, whereas the wearing of masks makes it difficult to identify a potential suspect if and when an allegation of ill-treatment is made. The CPT recommended that members of the special intervention units should be forbidden from wearing masks in the exercise of their duties in a prison environment, irrespective of the circumstances. The CPT further recommended that the Romanian authorities remind the members of the special intervention units that all forms of ill-treatment against detainees (including verbal provocation and insults) are unacceptable and are to be severely sanctioned, and that the use of force in order to control violent and/or recalcitrant prisoners must be limited to occasions when it is strictly necessary. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE CONDITIONS OF THE APPLICANT’S DETENTION 66. The applicant complained about the conditions of his detention in Jilava and Giurgiu prisons, in particular, overcrowding and poor hygiene. He also complained that he had been detained in solitary confinement between July 2003 and March 2004. He invoked Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 1. The Government’s objection under the six-month rule with regard to the applicant’s solitary confinement between July 2003 and March 2004 67. The Government raised the objection of non-observance of the six‑month rule with regard to the claim that from July 2003 until March 2004 the applicant had been detained in an isolation room in Giurgiu Prison. They emphasized that this was a singular event which had occurred during a specific period of the applicant’s detention, and was not a continuous situation. 68. The applicant did not make any observations in this connection. 69. The Court reiterates that Article 35 § 1 of the Convention permits it to deal with a matter only if the application is lodged within six months of the date of the final decision in the process of exhaustion of domestic remedies, and reiterates that in cases where there is a continuing situation, the six-month period runs from the cessation of that situation (see Koval v. Ukraine (dec.), no. 65550/01, 30 March 2004). The Court has already ruled that complaints which have as their source specific events which occurred on identifiable dates cannot be construed as referring to a continuing situation (see Camberrow MM5 AD v. Bulgaria, (dec.), no. 50357/99, 1 April 2004). 70. In the present case, the Court notes that the applicant complains about the fact that he was kept in solitary confinement between July 2003 and March 2004. He did not claim that that treatment continued afterwards. It follows that his detention in solitary confinement cannot be regarded as a continuous situation. Since the applicant lodged his complaint with the Court only on 6 April 2006, that is, more than six months after the solitary confinement ended, in March 2004, the Court allows the Government’s objection. It follows that this part of the complaint has been lodged late and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention. 2. The Government’s objection of non-exhaustion of domestic remedies 71. The Government raised a preliminary objection of non-exhaustion of domestic remedies, in so far as the applicant did not challenge the delegate judge’s ruling on the conditions of his detention in compliance with Law no. 275/2006. Referring to the cases of Petrea v. Romania (no. 4792/03, 29 April 2008), Măciucă v. Romania (no. 25763/03, 26 May 2009) and Stan v. Romania (decision of 20 May 2008), the Government argued that Ordinance no. 56/2003 and Law no. 275/2006 provided an adequate and effective remedy in accordance with the Court’s jurisprudence. 72. The applicant disagreed and argued that poor detention conditions were a systemic problem throughout the Romanian prison system, and that Law no. 275/2006 did not provide an effective remedy for that situation. Furthermore, even if Law no. 275/2006 allowed, in theory, the delegate judge to examine a complaint by a detainee about the material conditions of his or her detention and to reach the conclusion that the complaint was substantiated, such a decision could not effectively amount to a change in the situation, since it would not result in the detainee being placed in a less crowded cell or in a cleaner or better ventilated cell. 73. The Court notes that the applicant’s complaint concerns the material conditions of his detention relating, inter alia, to overcrowding and poor sanitary facilities. It recalls that in numerous cases raising similar issues it has already found that, in the case of complaints about conditions of detention relating to structural issues such as overcrowding or dilapidated installations, given the specific nature of this type of complaint, the legal actions suggested by the Romanian Government, based on Ordinance no. 56/2003 and on Law no. 275/2006, did not constitute effective remedies (see, among others, Petrea, cited above, § 37; Eugen Gabriel Radu v. Romania, no. 3036/04, § 23, 13 October 2009; Iamandi v. Romania, no. 25867/03, § 49, 1 June 2010; Cucolaş v. Romania, no. 17044/03, § 67, 26 October 2010; Ogică v. Romania, no. 24708/03, § 35, 27 May 2010; Dimakos v. Romania, no. 10675/03, § 38, 6 July 2010; and Goh v. Romania, no. 9643/03, §§ 43 to 45, 21 June 2011). In particular, the Court notes that Law no. 275/2006 does not provide either for a certain quality of detention facilities nor for a minimum space of living for a detainee (see paragraph 56 above). Furthermore, none of the domestic decisions submitted by the Government (see paragraph 60 above) support their allegation that a legal action based on the above-mentioned provisions could have afforded the applicant immediate and effective redress for his complaint. In any event, the Court notes that the applicant complained about the conditions of his detention on numerous occasions (see paragraphs 9, 25 and 32 above), and that his complaints were dismissed by the delegated judge, who found no breach of Law no. 275/2006. 74. It therefore rejects the Government’s plea of non-exhaustion of domestic remedies in respect of the applicant’s complaint concerning the material conditions of detention in Jilava and Giurgiu prisons. 75. Finally, the Court notes that the applicant’s complaint concerning the material conditions of his detention 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 76. The Government contended that the applicant enjoyed adequate living conditions while in detention. 77. The applicant maintained his allegations. 78. The Court refers to the principles established in its case-law regarding the conditions of detention (see, for instance, Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000‑XI; Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II; Peers v. Greece, no. 28524/95, §§ 70-72, ECHR 2001-III; Kalashnikov v. Russia, no. 47095/99, §§ 97 et seq., ECHR 2002-VI; Karalevičius v. Lithuania, no. 53254/99, 7 April 2005; Ostrovar v. Moldova, no. 35207/03, § 89, 13 September 2005; and Alver v. Estonia, no. 64812/01, 8 November 2005). 79. The Court observes that it has already found violations of Article 3 of the Convention in similar cases, on account of the material conditions of detention in Jilava and Giurgiu prisons, especially with respect to overcrowding and lack of hygiene (see, among others, Bragadireanu v. Romania, no. 22088/04, § 92-98, 6 December 2007; Măciucă v. Romania, no. 25763/03, §§ 24-27, 26 May 2009; Jiga v. Romania, no. 14352/04, §§ 65-66, 16 March 2010; Iamandi v. Romania, no. 25867/03, §§ 59-62, 1 June 2010; Marcu v. Romania, no. 43079/02, §§ 62-64, 26 October 2010; and Flamînzeanu v. Romania, no. 56664/08, § 98, 12 April 2011). 80. In the present case, the Court notes that the applicant’s description of the detention facilities in both Giurgiu and Jilava prisons, in particular overcrowding, damaged mattresses and inappropriate sanitary facilities, have not been contested by the Government. The applicant’s description corresponds to the findings by the Commissioner for Human Rights of the Council of Europe and the CPT in respect of Romanian prisons (see paragraphs 61-65 above). Moreover, it is undisputed that at least until July 2006 the applicant was confined in his cell most of the day, and was able to take a walk in the prison yard for only a very limited time. 81. In the case at hand, the Government failed to put forward any argument that would allow the Court to reach a different conclusion. Even though in the present case there is no indication that there was a positive intention to humiliate or debase the applicant, the Court concludes that the conditions of his detention in Jilava and Giurgiu prisons caused him suffering that exceeded the unavoidable level of suffering inherent in detention and that attained the threshold of degrading treatment proscribed by Article 3. 82. There has accordingly been a violation of Article 3 of the Convention in so far as the conditions of the applicant’s detention are concerned. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN RESPECT OF ILL-TREATMENT 83. The applicant complained under Article 3 of the Convention that he had been subjected to ill-treatment by State agents while imprisoned in Giurgiu Prison and that the authorities had not carried out an effective investigation into those allegations. He invoked Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 84. The Court notes that the 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’ submissions 85. The Government contended that judicial authorities had carried out a proper investigation and that the prosecutor had questioned all those who had any knowledge of the events, regardless of whether they were prison wardens, members of the special intervention squad or detainees. The inquiry carried out by the prosecutor had made it possible to identify the individuals involved, despite the fact that the members of the special intervention unit had been wearing balaclavas. However, the evidence collected did not support the assertion that the applicant had suffered treatment infringing Article 3 while in the hands of State’s agents. 86. The applicant disagreed. He submitted that he had duly complained to the authorities that he had been beaten by members of the special intervention squad wearing balaclavas, and complained that the investigation into those allegations had been purely formal. Relying on the Court’s judgment in the case of Bursuc v. Romania (no. 42066/98, § 80, 12 October 2004), the applicant considered that the Government had not managed either to give a plausible explanation as to the events of 10 to 11 November 2005 or even to cast a doubt on his allegations. He furthermore argued that he was in the sole custody of State agents and therefore was not in a position to gather all the necessary elements of proof. However, had an effective investigation been carried out in his case, the authorities could have rebutted his allegations, which they had not. He further pointed out that the medical evidence gathered in his case had not been taken into consideration by the investigating authorities. 2. The Court’s assessment (a) General principles 87. The Court reiterates that persons in custody are in a vulnerable position and that the authorities are under a duty to protect their physical well-being (see Gladyshev v. Russia, no. 2807/04, § 51, 30 July 2009; Sarban v. Moldova, no. 3456/05, § 77, 4 October 2005; and Mouisel v. France, no. 67263/01, § 40, ECHR 2002-IX). 88. To fall under Article 3 of the Convention ill-treatment must attain a minimum level of severity. The standard of proof relied upon by the Court is that “beyond reasonable doubt” (see Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001-VII). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly or in large part within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Gladyshev, cited above, § 52; Oleg Nikitin v. Russia, no. 36410/02, § 45, 9 October 2008; and Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII). 89. The Court also recalls that where an individual raises an arguable claim that he has been seriously ill-treated in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998‑VIII). 90. An obligation to investigate “is not an obligation of result, but of means”: not every investigation should necessarily be successful or come to a conclusion which coincides with the claimant’s account of events; however, it should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 71, ECHR 2002-II; Mahmut Kaya v. Turkey, no. 22535/93, § 124, ECHR 2000-III; and Mikheyev v. Russia, no. 77617/01, § 107, 26 January 2006). 91. The investigation of arguable allegations of ill-treatment must be thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill‑founded conclusions to close their investigation or as the basis of their decisions. They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, a detailed statement concerning the allegations from the alleged victim, eyewitness testimony, forensic evidence and, where appropriate, additional medical certificates capable of providing a full and accurate record of the injuries and an objective analysis of the medical findings, in particular as regards the cause of the injuries. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard (see Mikheyev, cited above, § 108, and Nadrosov v. Russia, no. 9297/02, § 38, 31 July 2008). 92. Lastly, notwithstanding its subsidiary role in assessing evidence, the Court reiterates that where allegations are made under Article 3 of the Convention, the Court must apply a particularly thorough scrutiny even if certain domestic proceedings and investigations have already taken place (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000, and Cobzaru v. Romania, no. 48254/99, § 65, 26 July 2007). (b) Application of the above principles in the present case 93. Turning to the facts of the present case, the Court notes that the applicant’s complaints concerned three distinct incidents which allegedly occurred on 10, 11 and 14 November 2005. After the alleged beatings, the applicant was examined by a doctor, who recorded in a forensic report of 25 November 2005 that the applicant had bruises in the area of his thighs and lower legs, requiring two to three days’ medical treatment, and that these bruises had probably been produced on 10 or 11 November 2005 (see, a contrario, Barbu Anghelescu v. Romania no. 2 (dec.), no. 2871/02, 26 February 2008). 94. The Court notes that the Government do not deny that the applicant sustained injuries to his person in November 2005 during his time in custody. However, they suggest that the injuries could have been caused during the violent incident of 10 November 2005. The Court for its part finds it impossible to establish on the basis of the evidence before it whether or not the applicant’s injuries were caused with intent as alleged, by the members of the intervention squad. The evidence referred to above supports both the applicant’s and the Government’s case. However it would observe at the same time that the difficulty in determining whether there was a plausible explanation for the applicant’s injuries or whether there was any substance to his allegations of ill-treatment rests with the failure of the authorities to investigate effectively his complaints (see Veznedaroğlu v. Turkey, no. 32357/96, § 31, 11 April 2000). The Court will now examine this matter further. 95. The Court notes that the applicant filed criminal complaints with the authorities to the effect that on 10, 11 and 14 December 2005 he had been hit by members of the special intervention unit employed by Giurgiu Prison. He substantiated his complaints with a medical report of 25 November 2005 indicating bruises on his thighs and legs which could have been produced around 10-11 November 2005. The applicant’s claim was, therefore, shown to be “arguable”, and the domestic authorities were placed under an obligation to carry out “a thorough and effective investigation capable of leading to the identification and punishment of those responsible”. 96. On 12 December 2006 the prosecutor refused to institute criminal proceedings against the State agents accused of having inflicted the injuries, on the ground that there was “a possibility” that the bruises on the applicant’s body had been produced while members of the intervention squad were immobilizing him during the incident on 10 November 2005. The prosecutor found that neither the medical certificate nor the statements by other detainees could be taken into account, since the medical certificate failed to establish that the bruises had been inflicted by State agents, and the detainees were also deemed to be subjective since they were the applicant’s fellow inmates. Furthermore, the prosecutor considered that the detainees’ statements to the effect that the applicant had been hit on numerous occasions, and in particular around 10, 11 and 14 November 2005, showed some discrepancies. The prosecutor found that the statements naming particular State agents as having hit the applicant were unreliable, since, due to the use of balaclavas, the members of the intervention unit were impossible to identify. That decision was upheld by a final decision of 15 May 2008 of the Giurgiu County Court, which found that the applicant’s allegations had not been fully substantiated. 97. The Court is concerned by the fact that no attempt whatsoever was made by the investigating authorities to establish the cause of the injuries the applicant sustained while he was in detention. The mere mention that there was a possibility that the injuries on the applicant’s body could have been produced otherwise than alleged is far from capable of satisfying the requirement that an “effective investigation” be carried out into allegations of ill-treatment. This failure alone is sufficient to render the entire investigation ineffective (see Samoylov v. Russia, no. 64398/01, § 37, 2 October 2008). The Court also refers to the findings of the CPT and considers that a proper investigation was especially important in the present case, where the authorities employed agents wearing balaclavas and who had no other distinguishing features, making it very difficult, if not impossible, for the detainees to identify them. 98. Finally, the Court observes that the applicant was medically examined only after the court before which he appeared ordered it on 24 November 2005, that is, some two weeks after the alleged ill-treatment and despite the criminal complaints lodged by the applicant immediately after the incident (see paragraphs 37 to 39 above). The Court notes that the authorities did not provide an explanation for the delay. 99. Having regard to the above, the Court concludes that the State authorities failed to conduct a proper investigation into the applicant’s allegations of ill-treatment. 100. Accordingly, there has been a violation of Article 3 of the Convention under the procedural limb. III. ALLEGED VIOLATIONS OF ARTICLES 6 § 1 AND 8 OF THE CONVENTION 101. The applicant complained under Articles 6 § 1 and 8 of the Convention that the final court decision of 31 March 2005 ordering the Giurgiu Prison administration to allow him to receive visits from his common-law wife P.N.M. had not been enforced and that this had infringed his right to respect for his family life. 102. The Government contended, on the contrary, that after the decision of 31 March 2005, P.N.M. did not ask to visit the applicant. 103. The Court notes that the applicant’s complaints are unsubstantiated, since he did not provide any information or document in support of his allegation that P.N.M. attempted to visit him after 31 March 2005 (see paragraphs 54 and 55 above). 104. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL No.1 TO THE CONVENTION 105. The applicant further complained that the automatic withdrawal of his voting rights amounted to a violation of Article 3 of Protocol No. 1 to the Convention, which reads as follows: “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” A. Admissibility 106. The Court notes that the 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 107. The Government admitted that the temporary withdrawal of the right to vote represented an interference with Article 3 of Protocol No.1. However, the measure was provided for by law, in particular Article 71 of the Criminal Code, read in conjunction with Article 64 a) of the Criminal Code, which requires the automatic withdrawal of the right to vote in case of an imprisonment sentence, and was necessary in a democratic society. The Government argued that in any event, despite the mandatory character of the above provisions of the Criminal Code, the domestic courts were advised by the High Court of Cassation and Justice, in a decision of 5 November 2007, following an appeal in the interests of the law, to make an extensive interpretation of Article 71 of the Criminal Code and to assess in each case the necessity of the withdrawal of the right to vote, even when an imprisonment sentence was pronounced. 108. The applicant submitted that, pursuant to the domestic relevant provisions of the Criminal Code, the withdrawal of the rights to vote of persons sentenced to imprisonment was mandatory and automatic. 109. The Court recalls that the rights guaranteed by Article 3 of Protocol No. 1 to the Convention are crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law; a general, automatic and indiscriminate restriction on the right to vote applied to all convicted prisoners serving sentences is incompatible with that Article (see Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, §§ 58 and 82, ECHR 2005‑IX). These principles were reaffirmed by the Grand Chamber in the case of Scoppola v. Italy (no. 3), in particular the incompatibility with Article 3 of Protocole No. 1 of such a general and automatic restriction, irrespective of the length of the sentence and irrespective of the nature or gravity of the offence and the individual circumstances of the convicted prisoners (Scoppola v. Italy (no. 3) [GC], no. 126/05, §§ 96, 108 and 109, 22 May 2012). 110. Turning to the instant case, the Court notes that the relevant provisions of the Criminal Code require the automatic withdrawal of the right to vote in case of a prison sentence (see above paragraph 58). While acknowledging the decision of 5 November 2007 of the High Court of Cassation and Justice put forward by the Government, the Court observes that this decision became mandatory for courts only in July 2008, after the applicant’s conviction and sentencing (see above paragraph 59). The Giurgiu District Court sentenced the applicant on 22 May 2006 to seven years’ imprisonment and ordered the right to vote to be withdrawn as an automatic penalty, without carrying out any proportionality assessment (see paragraph 50 above). Both the Giurgiu County Court and the Bucharest Court of Appeal upheld the automatic penalty of withdrawal of the right to vote (see paragraph 51 above). 111. The Court has already found in respect of Romania a violation of Article 3 of Protocol No. 1 on account of an automatic withdrawal of the right to vote as a secondary penalty to a prison sentence and of the lack of competence of the courts to proceed with a proportionality test on that measure (see Calmanovici v. Romania, no. 42250/02, § 153, 1 July 2008). Nothing in the present case allows the Court to reach a different conclusion. 112. In the light of the above, the Court concludes that in the present case there has been a violation of Article 3 of Protocol No. 1 to the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 113. 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 114. The applicant claimed 40,000 Euros (EUR) in respect of non‑pecuniary damage. 115. The Government submitted that if the Court were to find a violation, the finding of such a violation would constitute in itself sufficient just satisfaction. 116. The Court notes that it has found a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention in Jilava and Giurgiu prisons and the failure to carry out an effective investigation into his alleged ill-treatment whilst in State custody. It has also found a violation of Article 3 of Protocol No. 1 to the Convention. Under these circumstances, the Court considers that the pain, humiliation and frustration caused to the applicant cannot be compensated for by the mere finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 13,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. B. Costs and expenses 117. Providing documentary evidence in support of his claims, the applicant also claimed EUR 7,359.16 for the costs and expenses incurred before the Court as follows: EUR 7,059.16 for lawyer’s fees and EUR 300 for costs and expenses related to the proceedings before the Court, namely, technical support and mailing. 118. The Government opposed the award of the sums claimed for costs and expenses on the ground that they were excessive and unsubstantiated. 119. The Court reiterates that in order for costs and expenses to be reimbursed under Article 41, it must be established that they were actually and necessarily incurred and were reasonable as to quantum (see, for example, Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 62, ECHR 1999-VIII, and Boicenco v. Moldova, no. 41088/05, § 176, 11 July 2006). In accordance with Rule 60 § 2 of the Rules of Court, itemised particulars of all claims must be submitted, failing which the Court may reject the claim in whole or in part. 120. The evidence submitted to the Court shows that the applicant’s representative, Ms N. Popescu, incurred costs and expenses relating to the matters found to constitute the violations. Ruling on an equitable basis, and taking account of the number and complexity of issues dealt with and of the work needed to produce the documents and observations filed on the applicant’s behalf, the Court awards the applicant EUR 4,000, to be paid directly to the applicant’s representative, Ms N. Popescu. C. Default interest 121. 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 1. Declares the complaints under Article 3 of the Convention with regard to the material conditions of detention in Jilava and Giurgiu prisons and to the allegations of ill-treatment, and Article 3 of Protocol No. 1 to the Convention admissible, and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 3 of the Convention with respect to the conditions of detention in Jilava and Giurgiu prisons; 3. Holds that there has been a violation of Article 3 of the Convention on account of the failure of the authorities of the respondent State to investigate the applicant’s complaint of ill-treatment; 4. Holds that there has been a violation of Article 3 of Protocol No. 1 to the Convention; 5. Holds (a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts to be converted into the national currency at the rate applicable at the date of settlement: (i) EUR 13,000 (thirteen thousand euros) to the applicant in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount; (ii) EUR 4,000 (four thousand euros) in respect of costs and expenses, to be paid into a bank account indicated by the applicant’s representative; (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; 6. Dismisses unanimously the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 13 November 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaJosep CasadevallRegistrarPresident

FOURTH SECTION CASE OF GOUGH v. THE UNITED KINGDOM (Application no. 49327/11) JUDGMENT STRASBOURG 28 October 2014 FINAL 23/03/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Gough v. the United Kingdom, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Ineta Ziemele, President,Päivi Hirvelä,Ledi Bianku,Nona Tsotsoria,Paul Mahoney,Krzysztof Wojtyczek,Faris Vehabović, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 7 October 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 49327/11) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, Mr Stephen Peter Gough (“the applicant”), on 29 July 2011. 2. The applicant, who had been granted legal aid, was represented by Bindmans LLP, a firm of solicitors based in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton, of the Foreign and Commonwealth Office. 3. The applicant alleged, in particular, that his repeated arrest, prosecution, conviction and imprisonment for being naked in public and his treatment in detention violated his rights under Articles 3, 5 § 1, 7 § 1, 8, 9 and 10 of the Convention. 4. On 25 September 2012 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1959 and lives in Eastleigh. A. Arrest, prosecution, conviction and imprisonment 1. Background 6. The applicant adheres to a firmly held belief in the inoffensiveness of the human body. This has in turn given rise to a belief in social nudity, which he expresses by being naked in public. In 2003 he decided to walk naked from Land’s End in England to John O’Groats in Scotland, earning the nickname “the naked rambler”. 7. The following chronology is a summary of the details provided by the parties pertaining to the applicant’s arrests, prosecutions, convictions and sentences of imprisonment since July 2003. All arrests listed were the result of nudity in public unless otherwise indicated. (a) The first trek 2003/2004 8. The applicant began his trek at Land’s End in 2003. 9. He was arrested in Scotland on five occasions between 29 July 2003 and 18 August 2003 on charges of breach of the peace (see paragraphs 100‑102 below) and public indecency for being naked in public. No further action was taken in respect of the first two offences. He was released on bail in respect of the others but no further action was ultimately taken. 10. On 19 August 2003 he was arrested and detained for breach of the peace. He was released on bail on 26 August after agreeing to remain clothed. However, he was rearrested on 27 August on a charge of breach of the peace committed while on bail for being naked in public. On 3 October 2003 he was convicted at Dingwall Sheriff Court in respect of the 27 August offence and admonished. He was then released. He lodged an appeal which was later dismissed for unknown reasons. 11. Meanwhile, on 3 October 2003 following his release, he was arrested and charged with breach of the peace committed while on bail. He was remanded in custody. On 7 November 2003 he was convicted at Dingwall Sheriff Court and sentence was deferred. On 28 November 2003 a sentence of three months’ imprisonment was imposed, backdated to the date of his arrest. He was released on 29 November 2003. 12. On the same day he was arrested and charged with breach of the peace committed while on bail. He was remanded in custody. Following a trial on 7 January 2004 he was convicted and sentenced to three months’ imprisonment, backdated to 1 December 2003. He lodged an appeal which was later dismissed for unknown reasons. He was released on 15 January 2004 and resumed his trek. 13. All periods of detention were spent in HMP Inverness in segregation as the applicant refused to dress. 14. On 22 January 2004 the applicant completed his trek at John O’Groats and returned to his home in Eastleigh, England. (b) The second trek 2005/2006 15. In June 2005 the applicant commenced a second trek at Land’s End, intending to walk to John O’Groats. 16. On 1 September 2005 he was arrested in Scotland and charged with breach of the peace. He was detained on remand and convicted on 9 September. He was sentenced to fourteen days’ imprisonment. He was released on 15 September 2005. 17. Upon leaving the prison, the applicant was arrested and charged with breach of the peace. He was released on bail. 18. On 20 September 2005 the applicant was arrested and charged with breach of the peace. He was released on bail. 19. On 3 October 2005 he was arrested and charged with breach of the peace and an offence under section 27(1)(b) of the Criminal Procedure (Scotland) Act 1995 (breach of bail conditions – see paragraph 103 below). He was detained on remand. On 21 October 2005 he was convicted in Dingwall Sheriff Court of a breach of bail conditions and sentenced to imprisonment for two months, the sentence being backdated to 4 October 2005. He was found not guilty of breach of the peace. 20. He was released on 3 November 2005 and immediately rearrested. He was charged with breach of the peace and a breach of bail conditions for being naked in public. On 15 November 2005 he appeared at Edinburgh Sheriff Court naked to be tried on the charges relating to the arrest on 3 November 2005. The Sheriff found the applicant to be in contempt of court and sentenced him to three months’ imprisonment. 21. On 1 December 2005 it was decided that no further action would be taken in respect of the applicant’s arrest on 20 September 2005. 22. On 19 December 2005 the applicant appeared again for trial at Edinburgh Sheriff Court but refused to wear clothes. The Sheriff again found the applicant to be in contempt and deferred the matter of sentence. 23. On 21 December 2005 the applicant was due to stand trial at Edinburgh Sheriff Court on the charges relating to the arrest on 15 September 2005. He refused to dress. The Sheriff found him to be in contempt of court. She adjourned the trial proceedings and deferred consideration of the matter of sentence for the contempt charge until 9 January 2006. 24. On 9 January 2006 the applicant’s plea of not guilty to the two outstanding breach of the peace charges was accepted. He was convicted of breaching of bail conditions and admonished. Sentence was further deferred in respect of the contempt findings and the applicant was released on bail on 10 January 2006. 25. On 12 February 2006 the applicant was arrested for breach of the peace. No further action was taken. 26. On 14 February 2006 the applicant was again arrested for breach of the peace. He was released on bail. 27. On 21 February 2006 he completed his trek at John O’Groats. 28. On 1 March 2006 he entered Edinburgh Sheriff Court naked to face proceedings related to the outstanding findings of contempt of court. He was arrested and charged with breach of the peace. 29. On 2 March 2006 he appeared on those charges before the Sheriff. He was found to be in contempt of court for appearing naked in court and sentenced to two months’ imprisonment. He lodged an appeal against the sentence. 30. On 15 March 2006 it was decided that no further action would be taken in respect of the applicant’s arrest on 14 February 2006. 31. On 6 April 2006 the applicant was convicted of breach of the peace committed while on bail in respect of his nudity on 1 March 2006. He was sentenced to three months’ imprisonment, backdated to 2 March. It appears that he was released on 14 April 2006 and returned home to Eastleigh. 32. All periods of detention except for a week from 16-23 November 2005 were spent in segregation in HMP Inverness and HMP Edinburgh because the applicant refused to wear clothes. (c) Detention from 2006-2009 33. On 18 May 2006, during a flight from Southampton to Edinburgh to attend the appeal hearing in respect of the sentence for contempt of court, the applicant removed his clothes. Upon arrival at Edinburgh airport, he was arrested for breach of the peace and public indecency committed while on bail. He was detained on remand. On 23 June 2006 he was convicted of the charges and sentenced to four months’ and two months’ imprisonment respectively, to run concurrently backdated to 19 May. He lodged an appeal which was later dismissed for unknown reasons. He was released on 19 July 2006. 34. On the same day, he was arrested on a charge of breach of the peace committed while on bail and detained on remand. He was convicted on 25 August 2006 and a seven-month prison sentence was imposed. He lodged an appeal which was later dismissed for unknown reasons. He was released on 3 November 2006. 35. On the same day, he was arrested in the prison car park on a charge of breach of the peace committed while on bail. He was detained on remand. He appeared naked in court on 6 November 2006 and was found to be in contempt of court. A two-month sentence was imposed. On 13 December 2006 he was found guilty of breach of the peace in respect of the 3 November charge. He was sentenced to six months’ imprisonment, backdated to 5 December. He was released on 5 March 2007. 36. Upon his release, he was rearrested on a charge of breach of the peace in the prison car park. He was detained on remand. On 9 April 2007 he was found not guilty of a charge of breach of the peace as the Sheriff was not persuaded that he had caused any alarm or disturbance. He was subsequently released. 37. On 10 April 2007 he was arrested on a charge of breach of the peace and detained on remand. He was convicted on 9 May 2007 and sentenced to three months’ imprisonment, backdated to 11 April. He lodged an appeal which was later dismissed for unknown reasons. He was released on 25 May 2007. 38. On the same day, he was arrested on a charge of breach of the peace committed while on bail and detained on remand. He was convicted on 25 June 2007 and sentenced to sixty days’ imprisonment, plus fourteen days outstanding from his previous sentence. He lodged an appeal; the outcome of the appeal is not known. He was released on 31 July 2007. 39. On the same day, he was arrested on a charge of breach of the peace and detained on remand. He was convicted on 3 September 2007 and sentenced to sixty days’ imprisonment, plus twenty-three days outstanding from his previous sentence. He lodged an appeal which was later dismissed for unknown reasons. He was released on 12 October 2007. 40. On the same day he was arrested and charged with breach of the peace. It appears that he was not held in custody. Three days later, on 15 October 2007, he was arrested on a charge of breach of the peace and detained on remand. A decision was made to take no further action in respect of the 12 October arrest. 41. On 7 November 2007, while the applicant was on remand, his appeal against sentence for contempt of court was rejected by the Appeal Court of the High Court of Justiciary (“the Appeal Court”). 42. On 15 November 2007 he was convicted in respect of the 15 October arrest. Sentence was deferred and the applicant remained in detention. 43. On 30 November 2007 the applicant was sentenced to three months’ imprisonment for contempt of court in respect of a contempt finding dating back to December 2005. 44. On 4 December 2007 the applicant was sentenced to thirty days’ imprisonment in respect of each of the two outstanding contempt of court rulings, to run concurrently. 45. On 18 January 2008 the applicant appeared at Edinburgh Sheriff Court in respect of the deferred sentence for the 15 November 2007 conviction. Sentence was further deferred and the applicant was released. As he emerged from court naked, he was rearrested on a breach of the peace charge and detained on remand. On 26 February 2008 he was convicted and sentenced to four months’ imprisonment. He lodged an appeal which was later dismissed for unknown reasons. He was released on 7 March 2008. 46. On the same day, he was arrested on a charge of breach of the peace committed while on bail and detained on remand. He was convicted on 15 April 2008 and sentenced to twelve months’ imprisonment. 47. On 23 April 2008 he was admonished in respect of the breach of the peace conviction of 15 November 2007. 48. On 14 October 2008 the applicant was released. He was arrested in the prison car park on a charge of breach of the peace and detained on remand. On 14 November 2008 the Sheriff ruled that there was no case to answer. 49. The applicant was released but was immediately rearrested on a charge of breach of the peace and detained on remand. On 18 December 2008 he was convicted at Glasgow Sheriff Court. He was sentenced to eight months’ imprisonment. 50. The applicant’s detention throughout this period was spent in HMP Edinburgh, HMP Barlinnie, HMP Glenochil and HMP Perth in segregation because he refused to put on clothes. 2. The June 2009 arrest (a) The arrest 51. At around 7.45 a.m. on 18 June 2009 the applicant was released from HMP Perth. He walked out of the prison naked and was arrested, after refusing to get dressed when asked to do so by two police officers waiting some metres from the prison gates, on Edinburgh Road. He was charged in the following terms: “... [Y]ou ... did conduct yourself in a disorderly manner, did walk in a public place naked, refuse to wear any clothing when asked to do so, indicate that you had no intention of wearing any clothing when in public and did commit a breach of the peace.” 52. He pleaded not guilty and was detained in prison on remand in segregation as he refused to dress. (b) The trial proceedings 53. On 16 July 2009 the applicant’s trial took place at Perth Sheriff Court. He chose to remain naked and represented himself. He was asked by the Sheriff if he wished the services of a lawyer but replied that he did not. He maintained his plea of not guilty. The Sheriff indicated that he risked being found in contempt of court if he failed to put on clothes. The applicant refused to dress. The Sheriff allowed him to be present in court after a screen covering the lower half of his body was hastily constructed. (i) The evidence 54. The two police officers who had arrested the applicant gave evidence. Police Officer A described Edinburgh Road as a “major route into Perth” from the motorway. It was a “busy road” and at the material time there was a continuous flow of traffic along the road. He was firmly of the view that the applicant’s nudity in a public place would cause alarm to anyone. During cross-examination by the applicant, Police Officer A agreed that the human body was in itself decent and was not harmful or alarming. He accepted that nothing in the applicant’s behaviour at the time of his arrest, other than his nakedness, gave the police any cause for concern. Police Officer B gave evidence that she considered the fact that the applicant had no clothes on in a public place to be very strange and unusual and that she was “quite shocked” by it. She explained that at the time, Edinburgh Road had been very busy with vehicular and pedestrian traffic. She had previously seen elderly people and children in the area, and there were schools and housing nearby. In cross-examination she also agreed that the human body in itself was not harmful, indecent or bad but maintained that although she had been forewarned that she would be likely to see a naked man in public she had still been shocked. She confirmed that no complaints had been received from members of the public. 55. The applicant gave evidence in his defence. When asked by the prosecution why he was wearing no clothes, he replied that he was making a stand and that “we’re innocent until we do something wrong”. He did not believe that he was causing harm by not wearing clothes. He said that he did not wear clothes in order to provoke a reaction: although he had not always been like that, as he had grown older he had thought more about his beliefs. When asked what he hoped to achieve by making his stand, the applicant replied that he did it because he felt that it was right and that the world changed in its own way. (ii) The conviction and sentence 56. The Sheriff found the applicant guilty of breach of the peace and contempt of court. He considered that being naked in a public place and refusing to wear clothes in a public place was conduct that would be alarming and disturbing, in its context, to any reasonable person. In his stated case prepared in the context of the applicant’s later appeal, the Sheriff explained: “56. ... There was no dispute on the facts of the case ... I accepted that the police officers were concerned that if the appellant did not put clothes on there was a very real likelihood of him causing fear and alarm to other members of the public ...” 57. He continued: “58. The position of the appellant is somewhat difficult to understand. He made it clear to the two police officers that he had no intention whatsoever of putting clothes on. He insisted on being naked in a public place. He believed that he was doing no wrong by being naked in a public place. He did not accept that he had committed an offence.” 58. He noted that in questioning the police officers, the applicant had chosen not to differentiate between private and public places when it came to nakedness. He concluded: “60. I was entirely satisfied that the conduct of the appellant with the aggravation of his refusal to wear clothing in a public place amounted to a breach of the peace. The criteria for a breach of the peace as discussed in the case of Smith v. Donnelly had been met ... The evidence of the appellant did not raise a doubt in my mind. Accordingly I convicted the appellant as libelled.” 59. At sentencing, the Sheriff had before him the applicant’s previous convictions. According to the stated case, the applicant confirmed to the Sheriff that all previous convictions were for breach of the peace. The Sheriff’s stated case continued: “61. ... He acknowledged that he had spent the last five years or thereby in prison for the same offence. A pattern has emerged namely that on his release from prison when he ‘stepped out’ of the prison gate, always naked, he was immediately arrested. 62. I asked the appellant what he was hoping to achieve by insisting on being naked in public. He talked about ‘his beliefs’. I simply could not understand what he had to say in this regard. He did not appear to be waging any campaign or making a protest. He informed me that he would rather not be in prison. If he was not in prison, he would go back to live with his mother in a village in Cornwall. He had previously worked as a driver of large goods vehicles ...” 60. The Sheriff discussed sentencing options with the applicant. In his stated case he explained: “32. ... I enquired of him if I was minded to defer sentence for whatever reason and admit him to a bail order would he then wear clothes. After some thought the appellant stated that he would not be prepared to wear clothes ...” 61. The Sheriff’s stated case concluded: “63. Taking all these matters into account I could see no alternative to a custodial sentence. In view of the content of the Notice of Previous Convictions I deemed it appropriate to impose the maximum of 12 months’ imprisonment which I backdated to the date that he had been taken into custody.” 62. A further four months’ imprisonment, to run concurrently, was imposed for contempt of court. (c) The appeal 63. The applicant sought to appeal his conviction and sentence by way of note of appeal and a draft stated case was prepared by the Sheriff in September 2009. 64. The applicant was provided with a copy of the stated case and was asked for details of any proposed changes. By letter of 5 October 2009 the applicant proposed a number of changes. 65. On 12 October 2009 a hearing was held to consider the proposed adjustments to the case stated. The applicant was brought from HMP Perth to attend the hearing and blankets were provided to facilitate his attendance. He was told that if he refused to wear clothes or make use of the blankets he would not be admitted into the court. He refused to wear clothes or to make use of the blankets and was accordingly not permitted to attend the adjustment hearing. The hearing proceeded in his absence and his requested adjustments were considered by the Sheriff. Two adjustments were allowed and the remaining adjustments rejected. 66. Concerned that the stated case was biased, the applicant did not lodge it with the Justiciary Office. On 29 October 2009, the expiry of the applicable time-limit for lodging, his appeal was deemed abandoned. 67. The applicant spent his sentence in segregation at HMP Perth as he refused to wear clothes. On 17 December 2009 he was released from prison. 3. The December 2009 arrest 68. Minutes after his release on 17 December 2009, the applicant was arrested and charged with breach of the peace for being naked in public. He was detained on remand. 69. On 11 January 2010 he was convicted of breach of the peace. Sentence was deferred to 8 February for up-to-date psychiatric and psychological assessments. 70. On 8 February 2010 the applicant was sentenced to a term of twelve months’ imprisonment plus 180 days unserved from previous sentences. He lodged an appeal; the outcome of the appeal is not known. He was kept in segregation at HMP Perth while in prison because he refused to dress. 71. He was released on 29 October 2010. 4. The October 2010 arrest 72. Minutes after his release on 29 October 2010, the applicant was arrested and charged with breach of the peace for being naked in public. He was detained on remand. 73. On 24 November 2010 he was found guilty of breach of the peace and contempt of court. On 25 November he was sentenced to 312 days’ imprisonment in respect of the breach of the peace charge together with 74 days unserved from previous sentences plus 90 days for contempt of court, to be served consecutively. He was not kept in segregation while in prison at HMP Perth. 74. He was released on 20 July 2011. 5. The July 2011 arrest (a) The arrest 75. Minutes after his release on 20 July 2011 at around 9 a.m., the applicant was approached by two police officers on Manson Terrace, a public road leading from HMP Perth to Edinburgh Road. The officers suggested that he put on some clothes but he refused to do so. He was arrested him for breach of the peace and detained on remand. He appeared in court on 21 July 2011 and pleaded not guilty. (b) The trial proceedings 76. The trial commenced on 24 August 2011. The applicant appeared in court naked and was warned by the Sheriff that if he refused to dress or to cover himself he might be held in contempt of court. He refused to put on clothes. (i) The evidence 77. The prosecution led evidence of two police officer witnesses at trial. Their evidence was similar to that given at the 2009 trial and the applicant’s cross-examination was also in similar terms and elicited similar responses (see paragraph 54 above). 78. The applicant did not give evidence in his defence. He argued that his arrest and trial violated the Convention. He relied, inter alia, on Article 5, arguing that there was no reasonable suspicion which would satisfy an objective observer that he had committed an offence; Article 8, arguing that his arrest was arbitrary as it was based on the subjective belief that his nakedness was offensive; Article 9, arguing that he had a strong view that there was nothing indecent about his body and that view was not being respected; Article 10, arguing that he ought to have been given the right to express his views that nakedness was not indecent in the way that he had chosen to do; and Article 14, arguing that he was being discriminated against because he had different views from the majority of people. (ii) The conviction and sentence 79. The Sheriff found that the applicant’s conduct on 20 July 2011 was severe enough to cause alarm to ordinary people; threatened serious disturbance to the community; and presented as genuinely alarming, in its context, to any reasonable person. He therefore convicted the applicant. In his stated case prepared in the context of the later appeal proceedings, the Sheriff referred to the applicant’s Convention arguments and continued: “14. I should say that none of these arguments were developed to any extent and it was not always easy to see what [the applicant’s] full argument was. I came to the conclusion that none of the articles suggested by the appellant had been contravened in the procedure ...” 80. As to the conviction handed down, he explained: “15. In my view there was no doubt about the facts in this case ... The question was whether the conduct amounted to a breach of the peace. I was of the view that the first part of the test was easily met by the conduct. The appellant was walking along a public street in full view of anyone passing and he was completely naked with his private parts entirely on show. Such conduct would be severe enough to cause alarm to ordinary people especially when it was being carried out in an ordinary public street. It might be different if he had been naked somewhere in private, even in a public place which was remote or where fewer people would be congregated, but in or near one of the main streets of a busy town his appearance in that state would be alarming. 16. The question which was more troubling was whether the second part of the test was met. Would the conduct cause serious disturbance to the community? I came to the conclusion that the context in which the conduct was taking place – being naked in a brazen fashion in the public street with no attempt to cover himself and no obvious explanation or reason for the conduct – would cause serious disturbance to the community because of the reaction of ordinary people to his presence in that state in that place. That would be particularly so if the community could see that children or vulnerable old people might be present. I considered that the test was met and that the charge was proved beyond reasonable doubt. I therefore found the appellant guilty.” 81. The applicant was sentenced to a term of imprisonment of 330 days for the breach of the peace and 90 days for the contempt charge, together with 237 days unspent from his previous sentence, a total of 657 days. The sentences were not backdated and they were to run consecutively. The total length of the sentence was therefore one year, nine months and eighteen days. (c) The appeal 82. The applicant sought to appeal his conviction by way of note of appeal and a draft stated case was prepared by the Sheriff. 83. Adjustments to the stated case were proposed by both parties and a hearing was held. The applicant was not permitted to attend the hearing since he refused to wear clothes. 84. On 28 October 2011 the applicant lodged an appeal by way of case stated, relying on Articles 5, 6, 7, 8, 9, 10 and 14 of the Convention. 85. On 18 November 2011 the applicant’s application for leave to appeal was considered by the first sift judge. Leave was refused for the following reasons: “The appeal is not arguable. The Sheriff has carefully explained the reasons for arriving at his decision. There was no infringement of the appellant’s rights in terms of the European Convention on Human Rights.” 86. On 22 December 2011 the applicant was refused leave on the second sift. The judges found that for the reasons given by the first sift judge the appeal was not arguable. 87. The applicant was not kept in segregation while serving his sentence at HMP Perth. He was released on 17 July 2012. 6. Subsequent arrests in Scotland 88. On the same day the applicant was arrested and charged with breach of the peace. He was not held in custody. On 2 August 2012 a decision was made to take no further action. 89. Meanwhile, on 20 July 2012 he was arrested on the outskirts of Dunfermline and charged with breach of the peace. He was detained on remand and appeared at Kirkcaldy Sheriff Court in August 2012. He was convicted of breach of the peace and detained at HMP Edinburgh and HMP Kilmarnock. He was kept in segregation during his detention. 90. He was released on 5 October 2012 and headed south towards his home in Eastleigh. B. Treatment while in prison 1. Background facts (a) Medical treatment regarding lump on testicle 91. In April 2011 the applicant discovered a lump on his right testicle. He was examined in his cell but was required to wear clothes for external appointments. He refused to dress and subsequently made prison complaints about alleged inadequate medical treatment. When they were unsuccessful, he referred the complaints to the Scottish Ministers but on 10 August 2011 he was informed that they were not upheld. The applicant then contacted the Scottish Public Services Ombudsman (“the Ombudsman”). However, he was advised that his complaint was not one which the Ombudsman could pursue. On 8 February 2012 he was told that the lump had gone. (b) Visits from family and friends 92. On 27 August 2011 the applicant made a prison complaint that he was not allowed visits. He was told in reply that he was permitted visits provided that he was appropriately dressed. He referred the complaint to the Internal Complaints Committee (“ICC”) on 1 September 2011. He was advised on 26 September 2011 that the ICC had fully endorsed the suggestion that visits be accommodated in the segregation unit. He was told to discuss this with the relevant staff and book a visit. No visits took place. 93. On 9 November 2011 the applicant contacted the Ombudsman with a complaint that the Scottish Prison Service (“SPS”) was unreasonably refusing to enable him to receive visits. By letter dated 10 January 2012 he was informed that the Ombudsman had not upheld the complaint because according to information from the SPS, he had been asked to cover his genitalia when walking from A Hall, where he was detained, to the segregation unit. He had refused to do so. (c) General dental and medical treatment 94. On 14 September 2011 the applicant made a prison complaint about refusal of dental and general medical treatment over the previous five years while he was in detention. By reply dated 20 September 2011 he was advised that the full range of clinical services were available to prisoners and that he was required to comply with the dress code to attend appointments. He referred the complaint to the Scottish Ministers, who did not uphold his complaint. (d) Association with other prisoners and exercise 95. As noted above, the applicant spent much of his detention in segregation. Even when not in segregation, his ability to participate in activities and to associate with other prisoners was generally limited as long as he remained naked. He was not permitted to access the gym, for health and safety reasons. However, efforts were made to give him access to books and to explore further work or hobbies that could be conducted in his cell. Throughout his time in segregation, the applicant was reviewed regularly by health care professionals. 96. On 29 January 2012 the applicant complained to the prison authorities that he was not allowed to associate with other prisoners or to exercise. By reply dated 31 January 2012 he was told that he was not being denied association or exercise but had excluded himself from these activities by refusing to wear clothes. The applicant referred the complaint to the ICC on 2 February 2012 but the ICC decided that the current arrangements were satisfactory. It noted that if the applicant were to wear clothes, he would be permitted to associate with other prisoners. However, his choice to remain naked gave rise to serious concerns that he might be the victim of violence or unwarranted comments, and the prison had an obligation to ensure his safety. 97. In March 2012 the applicant complained to the Ombudsman that the SPS had given an unreasonable explanation for denying him access to association and exercise. By reply dated 24 May 2012 the Ombudsman informed him that his complaint had not been upheld because prison staff had confirmed that if he wore clothes, he would be able to associate with other prisoners and exercise. 2. Attempts to secure legal representation and exemption from court fees 98. The applicant contacted the Law Society of Scotland seeking details of solicitors in Edinburgh experienced in judicial review. He received a list containing the names of fourteen firms, which he duly contacted. None were willing to represent him. However, a further seven firms were recommended to him. He contacted them and was informed that none were willing to represent him. 99. He then contacted the Court of Session to request information regarding exemption from court fees, with a view to commencing judicial review proceedings without legal assistance. He was advised that as he was a prisoner and not in receipt of any State benefits, he was not eligible for exemption from court fees. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Criminal offences in Scotland 1. Breach of the peace 100. The leading case as to what constitutes a breach of the peace under Scots law is Smith v. Donnelly 2001 SLT 1007, where the Appeal Court said: “17. The crime of breach of the peace can be committed in a wide variety of circumstances, and, in many cases, it is a relatively minor crime. It has therefore been said, more than once, that a comprehensive definition which would cover all possible circumstances is neither possible nor desirable. Equally, in our view, it is neither possible nor desirable to derive a comprehensive definition from a close analysis of the facts of individual cases in which it has been held that a breach of the peace had been committed ... [I]t is, in our view, clear that what is required to constitute the crime is conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community ... What is required, therefore, it seems to us, is conduct which does present as genuinely alarming and disturbing, in its context, to any reasonable person. 18. That interpretation is supported by the fact that ... if there is no evidence of actual alarm, the conduct must be ‘flagrant’ if it is to justify a conviction. ‘Flagrant’ is a strong word and the use of that word points to a standard of conduct which would be alarming or seriously disturbing to any reasonable person in the particular circumstances ... We therefore conclude that the definition of the crime found in the principal authorities does meet the requirements of the Convention.” 101. In Her Majesty’s Advocate v. Harris [2010] HCJAC 102, the Appeal Court, citing Smith, emphasised that it was now clear that the crime of breach of the peace involved two elements: conduct (1) severe enough to cause alarm to ordinary people and (2) which threatened serious disturbance to the community. 102. The maximum sentence for a breach of the peace depends upon the court in which the offence is tried. When prosecuted in summary proceedings in the Sheriff Court, the maximum sentence is a fine of up to five thousand pounds sterling or imprisonment of one year. 2. Breach of bail conditions 103. Pursuant to section 27(1)(b) of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”), it is an offence to fail, without reasonable excuse, to comply with any condition imposed on bail. Section 27(2) provides that a person guilty of an offence under section 27(1) is liable to a fine or to imprisonment for up to twelve months. 3. Contempt of court 104. In HM Advocate v. Airs 1975 JC 64 contempt of court was described as: “conduct which challenges or affronts the authority of the court or the supremacy of the law itself.” 105. Every court in Scotland has the inherent power to punish persons who are in contempt of it. Where contempt occurs in the court itself, it may be dealt with immediately by the judge without a prior formal charge. 106. Pursuant to section 15(2) of the Contempt of Court Act 1981, contempt of court in summary proceedings before a Sheriff is punishable by a fine or imprisonment for up to three months. B. Criminal proceedings in Scotland 1. The decision to prosecute 107. In Scotland, the decision whether to prosecute an individual is taken by the Crown Office. The Crown Office is wholly independent of the police and is under the responsibility of the Scottish Law Officers (the Lord Advocate and the Solicitor General). 108. There are two forms of criminal procedure in Scotland. The most serious crimes are tried under “solemn procedure” on indictment. Determinations of fact in such cases are made by a jury. Less serious crimes are tried under “summary procedure” by a judge sitting without a jury. 2. The determination of the sentence in summary proceedings 109. In summary proceedings, the Sheriff determines the sentence to be imposed on a person found guilty. He is required to take into account a number of considerations including: the offender’s personal circumstances; his criminal record or lack thereof; the circumstances of the offence; the age of the offender (if under 21); the absence of any previous custodial sentence; any guidance issued by the High Court; any plea of guilty; and any time spent in custody awaiting trial. The court may decide that it is sufficient to admonish a person found guilty. Typically, this may be done where the case concerns a first offence or is minor or there are other extenuating circumstances. 3. The procedure for appeal in summary proceedings 110. Section 175 of the 1995 Act provides for the possibility of lodging an appeal against conviction in summary proceedings. Section 175(2) stipulates that leave is required. 111. Pursuant to section 176(1), any appeal against conviction must be by way of case stated. The presiding judge at the trial must prepare a draft stated case and provide a copy to the appellant. The stated case sets out the matters competent for review by the High Court, the facts proved in the case, any points of law decided and the reasons for the decision. Parties to the proceedings may propose adjustments to the stated case. If adjustments are proposed, the judge must arrange a date for a hearing for the purpose of considering proposed adjustments. Once the case stated has been finalised, a copy is sent to the appellant, who must lodge it with the Clerk of Justiciary within one week of receipt. If he fails to do so, the appeal will be deemed abandoned. 112. Under sections 180 and 187 of the 1995 Act, the decision whether to grant leave to appeal against conviction or sentence is made by a judge of the High Court who, if he considers that there are arguable grounds of appeal, must grant leave to appeal and make such comments in writing as he considers appropriate. In any other case, the judge must refuse leave to appeal and give reasons in writing for the refusal. C. Prison Rules and Directions 113. The Prison Rules are contained in secondary legislation. At the relevant time the rules were set out in the Prisons and Young Offenders Institutions (Scotland) Rules 2006 (“the Prison Rules 2006”). From 1 November 2011, the relevant rules were the Prisons and Young Offenders Institutions (Scotland) Rules 2011 (“the Prison Rules 2011”). There is no material difference between the two sets of rules in so far as they applied to the applicant. The references below are to the 2006 Rules. 1. Rules on segregation 114. Rule 94(1) of the Prison Rules 2006 provided that a prisoner could be removed from association with other prisoners for the purpose of maintaining good order or discipline; protecting the interests of any prisoner; and ensuring the safety of others. 115. Pursuant to Rule 94(4), a segregation order had to specify the nature of the removal from association and the reasons for making the order. Segregation was limited to a maximum of 72 hours unless an extension had been authorised specifically by the Scottish Ministers for a further month at a time (see Rule 94(5) and (6)). A prisoner was entitled to receive the reasons for his segregation and to make representations to the Scottish Ministers in respect of any application to extend segregation beyond 72 hours. 116. Rule 94(7) provided that the prison governor was obliged to cancel a segregation order if he was advised by a medical officer that it was appropriate to do so on health or welfare grounds. Pursuant to Rule 94(10), where a prisoner was removed from association, a medical officer was required to visit the prisoner as soon as practicable and thereafter as often as is necessary but at least once in every seven days. 117. Similar provisions appear in Rule 95 of the Prison Rules 2011. 2. Rules on medical care 118. Part 5 of the Prison Rules 2006 addressed health and welfare issues. Rule 32 provided that the Scottish Ministers were required to make arrangements for the provision at every prison of appropriate medical services and facilities for the maintenance of good health, the prevention of illness, the care of prisoners suffering from illness or the aftercare of such prisoners. 119. Rule 33 provided that a medical officer had to attend prisoners who complained of illness at such times, and with such frequency, as the medical officer judged necessary in the circumstances. The Governor was obliged, without delay, to bring to the attention of a medical officer any prisoner whose physical or mental condition appeared to require attention (Rule 34). Rule 35 made provision for a medical officer to make arrangements for consultation of specialists. 120. Similar provisions can be found in Part 5 of the Prison Rules 2011. 121. The Prison Rules are supplemented in this respect by the Health Board Provision of Healthcare in Prisons (Scotland) Directions 2011. 3. Rules on general daily life 122. Further general obligations are set out in the Prison Rules. These include the provision of reasonable assistance and facilities to develop relationships with family and friends; facilitation of the practice of a prisoner’s religion or belief within the prison; enabling visits to the prisoners; provision of purposeful activities (including work, education, counselling and vocational training); daily opportunity to exercise and spend time in the open air; and provision of reasonable facilities and opportunities to participate in recreational activities outwith normal working hours. III. COMPARATIVE LAW MATERIALS 123. The Court requested the parties to provide comparative information concerning the approach of other member States of the Council of Europe to nudity in public. The Government submitted information on the law and practice in nineteen of the forty-six other member States. 124. It appears from the data provided that of the nineteen States surveyed, only the Netherlands expressly criminalises public nudity. It is punishable by the imposition of an administrative fine. 125. Other States (Andorra, Belgium, France, Germany and Switzerland) appear to penalise “exhibitionism”, but the term is rarely defined. It seems that sanctions vary but the data provided in this respect are incomplete. 126. According to the data, a number of States have some form of public decency, public order or public peace legislation that might extend to prohibiting public nudity (Belgium, Croatia, the Czech Republic, Denmark, Estonia, Germany, Greece, Italy, Lithuania, the Netherlands, San Marino, Poland, Romania, Russia, Slovenia, Sweden and Switzerland). While sentencing information has not been provided for some of the States (Denmark, Estonia and Russia), it appears that sentencing powers generally vary from the imposition of fines only (the Czech Republic, Germany, Slovenia, Sweden and Switzerland) to the possibility of imprisonment (Belgium, Croatia, Greece, Italy, Lithuania, the Netherlands, Poland, Romania and San Marino). THE LAW I. THE APPLICANT’S REPEATED ARREST, PROSECUTION, CONVICTION AND IMPRISONMENT 127. The applicant complained about his repeated arrest, prosecution, conviction and imprisonment for being naked in public. In his first letter he invoked Articles 5, 6, 7, 8, 9, 10, 13 and 14 of the Convention as well as Articles 2 and 4 of Protocol No. 7. A. Compliance with Article 35 § 1 1. The parties’ submissions (a) The Government 128. The Government alleged that in respect of this complaint the applicant had failed to comply with Article 35 § 1, which provides: “The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.” 129. First, the Government argued that each arrest and conviction was a separate incident which could not be viewed as a continuing situation. They emphasised that there was no policy on the part of the police or the prosecuting authorities as regards public nudity and their response to the applicant’s repetition of discrete instances of criminal conduct did not make that conduct “continuing”. They noted that in his first letter the applicant had complained about his 18 June 2009 arrest and subsequent conviction only. Although he had later referred to his July 2011 arrest and subsequent conviction, the Government were of the view that he had not specifically complained about that arrest and conviction. They therefore contended that the complaint had been lodged outside the six-month time-limit stipulated in Article 35 § 1 of the Convention. 130. Second, the Government argued that the applicant had failed to exhaust domestic remedies. While he had initiated an appeal by stated case, he had abandoned it on the unsupported allegation that the stated case was biased. According to the Government, this was not a credible or acceptable basis to decline to bring his conviction under review by the competent domestic court. (b) The applicant 131. The applicant reiterated that he had been repeatedly prosecuted and punished for public nudity and did not accept that his complaints had been lodged out of time. Relying on McFeeley and Others v. the United Kingdom, no. 8317/78, Commission decision of 15 May 1980, Decisions and Reports (DR), 20, p. 44, he maintained that his case concerned a permanent state of affairs which was still continuing and that the question of the six-month rule could only arise after the state of affairs had ceased. 132. He further maintained that he had exhausted all domestic remedies available to him. He had appealed his August 2011 conviction by case stated, invoking arguments under the Convention, and was refused leave to appeal at the first and second sifts in December 2011. There was no further avenue of appeal under Scots law. In these circumstances, there was no prospect of obtaining damages. 2. The Court’s assessment (a) The six-month rule 133. The object of the six-month time-limit under Article 35 § 1 is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with in a reasonable time and that past decisions are not continually open to challenge. As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. However, it has been said that the six-month time-limit does not apply as such to continuing situations because, if there is a situation of ongoing breach, the time-limit in effect starts afresh each day and it is only once the situation ceases that the final period of six months will run to its end (Chiragov and Others v. Armenia [GC] (dec.), no. 13216/05, § 126, 14 December 2011). 134. In the present case, each arrest, with the ensuing prosecution, conviction and sentence of imprisonment, was a discrete incident which followed directly upon the applicant’s appearance naked in public on different occasions. As the Government pointed out and as is evident from the facts as outlined, the applicant has enjoyed periods of liberty between his periods of detention, even if sometimes only for a few minutes. Accordingly, while the cycle of release and rearrest can be said to constitute a pattern, it cannot be viewed as a continuing situation within the meaning of the Court’s case-law (compare and contrast McFeeley and Others, cited above, § 24). The six-month period therefore began to run in respect of each conviction from the date of the final domestic decision in the case. 135. In his first letter to the Court, dated 29 July 2011, the applicant complained about his arrest in June 2009, his subsequent conviction and the appeal proceedings. His appeal in respect of that conviction was abandoned on 29 October 2009. Had his complaint been directed solely at that conviction, it would have been lodged outside the six-month time-period allowed by Article 35 § 1. 136. However, in his subsequent application form, dated 20 December 2011, he complained that his “repeated conviction and imprisonment for the offence of breach of the peace owing to his refusal to wear clothes in public” amounted to a violation of the Convention. He set out details of his arrest on 20 July 2011 and conviction on 24 August 2011, with reference to his pending appeal. The Court is therefore satisfied that he also complained about his 2011 arrest and conviction, in the wider context of a pattern of prosecutions and convictions for being naked in public. Leave to appeal in respect of the July 2011 conviction was refused on 22 December 2011. The applicant having first notified the Court of this complaint on 20 December 2011, he has therefore complied with the six-month time-limit in this respect. (b) Non-exhaustion of domestic remedies 137. It is primordial that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. This Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It cannot, and must not, usurp the role of Contracting States whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. The rule of exhaustion of domestic remedies is therefore an indispensable part of the functioning of this system of protection. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see, amongst many authorities, Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996‑IV; and Blatchford v. the United Kingdom (dec.), no. 14447/06, 22 June 2010). 138. As stipulated in its Akdivar judgment (cited above, §§ 66-67), 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. 139. As the Court also held in Akdivar (cited above, § 68), in the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement. 140. Finally, the application of the rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up and that it must therefore be applied with some degree of flexibility and without excessive formalism (see Akdivar, cited above, § 69). 141. It is apparent that the applicant sought to appeal his 2011 conviction by way of case stated (see paragraphs 84 above). In his appeal, he invoked Articles 5, 6, 7, 8, 9, 10 and 14 of the Convention. Permission to appeal was refused on the second sift on 22 December 2011 (see paragraph 86 above). The applicant has accordingly exhausted available domestic remedies in respect of his complaint. (c) Conclusion on compliance with Article 35 § 1 of the Convention 142. In conclusion, the applicant has satisfied the requirements of Article 35 § 1 of the Convention in respect of his complaint about his 2011 arrest, prosecution, conviction and imprisonment, as one incident in a pattern of arrests, prosecutions and convictions over a number of years which was continuing at the time that he lodged his application. The relevance of this broader context will be discussed further in the examination of the admissibility and merits of his individual complaints, below. B. The alleged violations of Articles 5 § 1 and 7 § 1 of the Convention 143. As noted above, in his first letter the applicant invoked Articles 5 § 1 (guaranteeing the right to liberty and security) and 7 § 1 (prohibiting punishment without law) in respect of his repeated arrest, prosecution, conviction and sentence, without providing further details of the precise nature of the complaints. He did not reiterate these complaints in the application form subsequently lodged by his solicitors. Although the Court sought written observations on the complaints under these Articles from the parties, the applicant did not subsequently make any relevant written submissions. 144. The applicant, who was legally represented, chose not to pursue the complaints either in his application form or in his written submissions. In the circumstances, the Court sees no reason to examine the complaints. C. The alleged violation of Article 10 of the Convention 145. Article 10 of the Convention provides: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 1 Scope of the complaint 146. As noted above, while citing two particular instances of arrest and conviction, the applicant clearly complained about his repeated arrest, prosecution, conviction and imprisonment for the offence of breach of the peace owing to his refusal to wear clothes in public. Although the Court has concluded that this did not amount to a continuing situation for the purposes of the six-month rule in Article 35 § 1 of the Convention, it did accept that the incidents formed part of a pattern of arrests, prosecutions, convictions and sentences of imprisonment for being naked in public (see paragraph 142 above). It would be artificial to ignore this wider pattern when considering the compliance of the measures with the applicant’s Article 10 rights, since it is precisely their repeated nature which has led to the applicant’s detention for a number of years. The Court will therefore examine the compatibility of the applicant’s 2011 arrest, prosecution, conviction and imprisonment with Article 10 of the Convention in the light of the pattern of prior and subsequent such incidents. 2. Applicability of Article 10 and the admissibility of the complaint 147. The applicant argued that public nudity was a clear form of expression within the meaning of Article 10 of the Convention. The term “expression” had been widely construed by the Court to cover various different forms of expression, including expression in words, in pictures, by video and through conduct intended to convey an idea or information. In his case, the decision not to wear clothes was a direct expression of his principled views on the human body. His complaint therefore fell within the scope of Article 10 of the Convention. 148. The Government responded that there had been no restriction placed on the applicant in this regard and that he was free to advocate his views. They did not accept that wearing no clothes constituted freedom of expression or that the requirement to wear clothes in certain contexts prevented freedom of expression. 149. The protection of Article 10 extends not only to the substance of the ideas and information expressed but also to the form in which they are conveyed (Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298). The Court accepts that the right to freedom of expression may include the right for a person to express his ideas through his mode of dress or his conduct (see, respectively, Stevens v. the United Kingdom, no. 11674/85, Commission decision of 3 March 1986, DR 46, p. 245, and Kara v. the United Kingdom, no. 36528/97, Commission decision of 22 October 1998, unreported; and Smith and Grady v. the United Kingdom (dec.), nos. 33985/96 and 33986/96, 23 February 1999). In Donaldson v. the United Kingdom (dec.), no. 56975/09, § 20, 25 January 2011, it found that the applicant’s decision to wear an Easter lily (a symbol to commemorate the Irish republican combatants who died during, or were executed after, the 1916 Easter Rising in Ireland) had to be regarded as a way of expressing his political views (see also Vajnai v. Hungary, no. 33629/06, § 29, ECHR 2008). In Steel and Others v. the United Kingdom, 23 September 1998, § 92, Reports 1998‑VII, the Court held that protests, which took the form of physically impeding the activities of which the applicants disapproved, constituted expressions of opinion within the meaning of Article 10 (see also Hashman and Harrup v. the United Kingdom [GC], no. 25594/94, § 28, ECHR 1999‑VIII). 150. In the present case, the applicant has chosen to be naked in public in order to give expression to his opinion as to the inoffensive nature of the human body (see paragraphs 55 and 147 above). The Court is therefore satisfied that the applicant’s public nudity can be seen as a form of expression which falls within the ambit of Article 10 of the Convention and that his arrest, prosecution, conviction and detention constituted repressive measures taken in reaction to that form of expression of his opinions by the applicant. There has therefore been an interference with his exercise of his right to freedom of expression. 151. In view of the submissions of the parties, the Court considers that the complaint raises complex and serious issues under Article 10 of the Convention which cannot be dismissed as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established and it must therefore be declared admissible. 3. Merits of the complaint 152. An interference with the right to freedom of expression can only be justified under Article 10 § 2 if it is prescribed by law, pursues one of more of the legitimate aims to which Article 10 § 2 refers and is necessary in a democratic society in order to achieve any such aim. (a) Prescribed by law (i) The parties’ submissions 153. The applicant argued his criminal prosecution for public nudity was not prescribed by law. He did not expand upon this submission. 154. The Government contended that the interference was prescribed by law. They noted that the various measures were taken on the basis of domestic law. It was not the role of this Court to consider whether the domestic law had been correctly applied to the applicant and whether he had been correctly convicted. (ii) The Court’s assessment 155. The applicant failed, in the context of his written submissions under Article 10, to explain the nature of his challenge to the legality of the measures taken against him. Having regard to the Court’s finding in Lucas v. the United Kingdom (dec.), no. 39013/02. 18 March 2003, that the definition of the offence of breach of the peace as stipulated in Smith v. Donnelly (see paragraph 100 above) was sufficiently precise to provide reasonable foreseeability of the actions which might fall within the remit of the offence, the Court is satisfied that the interference in the present case both had a sufficient legal basis in domestic law and was “prescribed by law” in the wider sense of having the quality required of “law” in a democratic society. (b) In pursuit of a legitimate aim (i) The parties’ submissions 156. The applicant contended that his arrest, prosecution, conviction and imprisonment were not in pursuit of any of the stated aims listed in Article 10 § 2. He did not elaborate on this submission. 157. The Government argued that the measures pursued the aim of preventing disorder and crime by preventing breaches of the peace in public. (ii) The Court’s assessment 158. Having regard to all the circumstances surrounding the actions of the applicant and the police, the Court accepts that the measures aimed to prevent disorder and crime. However, the parties did not make detailed submissions identifying more clearly the precise nature of the disorder and crime which the measures were taken to prevent. It is clear that in a straightforward sense, the measures were designed to prevent the applicant’s committing breach of the peace through causing offence to and alarming other members of the public by confronting them with his naked state in public. However, the applicant’s arrest, prosecution, conviction and imprisonment can be seen to have pursued the broader aim of seeking to ensure respect for the law in general, and thereby preventing the crime and disorder which would potentially ensue were the applicant permitted to continually and persistently flout the law with impunity because of his own personal, albeit sincerely held, opinion on nudity. (c) Necessary in a democratic society (i) The parties’ submissions (α) The applicant 159. The applicant argued that there was no pressing social need to justify the restrictions on public nudity or that, if there was, such restrictions were not proportionate to that need. 160. In the applicant’s view, the responses of other Council of Europe States to public nudity (see paragraphs 123-126 above) reinforced his submission as to the disproportionality of his repeated arrest and imprisonment in the absence of any suggestion that he intended to cause harassment or disturbance to the public. A significant majority of States either did not treat public nudity as a criminal offence or treated it as a minor misdemeanour susceptible to a fine or a short period of imprisonment. This was to be contrasted with his situation, where he had served almost seven years in prison for public nudity following a pattern of arrest, prosecution, conviction, imprisonment, release and immediate re‑arrest. He therefore invited the Court to find a violation of Article 10 of the Convention. (β) The Government 161. The Government argued that defining the scope of the crime of breach of the peace was peculiarly sensitive to the mores of individual States. As regards the responses of other States to public nudity, they emphasised that the period which the applicant had spent in prison was not the result of a one-off offence attracting a response by the authorities which was out of step with other Council of Europe States. One-off offences of the nature at issue in the present case also attracted minor responses from the prosecuting authorities in the United Kingdom. The applicant’s imprisonment, on the other hand, arose from his repeat offending. In an area of criminal policy where there was a divergence of views among the Council of Europe member States, such as in the present case, a particularly wide margin of appreciation applied. 162. The Government maintained that any interference was justified and proportionate. It was confined to preventing certain conduct by reason of its adverse impact, or potentially adverse impact, on others and on the public order, in a public context. They further emphasised that any person who exercised freedom of expression undertook duties and responsibilities that included the obligation to avoid expressions which were offensive to others and which did not contribute to any form of public debate capable of furthering progress in human affairs. The Government were of the view that the applicant had failed to act consistently with this principle. 163. Finally, they pointed out that the applicant was not tried for every offence alleged; that not every trial resulted in a conviction; and that not every conviction resulted in a term of imprisonment. As far as the forty-two offences for which he was arrested in Scotland in the nine-year period between July 2003 and July 2012 were concerned, the Crown decided not to initiate proceedings in respect of twelve. The applicant was acquitted in respect of three offences on a finding of not guilty, on the acceptance of a no case to answer submission and on the acceptance of a not guilty plea, respectively. In respect of the remaining twenty-seven offences of which he was convicted, the applicant was admonished on three occasions. A term of imprisonment of three months had only been imposed after the seventh occurrence of a breach of the peace. It was also relevant that the Sheriff had specifically raised the possibility of a deferred sentence with the applicant following his conviction in July 2009 if he agreed to wear clothes, but the applicant had refused to agree (see paragraph 60 above). (ii) The Court’s assessment (α) General principles 164. Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to Article 10 § 2, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’ (see Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24; Donaldson, cited above, § 27; Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 100, ECHR 2013 (extracts)). 165. This freedom is subject to exceptions pursuant to Article 10 § 2, which must be construed strictly: the need for any restrictions must be established convincingly. The adjective “necessary”, within the meaning of Article 10 § 2, implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10 (see Mouvement raëlien suisse v. Switzerland [GC], no. 16354/06, § 48, 13 July 2012; and Animal Defenders International, cited above, § 100). 166. The breadth of the margin of appreciation to be afforded depends on a number of factors. The national authorities enjoy a wide margin of appreciation in matters of morals, since there is no uniform European conception of morals. Accordingly State authorities are in principle better placed than the international judge to give an opinion on the exact content of the requirements of morals as well as on the necessity of measures intended to meet them (see Handyside, cited above, § 48; and Open Door and Dublin Well Woman v. Ireland, 29 October 1992, § 68, Series A no. 246‑A). A narrow margin of appreciation applies in respect of debates on questions of public interest and the freedom of expression enjoyed by the press when exercising its vital role as a public watchdog (Animal Defenders International, cited above, § 102). While they do not benefit from the special protection afforded to the press, even small and informal campaign groups must be able to carry on their activities effectively. There exists a strong public interest in enabling such groups and individuals, outside the mainstream, to contribute to the public debate by disseminating information and ideas on matters of general public interest such as health and the environment (Steel and Morris v. the United Kingdom, no. 68416/01, § 89, ECHR 2005-II and, mutatis mutandis, Bowman v. the United Kingdom, 19 February 1998, Reports 1998‑I). 167. It must also be borne in mind that, by virtue of the express terms of paragraph 2 of Article 10, whoever exercises his freedom of expression undertakes duties and responsibilities, the scope of which depends on his situation and the technical means he uses. These duties and responsibilities must be taken into account in the Court’s assessment of the necessity of the measure (see Handyside, cited above, § 49; and Hachette Filipacchi Associés v. France, no. 71111/01, § 42, 14 June 2007). The Court has previously found that, in the context of religious opinions and beliefs, such duties and responsibilities may include an obligation to avoid as far as possible expressions that are gratuitously offensive to others and thus an infringement of their rights, and which therefore do not contribute to any form of public debate capable of furthering progress in human affairs. This being so, it said, it may be considered necessary in certain democratic societies to sanction or even prevent improper attacks on objects of religious veneration, provided always that the penalty imposed be proportionate to the legitimate aim pursued (see Otto-Preminger-Institut v. Austria, 20 September 1994, § 49, Series A no. 295‑A). 168. However, although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of people from minorities and avoids any abuse of a dominant position (see Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 112, ECHR 1999-III; Leyla Şahin [GC], cited above, § 108; and Bayatyan v. Armenia ([GC], no. 23459/03, § 126, 7 July 2011). Pluralism and democracy must be based on dialogue and a spirit of compromise, necessarily entailing various concessions on the part of individuals or groups of individuals, which are justified in order to maintain and promote the ideals and values of a democratic society (see Leyla Şahin [GC], cited above, § 108; and Tănase v. Moldova [GC], no. 7/08, § 178, ECHR 2010). Respect by the State of the views of a minority by tolerating conduct which is not per se incompatible with the values of a democratic society or wholly outside the norms of conduct of such a society, far from creating unjust inequalities or discrimination, ensures cohesive and stable pluralism and promotes harmony and tolerance in society (see, mutatis mutandis, Bayatyan, cited above, § 126). 169. Finally, in assessing the proportionality of a restriction on freedom of expression, the nature and severity of the penalties imposed are factors to be taken into account (see Ceylan v. Turkey [GC], no. 23556/94, § 37, ECHR 1999‑IV; Tammer v. Estonia, no. 41205/98, § 69, ECHR 2001‑I; and Skałka v. Poland, no. 43425/98, § 38, 27 May 2003). 170. The Court will, in light of all of the above considerations, assess whether the reasons relied on by the competent national authorities, notably the courts, to justify the measures were both “relevant” and “sufficient” and whether the resultant interference was proportionate to the legitimate aim pursued. In this respect, the Court reiterates that it is not its task to take the place of the national authorities but it must review, in the light of the case as a whole, those authorities’ decisions taken pursuant to their margin of appreciation (Animal Defenders International, cited above, § 105). In conducting its review, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and that they based their decisions on an acceptable assessment of the relevant facts (see Donaldson, cited above, 26). (β) Application of the general principles to the facts of the case 171. The present case concerns the applicant’s 2011 arrest, prosecution, conviction and imprisonment for the offence of breach of the peace on account of his appearing naked in public, in the context of a pattern of previous such measures. 172. The Court is prepared to accept that the extent to which, and the circumstances in which, public nudity is acceptable in a modern society is a matter of public interest. The fact that the applicant’s views on public nudity are shared by very few people is not, of itself, conclusive of the issue now before the Court (see, mutatis mutandis, Young, James and Webster v. the United Kingdom, 13 August 1981, § 63, Series A no. 44). As an individual intent on achieving greater acceptance of public nudity, the applicant is entitled to seek to initiate such a debate and there is a public interest in allowing him to do so. However, the issue of public nudity also raises moral and public-order considerations. The comparative data supplied by the Government show that even in the small number of States surveyed, the responses of the law and of the authorities to public nudity are far from uniform. In these circumstances, the applicable margin of appreciation in reacting to instances of public nudity, as opposed to regulating mere statements or arguments on the subject, is a wide one. 173. Turning to examine the approach to manifestations of public nudity in Scotland, the police and the Crown Office had discretion in deciding how to respond to such incidents, as demonstrated by the applicant’s own case. The measures taken against him were not the result of any blanket prohibition: each incident was considered on its facts and in light of the applicant’s own history of offending. Following his early arrests, he was generally released with no further action being pursued (see paragraphs 8 to 31 above). On the occasions when he was prosecuted, the courts demonstrated a similarly individualised approach. The applicant was only convicted after it had established at trial, on the basis of evidence as to his conduct in a particularly public place, that the offence of breach of the peace had been made out, namely that he had caused alarm to other people and serious disturbance to the community (see paragraph 101 above) On one occasion the Sheriff found on the prosecution evidence that there was no case to answer and three times the applicant was found not guilty, either following acceptance of a not guilty plea or after a trial of the facts (see paragraphs 19, 24, 36 and 48 above). Following the applicant’s 2011 trial, at which he also appeared naked (see paragraph 76 above), the Sheriff was satisfied that the applicant’s appearance naked on a public road outside HMP Perth was sufficiently severe to cause alarm to ordinary people and serious disturbance to the community (see paragraph 80 above). Although the applicant could have avoided arrest outside HMP Perth by complying with the police officers’ request that he put on clothes, he refused to do so (see paragraph 75 above). The Sheriff commented that had the applicant appeared naked in a more remote place or in a place where fewer people would be congregated, rather than “in or near one of the main streets of a busy town”, he might have reached a different conclusion (see paragraph 80 above). 174. As to the severity of the sanctions, it is noteworthy that after his early convictions the applicant was either admonished (see paragraph 10 above) or received short sentences of imprisonment of between two weeks and three months (see, for example, paragraphs 11, 16 and 31 above). It was only after a number of convictions for public nudity that the courts began to impose more substantial custodial sentences on the applicant. Even then, efforts were made to reach a less severe penalty. When sentencing the applicant for breach of the peace in 2009, the Sheriff explored the possibility of a non-custodial sentence if the applicant would agree to wear clothes, and only imposed a one-year sentence when the applicant refused to accept a condition of remaining clothed (see paragraph 60-61 above). By the time of his 2011 conviction and sentence of 330 days, together with a requirement to serve in addition 237 days outstanding for a previous sentence (see paragraph 81 above), he had been arrested over thirty times for public nudity and convicted almost twenty times. In assessing the proportionality of the penalty imposed, the Court is therefore not concerned with the respondent State’s response to an individual incident of public nudity but with its response to the applicant’s persistent public nudity and his wilful and contumacious refusal to obey the law over a number of years (see for example the Sheriff’s comments as to sentence in respect of the June 2009 conviction at paragraphs 60-61 above). 175. It is true that by the time that the 2011 sentence was imposed, the applicant had already served a cumulative total of five years and three months in detention since 18 May 2006, on remand pending fifteen criminal prosecutions and post-conviction pursuant to twelve sentences of imprisonment, with only four days’ spent at liberty during that period. At the point at which he subsequently left Scotland on 9 October 2012, he had spent almost six and a half consecutive years in prison with less than a dozen days at liberty throughout the entire period. The cumulative period of imprisonment in Scotland since 2003 for the repeated instances of his refusal to dress in public stands at over seven years. While the penalty imposed for each individual offence, taken on its own, is not such as to raise an issue under Article 10 in terms of lack of proportionality, the cumulative impact on the applicant of the measures taken by the respondent State, which was undeniably severe, is otherwise. However, the applicant’s own responsibility for the convictions and the sentences imposed cannot be ignored. In exercising his right to freedom of expression, he was in principle under a general duty to respect the country’s laws and to pursue his desire to bring about legislative or societal change in accordance with them (see, mutatis mutandis, Tănase, cited above, § 167). Many other avenues for the expression of his opinion on nudity or for initiating a public debate on the subject were open to the applicant. He was also under a duty, particularly in light of the fact that he was asking for tolerance in respect of his own conduct, to demonstrate tolerance of and sensibility to the views of other members of the public. However, the applicant appears to reject any suggestion that acceptance of public nudity may vary depending on the nature of the location and the presence of other members of the public. Without any demonstration of sensibility to the views of others and the behaviour that they might consider offensive, he insists upon his right to appear naked at all times and in all places, including in the courts, in the communal areas of prisons and on aeroplanes (see, for example, paragraphs 22, 29, 33, 53, 76 and 93 above). 176. The applicant’s case is troubling, since his intransigence has led to his spending a substantial period of time in prison for what is – in itself – usually a relatively trivial offence (see paragraph 100 above). However, the applicant’s imprisonment is the consequence of his repeated violation of the criminal law in full knowledge of the consequences, through conduct which he knew full well not only goes against the standards of accepted public behaviour in any modern democratic society but also is liable to be alarming and morally and otherwise offensive to other, unwarned members of the public going about their ordinary business. Having regard to the considerations set out above and to the wide margin of appreciation, the Court finds that the reasons for the measures adopted by the police, the prosecuting authorities and the courts, and in particular those adopted in respect of his arrest in 2011, were “relevant and sufficient” and that the measures met a pressing social need in response to repeated anti-social conduct by the applicant. It cannot be said that the repressive measures taken in reaction to the particular, repeated form of expression chosen by the applicant to communicate his opinion on nudity were, even if considered cumulatively, disproportionate to the legitimate aim being pursued, namely the prevention of disorder and crime. In particular, Article 10 does not go so far as to enable individuals, even those sincerely convinced of the virtue of their own beliefs, to repeatedly impose their antisocial conduct on other, unwilling members of society and then to claim a disproportionate interference with the exercise of their freedom of expression when the State, in the performance of its duty to protect the public from public nuisances, enforces the law in respect of such deliberately repetitive antisocial conduct. Even though, cumulatively, the penalties imposed on the applicant undoubtedly did entail serious consequences for him, the Court cannot find in the circumstances of his case, having regard in particular to his own responsibility for his plight, that the public authorities in Scotland unjustifiably interfered with his exercise of freedom of expression. Accordingly, no violation of Article 10 of the Convention has been established. D. The alleged violation of Article 8 of the Convention 177. Article 8 of the Convention provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 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.” 1. The parties’ submissions 178. The applicant contended that restrictions pertaining to a person’s mode of personal presentation were a function of personal identity and an exercise of personal autonomy. As such, any restrictions or the imposition of sanctions to compel a particular mode of personal presentation constituted an interference with the right to respect for private life. 179. He argued that his criminal prosecution for public nudity was not “in accordance with the law” and that his arrest, prosecution, conviction and imprisonment were not in pursuit of any of the stated aims listed in Article 8 § 2. He did not elaborate on these submissions. Relying on his submissions in respect of Article 10, he invited the Court to find a violation of Article 8 of the Convention. 180. The Government argued that the rights guaranteed by Article 8 did not extend to matters concerning personal appearance; nor did they extend to acts done publicly or in a sense done for a public purpose. They emphasised that Article 8 did not cover every opportunity to establish and develop relationships (citing Friend and Others v. the United Kingdom (dec.), no. 16072/06, 24 November 2009). They further contended that Article 8 did not have the effect of protecting conduct which would otherwise be considered criminal. Accordingly, they concluded that the criminal law of breach of the peace did not impinge on the sphere private to the applicant. 181. In the event that Article 8 was found to be applicable, the Government contended that the interference was in accordance with the law and pursued the aims of prevention of breach of the peace or of crime and disorder and the protection of the applicant. They maintained that the measures taken against the applicant were both necessary and proportionate and referred again to the wide margin of appreciation applicable in the field of morals. 2. The Court’s assessment 182. The concept of “private life” is broad in scope and not susceptible of exhaustive definition. In general terms, it secures to the individual a sphere within which he can freely pursue the development and fulfilment of his personality (see Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, § 43, ECHR 2004‑VIII; and Shtukaturov v. Russia, no. 44009/05, § 83, ECHR 2008). In S.A.S. v. France [GC], no. 43835/11, § 107, 1 July 2014, the Grand Chamber stated that personal choices as to an individual’s desired appearance, whether in public or in private places, relate to the expression of his personality and thus fall within the notion of private life. The notion of private life also protects a right to identity and to establish and develop relationships with other human beings and the outside world. There is, therefore, a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life” (see P.G. and J.H. v. the United Kingdom, no. 44787/98, § 56, ECHR 2001-IX; Peck v. the United Kingdom, no. 44647/98, § 57, ECHR 2003‑I; Perry v. the United Kingdom, no. 63737/00, § 36, ECHR 2003‑IX (extracts); and Gillan and Quinton v. the United Kingdom, no. 4158/05, § 61, ECHR 2010 (extracts)). 183. On the other hand, not every activity that a person might seek to engage in with other human beings in order to establish and develop relationships will be protected by Article 8: it will not, for example, protect interpersonal relations of such broad and indeterminate scope that there can be no conceivable direct link between the action or inaction of a State and a person’s private life (see Friend and Others, cited above, § 41). However, the fact that behaviour is prohibited by the criminal law is not sufficient to bring it outside the scope of “private life” (see A.D.T. v. the United Kingdom, no. 35765/97, § 23, ECHR 2000‑IX; and Pay v. the United Kingdom (dec.). no. 32792/05, 16 September 2003). Finally, the notion of personal autonomy is an important principle underlying the interpretation of the guarantee afforded by Article 8, (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002‑III; and Gillan and Quinton, cited above, § 61). 184. The applicant, by deliberately and consistently appearing naked in very public places such as urban centres, courtrooms and the communal parts of prisons, was intent on making a public statement of his belief in the inoffensive nature of the human body. The Court has found that his conduct amounted to a form of expression protected by Article 10 (see paragraph 150). It has previously indicated that a distinction must be drawn between carrying out an activity for personal fulfilment and carrying out the same activity for a public purpose, where one cannot be said to be acting for personal fulfilment alone (see Friend and Others, cited above, § 42). Furthermore, as concerns in particular an individual’s personal choices as to his desired appearance in public (as referred to in S.A.S., cited above), on analogy with the applicability of Article 9 of the Convention to religious beliefs (text of Article 9 cited below at paragraph 185), Article 8 cannot be taken to protect every conceivable personal choice in that domain: there must presumably be a de minimis level of seriousness as to the choice of desired appearance in question (see, mutatis mutandis, in relation to Article 9, Bayatyan, cited above, § 110; and Eweida and Others v. the United Kingdom, no. 48420/10, § 81, ECHR 2013 (extracts)). Whether the requisite level of seriousness has been reached in relation to the applicant’s choice to appear fully naked on all occasions in all public places without distinction may be doubted, having regard to the absence of support for such a choice in any known democratic society in the world. In any event, however, even if Article 8 were to be taken to be applicable to the circumstances of the present case, the Court is satisfied that those circumstances are not such as to disclose a violation of that provision on the part of the public authorities in Scotland. In sum, any interference with the applicant’s right to respect for his private life was justified under Article 8 § 2 for essentially the same reasons given by the Court in the context of its analysis of the applicant’s complaint under Article 10 of the Convention (see paragraphs 171-176 above). E. The alleged violation of Article 9 of the Convention 185. Article 9 of the Convention provides: “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.” 186. The applicant made no submissions on the applicability of Article 9 of the Convention. 187. The Government noted that the applicant had not elaborated on his claim under Article 9 of the Convention and contended in particular that he had not presented his views as a “belief” which attracted Article 9 protection. They challenged whether his views satisfied the requirements of cogency and seriousness. Even if there was a belief, there was no manifestation attracting the protection of Article 9. 188. The applicant failed to make submissions as to the applicability of Article 9 to the case. On the basis of the material before it, the Court finds that he has not shown that his belief met the necessary requirements of cogency, seriousness, cohesion and importance to fall within the scope of Article 9 of the Convention (see Bayatyan, cited above, § 110; and Eweida and Others, cited above, § 81). This complaint must accordingly be declared inadmissible as incompatible ratione materiae with the provisions of the Convention pursuant to Article 35 §§ 3 (a) and 4. F. Other complaints 189. The applicant also complained under Article 6 § 3 (c) that he was not permitted to attend an adjustments hearing in respect of his stated case in October 2009. He further invoked Articles 13 and 14 and Articles 2 and 4 of Protocol No. 7. On 20 May 2013 he invoked for the first time Article 3, arguing that the sentences imposed on him were individually and cumulatively grossly disproportionate. 190. Having regard to all the material in its possession and in so far as these complaints fall within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. II. TREATMENT IN DETENTION 191. The applicant complained of a violation of Articles 3, 8, 9, 10, 13 and 14 as a result of his treatment while in detention, referring to: (i) the failure to provide dental and optical treatment; (ii) the failure to provide medical treatment regarding a lump on his testicle; (iii) his segregation from other prisoners and the failure to allow him to exercise; and (iv) the denial of visits from family and friends. A. Compliance with Article 35 § 1 of the Convention 1. The parties’ submissions (a) The Government 192. The Government contested the admissibility of the applicant’s complaint concerning his treatment in detention. They contended that he had on 12 April 2012 impermissibly extended his original complaint to include matters relating to his detention. They further argued that there was no evidence of any continuing conduct such as to elide the application of the six-month time-limit. They argued that there was no policy on the part of the prison authorities as regards the conditions of the applicant’s detention, whether in relation to segregation, exercise or access to medical treatment. This was borne out by the applicant’s different experiences in different prisons and even in the same prison over time. 193. The Government also submitted that the applicant had failed to exhaust domestic remedies. The Prison Rules embodied and promoted respect for some of the very Convention rights which the applicant claimed had been breached. There was a clear and accessible internal procedure for making complaints. If he remained dissatisfied, he could have sought judicial review. However, at no point did the applicant make a claim for damages in respect of the alleged Convention violations, either by way of judicial review proceedings or through an ordinary action in the Sheriff Court. There had been successful judicial review actions brought by prisoners about the features of the very regime of segregation to which the applicant was subjected and about conditions of detention. Judicial review was a flexible and quick procedure in which the applicant could have advanced all claims for a breach of his Convention rights and sought damages. 194. They considered the applicant’s reasons for not pursuing a judicial review claim (see paragraphs 195-196 below) not to be credible and argued that he had not done all that could reasonably be expected of him to exhaust domestic remedies. The applicant had not been held in total isolation and had enjoyed access to the telephone and to postal services. It was not sufficient that he had made several telephone calls. He had not indicated that he had sought other sources of assistance, including contacting the Citizen’s Advice Bureaux or the Faculty of Advocates Free Representation Unit. Nor had he suggested that he had made an application for advice and assistance, the form of legal assistance available to assist in identifying whether there were grounds for legal action, or for legal aid. In any event, they considered that lack of financial means did not absolve an applicant from making some attempt to take legal proceedings. (b) The applicant 195. The applicant explained that he had pursued his complaints within the SPS internal complaints procedure on numerous occasions. He had also applied to the Ombudsman more than once. His complaints were rejected. He had sought legal representation to challenge his detention in judicial review proceedings but was unable to do so. He had contacted solicitors on a list provided to him by the prison authorities but was unsuccessful. Pursuant to rules on legal advice and assistance, to which the Government referred, the maximum fee for solicitors was GBP 35. This was often insufficient to cover the basis expenses of a prison visit, let alone remuneration for the legal advice provided. 196. As for the possibility of commencing judicial review proceedings, in person, the applicant emphasised that this would have required knowledge of a specialised area of Scots administrative law and procedure as well as an ability to sift and analyse documents and evidence. The applicant, as a serving prisoner, had limited or no access to the kind of legal, administrative or technical resources necessary for this task. Nor did he have the legal expertise or knowledge required. He could not, he argued, be expected to know all the finer points of judicial proceedings and the absence of legal assistance meant that he was not in a position to pursue a remedy which might have been theoretically open to him. 2. The Court’s assessment (a) Six-month rule 197. By letter dated 8 February 2012 the applicant first complained to this Court about his treatment while in prison. Relevant prior complaints had been rejected by the domestic authorities less than six months before the date on which he first complained about his conditions of detention. The applicant has therefore lodged his complaint within the six months provided for in Article 35 § 1 of the Convention. (b) Non-exhaustion 198. The applicant did not dispute that judicial review proceedings were in principle effective and would have offered reasonable prospects of success in respect of his complaints concerning his treatment in detention. The Government have therefore satisfied the burden of proof of showing the availability of a remedy which was an effective one available in theory and in practice at the relevant time (see paragraph 139 above). 199. The applicant must accordingly establish that judicial review proceedings were inadequate and ineffective in the particular circumstances of his case or that there existed special circumstances absolving him or her from the requirement to exhaust (see paragraph 139 above). The Government did not contest the applicant’s submission that he sought assistance from the Law Society of Scotland and subsequently contacted a number of solicitors, all of whom declined to act for him. It is therefore clear that the applicant took some steps to pursue domestic remedies which were available. However, it is noteworthy that on 28 September 2011, only two months after the applicant had lodged his case with this Court while in prison by the submission of a letter of introduction which he had himself prepared, Bindmans solicitors contacted the Court to confirm that they had been recently instructed by the applicant to represent him. The applicant has not explained how he was successful in obtaining representation for his case before this Court, having been unsuccessful in obtaining Scottish legal assistance for judicial review proceedings in the Court of Session. Nor has he explained why Bindmans were unable to arrange for the commencement of judicial review proceedings on his behalf at that time. Indeed, by 8 February 2012, when he first informed the Court of his complaints about his treatment in detention, he had already enjoyed legal representation from Bindmans for over four months. 200. In the circumstances the Court concludes that the applicant has not discharged the burden upon him to demonstrate that the remedy offered by judicial review was ineffective or that there were special circumstances which exempted him from pursuing it. He has accordingly failed to exhaust domestic remedies in respect of his complaint about his treatment in detention. It must therefore be rejected pursuant to Article 35 §§ 1 and 4. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaints under Articles 8 and 10 concerning the applicant’s arrest, prosecution, conviction and imprisonment admissible and the remainder of the application inadmissible; 2. Holds that there has been no violation of Article 10 of the Convention; 3. Holds that there has been no violation of Article 8 of the Convention. Done in English, and notified in writing on 28 October 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıIneta ZiemeleDeputy RegistrarPresident

FIFTH SECTION CASE OF SAVIN v. UKRAINE (Application no. 34725/08) JUDGMENT STRASBOURG 16 February 2012 FINAL 16/05/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Savin v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Dean Spielmann, President,Elisabet Fura,Boštjan M. Zupančič,Ann Power-Forde,Ganna Yudkivska,Angelika Nußberger,André Potocki, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 24 January 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 34725/08) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Vyacheslav Yuryevich Savin (“the applicant”), on 15 June 2008. 2. The applicant, who had been granted legal aid, was represented by Mr A. Kristenko, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, succeeded by Ms V. Lutkovska. 3. The applicant alleged that he had been ill-treated while in unlawful detention and that the authorities had failed to carry out an effective investigation into the matter within a reasonable time, thus allowing the perpetrators to escape all responsibility. 4. On 10 March 2010 the President of the Fifth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). 5. The Russian Government, having been informed of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), indicated that they did not wish to exercise that right. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1972 and lives in Kharkiv, Ukraine. A. Events of 18 and 19 October 1999 7. As submitted by the applicant and established by the domestic courts (see paragraphs 22 and 28 below), in the afternoon of 18 October 1999 the applicant attended at the Dzerzhynskyy District Police Station, at the investigator’s summons, as a witness in a fraud-related criminal investigation. At about 7 p.m., officer K. questioned him. Not being satisfied by the applicant’s explanations and seeking to obtain his confession to the fraud, K. tied the applicant’s hands behind his back with a belt, made him sit on a chair and punched him at least eight or ten times in the head. Thereafter K. took the applicant into the corridor, threw him face down against the floor and raised his tied arms behind his back seven or eight times. K. also kicked the applicant several times in the ribs. 8. According to K.’s report to the police unit on duty, later found to be knowingly false (see paragraph 22 below), he had apprehended the applicant in the street for swearing in public. As a result, an administrative offence report was drawn up and the applicant was arrested. According to the police records, he was released at 8.40 p.m. on 18 October 1999. As it was later established, the applicant was in fact held in the room for detainees until 9 a.m. on 19 October 1999. 9. In addition to the aforementioned account established by the court, the applicant alleged that two other police officers, under the leadership of K., had also beaten him. B. The applicant’s health 10. According to the medical documentation, the applicant had been in good health before the aforementioned events of October 1999. 11. On 21 October 1999 he was examined by a doctor who documented the following injuries: multiple bruises on the face, scalp, left ear, neck and chest, as well as a closed head injury with concussion of the left frontal lobe and an intracerebral haematoma. The doctor concluded that these injuries had been caused by blunt objects and could have dated from 18 or 19 October 1999. 12. On the same date, 21 October 1999, the applicant was admitted to a neurological hospital, where he underwent treatment until 23 November 1999. 13. The head injury sustained by the applicant in October 1999 had negative consequences for his health. As a result, he was hospitalised many times during the years to follow. In particular, he underwent in-patient treatment on that account during the following periods: from 17 January to 7 February 2000, from 9 to 30 January 2001, from 18 April to 6 May 2002, from 12 to 22 November 2002, from 11 to 25 April 2003, and during subsequent unspecified periods. 14. In 2002 the applicant was recognised as falling into the third category of disability (the mildest) on account of the residual effects of the head injury and post-traumatic encephalopathy. 15. From 2004 onwards his condition was classified as a disability of the second category (more serious), as the post-traumatic encephalopathy had worsened. 16. From October 1999 eight forensic medical expert examinations were carried out with a view to verifying the applicant’s ill-treatment allegation (see paragraph 17 below). According to the examination reports the applicant had sustained a craniocerebral injury with subarachnoid haemorrhage, brain concussion, and numerous haematomas on various parts of the head, neck, back and chest. All the examinations found the applicant’s account as to the time and origin of his injuries to be plausible. While originally the injuries were classified as grievous, the experts later reclassified them as being of medium severity. Their consequences were described as follows: lasting health deterioration, namely, a cerebral cicatrix, liquor hypertension syndrome, right-side sensory and motor impairment, and a convulsive disorder, which all together had led to the loss by the applicant of thirty per cent of his general working capacity and fifty per cent of his professional working capacity. The last forensic medical examination, which was conducted between 5 May and 14 June 2007, established that the applicant’s disability was a direct result of the injuries sustained by him in October 1999. C. Investigation of the applicant’s allegations of unlawful detention and ill-treatment 17. From 19 October 1999 the applicant lodged numerous complaints with prosecution authorities concerning unlawful detention and torture by the police. 18. During the period from 1999 to 2008 the prosecutors refused on six occasions to institute criminal proceedings against the police officers, having discerned no indication of a crime in their actions. All these decisions were subsequently quashed by higher-level prosecution authorities as premature, unlawful and based on a perfunctory investigation not aimed at establishing the truth. 19. Meanwhile, on 20 December 1999, the Dzerzhynskyy District Prosecutor’s Office opened a criminal investigation in respect of infliction of grievous bodily injuries on the applicant by unknown persons. Subsequently, on 2 December 2002, the charge was re-classified as “infliction of injuries of medium severity”. The investigation was stayed several times for failure to identify the offenders. 20. On 27 March 2006 the Ordzhonikidze District Prosecutor’s Office (hereafter – “the Ordzhonikidze Prosecutor”) applied to the Dzerzhynskyy District Court (“the Dzerzhynskyy Court”) for discontinuation of the proceedings regarding the infliction of bodily injuries of medium severity on the applicant by unknown persons as being time-barred. 21. On 6 July 2006 the Dzerzhynskyy Court rejected that application as unfounded and premature. It noted that the investigation had failed to comply on many occasions with the instructions of the Kharkiv Regional Prosecutor’s Office and the General Prosecutor’s Office. 22. On 30 July 2008 the Ordzhonikidzhe Prosecutor instituted criminal proceedings against K. under Article 365 § 2 of the Criminal Code on suspicion of abuse of power, associated with violence and degrading treatment. That investigation established the facts as they are summarised in paragraphs 7 and 8 above. 23. On 23 January 2009 K. was formally charged, and the applicant was assigned victim status. 24. On 27 January 2009 the applicant brought a civil claim within the criminal proceedings seeking compensation for pecuniary and non‑pecuniary damage. 25. On 29 January 2009 the Ordzhonikidzhe Prosecutor refused to open a criminal case against the other two police officers in respect of the applicant’s ill-treatment, having discerned nothing criminal in their actions. 26. On 19 February 2009 the case was referred to the Ordzhonikidzhe District Court (“the Ordzhonikidzhe Court”) for trial. 27. The court adjourned its hearings several times because K. was receiving medical treatment for excessive hypertension, proctologic problems, and an accidental fall. 28. On 2 March 2010 the Ordzhonikidzhe Court upheld the investigation’s findings and found K. guilty as charged. It held that K. had breached the applicant’s rights under Articles 28 and 29 of the Constitution, as well as Article 365 § 2 of the Criminal Code. The court, however, released K. from criminal liability as the statutory limitation period of ten years had expired. 29. On 9 March 2010 the Ordzhonikidzhe Court modified the above‑mentioned ruling in order to specify that K. was released from both criminal liability and punishment. It also decided to leave the applicant’s civil claim without examination. 30. Both K. and the public prosecutor appealed. K. submitted that the criminal proceedings against him should be terminated for lack of evidence of his guilt. The public prosecutor emphasised that K. had committed a serious premeditated crime in the course of his professional activities, thus undermining the authority of the law-enforcement bodies and the State. He noted that K. had never admitted his guilt, had not drawn any conclusions, had not compensated the applicant for any pecuniary or non-pecuniary damage, and showed no remorse about what he had done. The public prosecutor therefore considered that a guilty verdict would be the right outcome to this case. 31. On 1 July 2010 the Kharkiv Regional Court of Appeal rejected both appeals. D. K.’s career within the law-enforcement authorities 32. At the time of the events of October 1999 K. held the post of detective officer («оперуповноважений») in the Dzerzhynskyy District Police Department. 33. On 15 June 2000 he was promoted to the post of senior detective officer («старший оперуповноважений»). 34. At a later unspecified date K. was promoted to the post of Deputy Chief of the Zolochevskyy District Police Department. 35. On 23 January 2009, after the formal charges were brought against K., the Ordzhonikidze Prosecutor suspended him from his duties. 36. On 2 March 2010 the Ordzhonikidzhe Court issued, in addition to the aforementioned judgment (see paragraph 28 above), a special ruling by which it informed the Kharkiv Regional Police Department of the termination of the proceedings against K. as being time-barred and indicated that he should be restored to his post within the law-enforcement authorities. 37. K. apparently continues to work in the police force. II. RELEVANT DOMESTIC LAW AND PRACTICE 38. Articles 28 and 29 of the Constitution of Ukraine are cited in Nechiporuk and Yonkalo v. Ukraine, no. 42310/04, § 121, 21 April 2011. 39. Article 166 of the Criminal Code (1960) provided for three to eight years’ imprisonment with a prohibition on holding certain office or carrying out certain activities for a period of up to five years as punishment for abuse of power, associated with violence or degrading treatment of the victim. 40. Following the entry into force of the new Criminal Code in 2001, its Article 365 § 2 provided for the same punishment for this offence, except that the bar from office was limited to three years. 41. Articles 1 and 2 of the Law of Ukraine “On the Procedure for the Compensation of Damage caused to Citizens by the Unlawful Actions of Bodies in charge of Operational Enquiries, Pre-trial Investigation Authorities, Prosecutors or Courts” (“the Compensation Act”)” (as worded before the amendments of 1 December 2005) can be found in the following judgments respectively: Kobtsev v. Ukraine, no. 7324/02, § 35, 4 April 2006, and Afanasyev v. Ukraine, no. 38722/02, § 52, 5 April 2005). 42. Following the amendments to the Compensation Act of 1 December 2005, the list of cases where the right to compensation would arise was expanded by inclusion of the following point: “(1-1) where ... unlawfulness of remand and holding in custody ... has been established by a conviction or other judgment of a court (save for rulings on remittal of cases for additional investigation)”. III. RELEVANT INTERNATIONAL MATERIALS 43. The relevant extracts from the Report to the Ukrainian Government on the visit to Ukraine carried out by the CPT from 9 to 21 September 2009 [CPT/Inf (2011) 29] read as follows: “14. ... the frequency and consistency of the allegations received by the CPT’s delegation during the 2009 visit suggest that methods of severe ill-treatment/torture continue to be used with impunity by Internal Affairs officers. It is clear that continued determined action, bringing together in a joint effort all relevant State agencies, is needed to combat this phenomenon. ... 16. ... The CPT recommends that a firm message of “zero tolerance” of ill-treatment continue to be delivered at regular intervals to all Internal Affairs staff. It should be made clear that the perpetrators of ill-treatment and those condoning or encouraging such acts will be subject to severe sanctions.” 44. Guidelines of the Committee of Ministers of the Council of Europe on eradicating impunity for serious human rights violations, which were adopted on 30 March 2011, provide for the following among the general measures for the prevention of impunity: “... 7. States should ... establish mechanisms to ensure the integrity and accountability of their agents. States should remove from office individuals who have been found, by a competent authority, to be responsible for serious human rights violations or for furthering or tolerating impunity, or adopt other appropriate disciplinary measures. ...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 45. The applicant complained that he had been ill-treated in police custody, which he considered to amount to torture, and about the subsequent investigation. He relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 46. Referring to the ongoing domestic proceedings regarding the applicant’s complaint of ill-treatment, the Government submitted that he had not exhausted the remedies available to him under domestic law, as required by Article 35 § 1 of the Convention. They noted that courts at two levels of jurisdiction had established the fact of the applicant’s ill-treatment, although they had discontinued the proceedings against the police officer concerned as being time-barred. The Government underlined that that decision could still be appealed against on points of law. 47. The Government considered the circumstances of the present case to be similar to those in the case of Misiak v. Poland (no. 43837/06, 3 June 2008), in which the Court had dismissed the applicant’s complaint of ill-treatment as premature because the domestic investigation into the matter was still pending (§ 32). 48. Lastly, the Government noted that the applicant had not availed himself of the domestic civil procedure for seeking compensation for damages in respect of his ill-treatment. 49. The applicant disagreed. He contended that the domestic investigation in his case had lasted for over ten years and had been ineffective, thus allowing the police officer in question to escape criminal liability. The applicant noted that no further appeals would be able to remedy that. 50. As to the civil proceedings, the applicant maintained that, in the absence of the criminal prosecution of his offender, compensation alone could not offer sufficient redress for his sufferings. 51. The Court observes, from the outset, that the only remedies Article 35 of the Convention requires to be exhausted are those that are available and sufficient and relate to the breaches alleged (see Derman v. Turkey, no. 21789/02, § 22, 31 May 2011). 52. The Court further reiterates that the obligations of the State under Article 3 cannot be satisfied merely by an award of damages (see Okkalı v. Turkey, no. 52067/99, § 58, ECHR 2006‑XII (extracts)). This is so because if the authorities could confine their reaction to incidents of wilful ill-treatment by State agents to the mere payment of compensation, while not doing enough to prosecute and punish those responsible (see Vladimir Romanov v. Russia, no. 41461/02, §§ 78 and 79, 24 July 2008). 53. It follows from the above that an effective investigation is required, in addition to adequate compensation, to provide sufficient redress to an applicant complaining of ill-treatment by State agents (Kopylov v. Russia, no. 3933/04, § 130, 29 July 2010). 54. At the same time, the Court notes that an applicant cannot be reproached for not pursuing a domestic investigation, which is found to be ineffective (see Lotarev v. Ukraine, no. 29447/04, § 93, 8 April 2010). 55. The Court observes that, unlike in the present case, the applicant in the case of Misiak v. Poland, cited by the Government, did not allege that the domestic investigation into his allegation of ill-treatment had proved ineffective. Accordingly, the Court held that he should have waited its completion before bringing that complaint to this Court. 56. In the present case, however, it is impossible to establish whether or not the applicant was under such an obligation before an examination of the merits of his complaint about the alleged ineffectiveness of the domestic investigation in question. 57. The Court therefore joins this objection of the Government to the merits of the applicant’s complaint under the procedural limb of Article 3 of the Convention (see Lotarev v. Ukraine, cited above, § 74, and Oleksiy Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, § 50, 24 June 2010). 58. The Court further notes that this complaint is not otherwise manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The applicant’s ill-treatment 59. It is not in dispute between the parties that the applicant was ill‑treated by police officer K. in October 1999. 60. The Court notes that where allegations are made under Article 3 of the Convention it must apply a particularly thorough scrutiny. Where domestic proceedings have taken place, however, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them. Although the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (see Gäfgen v. Germany [GC], no. 22978/05, § 93, 1 June 2010, with further references). 61. In assessing the treatment to which the applicant was subjected during his two-day police custody in October 1999, the Court therefore refers, first of all, to the findings of the domestic investigation culminating in the judicial decisions of 2 March and 1 July 2010 (see paragraphs 7, 8, 22 and 28 above). It was established that police officer K. had tied the applicant’s hands behind his back and had subjected him to extensive beating to the head and other parts of his body. The domestic authorities also established that the aim of the aforementioned ill-treatment had been to coerce the applicant into confessing to a criminal offence. Lastly, the Court attaches weight to the forensic medical experts’ findings according to which the applicant’s disability was a direct result of the ill-treatment in question (see paragraph 16 above). 62. These findings alone – that is, regardless of the applicant’s additional allegation about the involvement of two other police officers in his beating (see paragraph 9 above) – are sufficient for the Court to conclude that the applicant was subjected to torture in the present case. The key considerations leading the Court to this conclusion are, firstly, the severity of the ill-treatment, which impaired the applicant’s health to such an extent that he became disabled, and, secondly, the intentional nature of that ill-treatment in that it was aimed at extracting from the applicant a confession to a crime (see Selmouni v. France [GC], no. 25803/94, §§ 97 and 101, ECHR 1999-V, and Nechiporuk and Yonkalo v. Ukraine, cited above, § 149). 63. The Court therefore finds that the applicant has been subjected to torture in violation of Article 3 of the Convention. 2. Effectiveness of the investigation 64. As to the domestic investigation into the matter, the applicant maintained that it had been slow and ineffective. Moreover, he considered that it had been intentionally protracted beyond the statutory limitation period with a view to relieving those responsible from criminal liability. He further observed that, at certain stages, the investigation had been carried out by the police and could not therefore be regarded as independent. Overall, the applicant considered that the investigation in his case, being marred by numerous remittals, unnecessary forensic medical examinations and unjustified delays, and having, in the end, failed to lead to the punishment of those responsible, fostered a “sense of impunity” in police officers and in fact demonstrated the State’s tolerance to ill-treatment. 65. The Government contended that the investigation had been thorough and effective. They cited, in particular, the numerous forensic medical examinations which had been carried out. The Government also noted that the investigation had eventually reached a conclusion favourable to the applicant, having found his allegation of ill-treatment substantiated and having brought police officer K. to trial. 66. The Court notes that where an individual raises an arguable claim that he or she has been seriously ill-treated by the police in breach of Article 3, that provision requires by implication that there should be an effective official investigation capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998‑VIII, and Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000‑IV). The minimum standards of effectiveness defined by the Court’s case-law include the requirements that the investigation must be independent, impartial and subject to public scrutiny, and that the competent authorities must act with exemplary diligence and promptness (see, for example, Menesheva v. Russia, no. 59261/00, § 67, ECHR 2006‑III). 67. Furthermore, the Court has held in its case-law that when an agent of the State is accused of crimes involving torture or ill-treatment, the criminal proceedings and sentencing must not be time-barred and the granting of an amnesty or pardon should not be permitted (see Abdülsamet Yaman v. Turkey, no. 32446/96, § 55, 2 November 2004). 68. The Court also reiterates that where a State agent has been charged with crimes involving torture or ill-treatment, it is of the utmost importance that he or she be suspended from duty during the investigation and trial, and should be dismissed if convicted (see Nikolova and Velichkova v. Bulgaria, no. 7888/03, § 63, 20 December 2007, and Serdar Güzel v. Turkey, no. 39414/06, § 42, 15 March 2011, both with further references). 69. Compliance with the above requirements is inherent in a State’s commitment to prevent impunity for ill-treatment and to demonstrate in practice its zero tolerance towards this phenomenon (see also the relevant international materials quoted in paragraphs 43 and 44 above). 70. Turning to the present case, the Court observes that the investigation into the applicant’s allegation of torture lasted for more than ten years, during which investigators refused to institute criminal proceedings against the police officers six times, all these decisions later being quashed by higher-level prosecution authorities as premature, unlawful, and based on a perfunctory investigation (see paragraph 18 above). Having regard to the reasons for these remittals, and given the investigators’ disregard for the instructions of the higher-level prosecutors, which seemed to be a regular practice (see paragraph 21 above), the Court considers that such remittals disclose serious deficiencies in the investigation being a structural problem in Ukraine (see Aleksandr Smirnov v. Ukraine, no. 38683/06, § 61, 15 July 2010). 71. The Court further notes that the case against police officer K. was dropped on 2 March 2010 as the statutory time-limit had expired. As a result, he faced no criminal liability or sanctions. Moreover, during the ten years, while the investigation was going on, K. was suspended from his duties only once, from January 2009 to March 2010. Otherwise, the investigation did not in any way impede his career within the law‑enforcement bodies. To the contrary, K. was promoted at least twice during that time and apparently still continues to work in the police force (see paragraphs 33, 34, 36 and 37 above). This situation thus shows the lack of any meaningful efforts to prevent future similar violations and the virtually total impunity for torture or ill-treatment being afforded to the law-enforcement agencies (see and compare with Pădureţ v. Moldova, no. 33134/03, § 77, 5 January 2010). 72. The foregoing considerations, even without the analysis of the applicant’s additional arguments as to the purported lack of independence of the investigation authorities, provide a sufficient basis for the Court to conclude that the State fell short of its obligation to conduct an effective investigation into the applicant’s allegation of torture by the police. 73. The Court therefore dismisses the Government’s objection as to the exhaustion of domestic remedies, previously joined to the merits (see paragraph 57 above), and finds that there has been a violation of Article 3 of the Convention under its procedural limb too. II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 74. The applicant complained that he had been detained unlawfully between 18 and 19 October 1999 and that the domestic authorities had failed to effectively investigate his allegations in this connection, in breach of Article 5 § 1 of the Convention, which reads in so far as relevant: “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non- compliance 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 75. In so far as the domestic investigation into the applicant’s allegation of ill-treatment equally concerned his complaint about the alleged unlawfulness of his detention, the Government reiterated their objection as to the exhaustion of domestic remedies raised concerning the applicant’s complaint under Article 3 (see paragraphs 46-48 above). They noted, in particular, that, like the applicant’s ill-treatment, the unlawfulness of his detention on 18 and 19 October 1999 had been acknowledged by the domestic courts and it remained open to the applicant to seek damages on that account. 76. The applicant disagreed, referring mainly to the inordinate length of the investigation which eventually barred prosecution of those responsible for his unlawful detention. 77. The Court is mindful of the delayed acknowledgement by the domestic authorities of the unlawfulness of the applicant’s detention. As to his prospects of obtaining damages, the Court has already considered a similar issue in comparable circumstances in the case of Lopatin and Medvedskiy v. Ukraine, nos. 2278/03 and 6222/03, §§ 76 and 77, 20 May 2010) and found that the remedies in question, be it under the Civil Code or under the specialised Compensation Act, could not be deemed effective under the circumstances and did not have to be exhausted. 78. The Court has no reason to hold otherwise in the present case and dismisses the Government’s objection. 79. Having found no other ground for declaring this complaint inadmissible, the Court declares it admissible. B. Merits 80. The applicant maintained his complaint. 81. Referring to their objection as to the exhaustion of domestic remedies, the Government did not submit any further observations on the merits of this complaint. 82. The Court notes that, as established by the domestic investigation, the applicant’s detention on 18 and 19 October 1999 was based partly on a knowingly false administrative offence report, and was partly unrecorded (see paragraphs 8, 22 and 28 above). 83. The Court has held on many occasions that placing a person under administrative arrest to ensure his availability for questioning as a criminal suspect – which in fact happened in the present case – is arbitrary under Article 5 of the Convention (see Doronin v. Ukraine, no. 16505/02, § 56, 19 February 2009; Oleksiy Mykhaylovych Zakharkin v. Ukraine, cited above, § 88; and Nechiporuk and Yonkalo v. Ukraine, cited above, § 178). 84. The Court also emphasises that unrecorded detention of an individual is a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention and discloses a grave violation of that provision. The absence of a record of such matters as the date, time and location of detention, the name of the detainee, the reasons for the detention and the name of the person effecting it must be seen as incompatible with the requirement of lawfulness and with the very purpose of Article 5 of the Convention (see Kurt v. Turkey, 25 May 1998, § 125, Reports 1998‑III). 85. In the light of the foregoing, the Court concludes that there has been a violation of Article 5 § 1 of the Convention in the present case. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 86. 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 87. The applicant claimed 1,800 and 40,000 euros (EUR) in respect of pecuniary and non-pecuniary damage respectively. 88. In substantiation of the pecuniary damage claim, he submitted a certificate from the Institute of Neurology, Psychiatry and Narcology of 11 June 2010, with a detailed list of medications he had been prescribed for the treatment of his head injury sustained in October 1999. The applicant also submitted copies of the relevant receipts from pharmacies. 89. The Government contested the claim, noting that it remained open to the applicant to seek compensation before the domestic courts. 90. The Court has no doubt that the applicant suffered pain and distress on account of his unlawful detention and ill-treatment at the hands of the police, which was not acknowledged, let alone compensated, for over ten years. Given the seriousness of the violations found in the present case, and ruling on an equitable basis, the Court awards in full the applicant’s claim of EUR 40,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. 91. Furthermore, having regard to all the documents in its possession, the Court also considers it reasonable to award the applicant the claimed sum of EUR 1,800 in respect of pecuniary damage, plus any tax that may be chargeable to the applicant. B. Costs and expenses 1. Legal representation in the domestic proceedings 92. The applicant also claimed EUR 1,400 for the costs and expenses incurred before the domestic courts. He submitted copies of agreements signed by himself and a lawyer on the following dates in respect of his legal representation in the domestic proceedings regarding his ill-treatment by the police in October 1999: 25 April 2006 – for legal fees of 1,500 Ukrainian hryvnias (UAH), paid by the applicant on that date; 12 July 2007 – for UAH 4,600, paid on 15 August and 15 September 2007; 16 March 2009 – for UAH 3,000, paid on that date; 21 May 2010 – for UAH 2,000, paid on that date. 93. The Government contested this claim. They contended that the applicant could still obtain that compensation domestically. 94. Having regard to the documentary evidence submitted by the applicant, the Court considers that the costs and expenses indicated by him were both necessarily and actually incurred (see McCann and Others v. the United Kingdom, 27 September 1995, § 220, Series A no. 324). It therefore awards the claimed amount of EUR 1,400 in full. 2. Legal representation in the proceedings before the Court 95. The applicant further claimed EUR 8,550 for the costs and expenses incurred before the Court. In support of this claim he submitted a copy of the contract signed by himself and Mr A. Kristenko for his representation in the proceedings before the Court, dated 1 July 2008. It stipulated that the applicant was to pay Mr Kristenko, after the completion of the proceedings, EUR 60 per hour of work, with the total amount, however, not exceeding the Court’s award under this head. The applicant submitted four time-sheets and expense reports completed by Mr Kristenko in respect of the work done over the period 2008-2010. According to them, Mr Kristenko worked on the case for 129 hours, 100 of which he spent studying the Government’s observations. 96. The Government considered the claim to be exorbitant. 97. The Court notes that although the applicant has not yet paid the legal fees, he is bound to pay them pursuant to a contractual obligation. As can be seen from the case-file materials, Mr Kristenko represented the applicant throughout the proceedings before the Court and is therefore entitled to seek payment of his fees under the contract. Accordingly, the Court considers those fees to have been “actually incurred” (see Tebieti Mühafize Cemiyyeti and Israfilov v. Azerbaijan, no. 37083/03, § 106, 8 October 2009). However, the Court considers that the claim is excessive and awards it in part, in the amount of EUR 2,000, less EUR 850 as the sum received by way of legal aid, and plus any value-added tax that may be chargeable to the applicant. 3. Other expenses 98. Lastly, the applicant claimed EUR 690 for the cost of travelling from Kharkiv to Kyiv for meetings with the General Prosecutor’s Office. In substantiation he submitted copies of train tickets. 99. The Government contested this claim as being irrelevant to the case. 100. Regard being had to the information and documents in its possession, the Court rejects this claim. C. Default interest 101. 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 to the merits the Government’s objection as to the exhaustion of domestic remedies in respect of the applicant’s complaint under Article 3 of the Convention concerning his alleged torture by the police, and dismisses it after having examined the merits of that complaint; 2. Declares the application admissible; 3. Holds that the applicant has been subjected to torture in violation of Article 3 of the Convention; 4. Holds that there has been a violation of Article 3 of the Convention on account of the lack of an effective investigation into the applicant’s allegation of torture by the police; 5. Holds that there has been a violation of Article 5 § 1 of the Convention on account of the applicant’s detention on 18 and 19 October 1999; 6. Holds (a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Ukrainian hryvnias at the rate applicable on the date of settlement, plus any tax that may be chargeable to the applicant: (i) EUR 40,000 (forty thousand euros) in respect of non-pecuniary damage; (ii) EUR 1,800 (one thousand eight hundred euros) in respect of pecuniary damage; (iii) EUR 1,400 (one thousand four hundred euros) in respect of costs and expenses related to the applicant’s legal representation in the domestic proceedings; (iv) EUR 1,150 (one thousand one hundred and fifty euros) in respect of costs and expenses related to the applicant’s legal representation in the proceedings before the Court; (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; 7. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 16 February 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekDean Spielmann Registrar President

SECOND SECTION CASE OF SULTAN DÖLEK AND OTHERS v. TURKEY (Application no. 34902/10) JUDGMENT STRASBOURG 28 April 2015 FINAL 14/09/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Sultan Dölek and Others v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: András Sajó, President,Işıl Karakaş,Nebojša Vučinić,Helen Keller,Egidijus Kūris,Robert Spano,Jon Fridrik Kjølbro, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 31 March 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 34902/10) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by seven Turkish nationals (“the applicants”), whose particulars are set out in the appendix, on 3 June 2010. 2. The applicants, who had been granted legal aid, were represented by Mr Ali Tandoğan Kaçıra, a lawyer practising in Mersin. The Turkish Government (“the Government”) were represented by their Agent. 3. The applicants alleged, in particular, that the investigation conducted into the death of their close relative Mustafa Döleksoy had not been effective and was thus in breach of Article 2 of the Convention. 4. On 14 June 2012 the application was communicated to the Government. 5. On 25 July 2013 the Government presented a unilateral declaration to the Court. On 22 October 2013 the Court examined the Government’s unilateral declaration and decided not to accept it. THE FACTS THE CIRCUMSTANCES OF THE CASE 6. The first applicant is the mother and the remaining six applicants are the siblings of Mustafa Döleksoy who was born in 1952 and died in 2007. 7. The facts of the case, as submitted by the parties and as they appear from the documents submitted by them, may be summarised as follows. 8. At around 10 a.m. on 25 August 2007 Mustafa Döleksoy’s neighbours noticed a strong smell coming from his summer house near the town of Erdemli in southern Turkey. They informed the caretaker and the security guard of the summer house complex, who immediately went to Mustafa Döleksoy’s house. The door to the house was closed but the two men were able to see, by looking under the door, that Mustafa Döleksoy was lying on his back on the floor. They then called the gendarmerie. 9. A number of gendarmes, accompanied by a doctor from the local health clinic, arrived at the scene at around 10.30 a.m. As the door to the house was locked, a locksmith had to be found to open the door. 10. The doctor who accompanied the gendarmes prepared a report at 10.30 a.m. in which he concluded that Mustafa Döleksoy had died of a cerebral haemorrhage and circulatory failure which had been caused by head trauma as a result of falling from the worktop in the kitchen. The doctor estimated that the death had occurred four to five days previously. 11. In their statements to the gendarmerie, the applicants Mahmut and Ahmet Cengiz Dölek said that they did not know who might have been responsible for the death of their brother and that they did not suspect anyone in particular. The caretaker and the security guard of the summer house complex were also questioned by the gendarmes and they were reported as having stated that they had no idea how Mustafa Döleksoy might have met his death. 12. The Erdemli prosecutor went to the house at around 11.40 a.m. and drew up an examination report with the assistance of the same doctor. Mustafa Döleksoy’s body was formally identified by a colleague from the law firm where Mustafa Döleksoy had been working as a lawyer. The colleague also told the prosecutor that Mustafa Döleksoy had recently purchased the summer house and had been making preparations to move in. 13. In his report the prosecutor noted the presence of a large amount of dried blood on the floor which had come from Mustafa Döleksoy’s head. He observed that the corpse had swollen and the face had completely blackened. The doctor reported two fractures on both the left and right of the occipital region of the head and two cuts above the fractures. No indications of firearm injuries or stab wounds were noted on the body. A handful of hair found in the left hand of Mustafa Döleksoy and the samples taken from Mustafa Döleksoy’s own hair were placed in two separate envelopes and sealed. A decision was made to hand over to the family the clothes taken off the body, because the prosecutor considered that they had no evidential value as there were no holes in them caused by a firearm or a knife. The personal belongings, such as a wallet with money and credit cards in it and a mobile phone found in the trouser pockets, were taken away as evidence. 14. The doctor did not find it necessary to conduct a full post mortem examination because, in his opinion, the cause of death had already been established as cerebral haemorrhage and circulatory failure caused by head trauma. Nevertheless, having regard to the fact that “the death had occurred in an empty house and the deceased had a clump of hair in his hand”, the prosecutor decided to send the body to the Adana Branch of the Forensic Medicine Institute for a full post-mortem examination to be carried out so that any suspicions could be eliminated by determining the exact cause of death and the cause of the injuries observed on the head. 15. Crime scene officers from the gendarmerie who moved the body at 12.30 p.m. the same day after the prosecutor’s examination also noted the two cuts on the back of the head and recorded their finding in a report. According to the report, there were no signs of a struggle in the house which, in any event, had been unfurnished. The crime scene officers also drew up a sketch of the house which also indicated the position of the body. 16. The same day a post mortem examination was carried out at the Adana Branch of the Forensic Medicine Institute. The report pertaining to that examination was prepared on 12 November 2007. It was noted in the report that, contrary to what had been stated in the prosecutor’s report (see paragraph 13 above), the skull was intact and there were no fractures on it. The forensic experts considered that “the two lesions on the head”, which had been described as “cuts” in the prosecutor’s above-mentioned report, might have been caused by decomposition. 17. When preparing their report of 12 November 2007 the forensic experts also took into account two other forensic reports. The first report, dated, 24 September 2007, pertained to a toxicological examination and confirmed that there were no toxic substances in Mustafa Döleksoy’s body. 18. The second report taken into account by the forensic experts at the Adana Branch of the Forensic Medicine Institute was obtained from the Biology Specialisation Department of the Istanbul Branch of the Forensic Medicine Institute on 28 September 2007 and concerned the hair samples. According to that report, the hair samples found in Mustafa Döleksoy’s hand were “not responding to a DNA examination”. It was also stated in that report that, according to a DNA analysis, the stains found on the paper in which the hair found in Mustafa Döleksoy’s hand had been wrapped, and the hair samples taken from Mustafa Döleksoy’s head by the prosecutor (see paragraph 13 above) were a match. 19. In the light of the post mortem examination conducted by them on 25 August 2007, as well as having regard to the two expert reports summarised in the preceding paragraphs, the experts at the Adana Branch of the Forensic Medicine Institute concluded in their report of 12 November 2007 that Mustafa Döleksoy had not been poisoned and that there was no medical evidence to show any involvement of an external factor in his death. On account of the fact that the hair found in Mustafa Döleksoy’s hand had not responded to DNA analysis, they could not establish whether or not it was his own hair. The experts concluded that they were unable to establish the exact cause of death on account of the advanced state of decomposition of the body. 20. On 19 December 2007 the lawyer representing the first applicant and her husband informed the Erdemli prosecutor in a petition that in their opinion their son had died in suspicious circumstances. They asked the prosecutor to examine their son’s law firm and his mobile phone with a view to clarifying the circumstances surrounding his death. They also asked for a copy of the investigation file to be given to them. 21. On 25 December 2007 the Erdemli prosecutor contacted the Biology Specialisation Department of the Istanbul Branch of the Forensic Medicine Institute and requested that further examinations be conducted on the hair samples found in Mustafa Döleksoy’s left hand with a view to establishing whether they belonged to Mustafa Döleksoy and whether they were even human hair. The prosecutor also asked the Institute to explain why the hair samples had not responded to DNA analysis and requested that both hair samples be returned to his office after the new examination. 22. On 21 January 2008 the first applicant, Sultan Dölek, and her husband petitioned the Erdemli prosecutor and requested that a number of witnesses, including persons living in the same summer house complex where their son was found dead, be heard. Mr and Mrs Dölek also repeated their earlier request for their deceased son’s telephone records to be examined and informed the prosecutor that two persons had told them that their son had been receiving threatening telephone calls shortly before his death. 23. Mustafa Döleksoy’s parents also informed the prosecutor that their son and his wife had been involved in prolonged court proceedings in the course of which his wife had refused to divorce him. They alleged that Mustafa Döleksoy’s wife, accompanied by a number of persons, had attempted to go secretly to the farmhouse where Mustafa Döleksoy had been living some one and a half years previously, but had been deterred by his dogs. The dogs had subsequently been mysteriously poisoned and killed. They added that Mustafa Döleksoy’s wife had told them on a number of occasions that she would not divorce Mustafa Döleksoy and that she would “make him suffer”. They also added that their son’s death had occurred some two weeks after he had brought a new case for divorce. Finally, Mr and Mrs Dölek asked the prosecutor to examine why the hair found in their son’s hand had not responded to DNA analysis when the hair taken from his head by the crime scene officers had. 24. On 11 February 2008 Mr and Mrs Dölek presented another petition to the same prosecutor. They reiterated the suspicions they had voiced earlier about the alleged role of Mustafa Döleksoy’s wife in their son’s death and added that they had suspicions that the wife’s sister had also been involved in Mustafa Döleksoy’s death. They gave the prosecutor a copy of a post mortem report pertaining to the examination of the body of İ.B., who had been the husband of Mustafa Döleksoy’s wife’s sister, and who had been found dead in his house in 2001 in circumstances similar to those of their son. They told the prosecutor that İ.B.’s post mortem report had been given to them by their son Mustafa Döleksoy, who had told them that his wife and her sister might have been responsible for İ.B.’s death and that if anything were to happen to him, they should give that document to the investigating authorities. 25. A specialist department within the Istanbul Branch of the Forensic Medicine Institute conducted a number of further examinations and adopted its report on 20 October 2008 in response to the prosecutor’s request of 25 December 2007 (see paragraph 21 above). It was established in the report that the hair found in Mustafa Döleksoy’s hand was human hair and that a certain amount of force must have been used to pull them from the scalp. The report confirmed the conclusion of the earlier forensic examinations that the “hair samples were not responding to DNA analysis”. According to the report, macroscopic and microscopic examination of the hair found in Mustafa Döleksoy’s hand had revealed strong similarities to the samples of his own hair. 26. On 4 December 2008 the Erdemli Public Prosecutor decided to close his investigation into the death. Taking into account the medical reports summarised above, the prosecutor considered that there was no evidence to show that Mustafa Döleksoy’s death had been “caused by an external source, such as having been killed intentionally or unintentionally by another person or persons”. 27. On 25 December 2008 Mrs Dölek filed an objection against the prosecutor’s decision, and argued that the investigation had been deficient. She alleged that the prosecutor had failed to take into account the information provided in her petitions. She further complained that the residents of a flat facing that of her son had not been heard and that the search for fingerprints and other evidence had not been carried out properly. Her son’s mobile telephone records had not been examined with a view to checking the calls made to and from his telephone at around the time of his death. She also questioned the forensic reports and submitted that the reason why the hair found in her son’s hand had not responded to DNA analysis while the hair samples taken from his own head had, had not been explained in the reports. 28. On 26 March 2009 the Tarsus Assize Court considered that the reasons set out in the prosecutor’ decision were adequate and rejected the objection lodged by the first applicant. This decision was communicated to the applicants’ lawyer on 28 May 2009. 29. The first applicant made an application to the Ministry of Justice on 6 April 2009 and asked the Minister to use his powers to intervene and issue an order to have the decision of the Tarsus Assize Court set aside. She repeated her earlier misgivings about the prosecutor’s investigation and argued that the decision of the Tarsus Assize Court rejecting her objection had not been adequately reasoned. She added that, although a decision had been made to return to the family the clothes her son had been wearing at the time of his death, this had not been done. 30. The application to the Ministry of Justice was rejected on 13 May 2009 on the grounds that the Tarsus Assize Court’s decision was in accordance with applicable law and procedure. 31. On 17 September 2009 Mrs Dölek wrote to the Erdemli prosecutor, and requested a copy of the investigation file together with the hair samples because she wanted to have a DNA examination of them carried out privately at a university. She pointed out that, according to academics from several universities with whom she had had contacts, a DNA examination could satisfactorily be carried out on the hair samples. 32. In reply to Mrs Dölek’s request, the Erdemli Public Prosecutor took another decision of non-prosecution on 13 October 2009 in which he set out the steps taken previously in the investigation. The prosecutor decided to give a copy of the documents from the investigation file, but refused permission for the hair samples to be handed over. He considered that this part of the request was not in conformity with domestic legislation. 33. Mrs Dölek lodged an objection on 22 October 2009 against the prosecutor’s decision and repeated her allegations about the investigation. 34. On 7 December 2009 the Tarsus Assize Court upheld the prosecutor’s decision because it considered that this decision had been adequately reasoned. That decision was served on the applicants’ lawyer on 14 January 2010. 35. A request made by the first applicant to the Ministry of Justice on 18 January 2010 to take steps to have the Tarsus Assize Court’s decision of 7 December 2009 set side was rejected by that Ministry on 3 March 2010. The Ministry’s decision was communicated to the applicants on 24 March 2010. 36. When notice of the application was given to the respondent Government, the Court requested the Government to obtain and to submit an explanation from their forensic authorities on whether the Forensic Medicine Institute’s conclusion that the hair found in the deceased person’s hand could not be subjected to DNA analysis was based on an adequate examination. 37. The Government complied with that request and submitted to the Court a report prepared by the Forensic Medicine Institute on 17 August 2012. In this report the scientific methods used by the forensic experts who drafted the above-mentioned reports were explained and it was stated that it had not been possible to obtain “autosomal, gonosomal or mitochondrial DNA results” from the hair found in Mustafa Döleksoy’s hand. THE LAW I. ALLEGED VIOLATION OF ARTICLES 2 AND 13 OF THE CONVENTION 38. Relying on Articles 2 and 13 of the Convention the applicants complained that the State had failed to protect the life of Mustafa Döleksoy on account of its failure to carry out an effective investigation into his death. 39. The Court deems it appropriate to examine the applicants’ complaint solely from the standpoint of Article 2 of the Convention, which reads as follows: “1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” 40. The Government contested those allegations. A. Admissibility 1. Compliance with the requirement to exhaust domestic remedies 41. The Government pointed out that only the first applicant Mrs Sultan Dölek had taken part in the domestic proceedings and lodged an objection against the Erdemli prosecutor’s decisions not to institute a criminal case and argued that the remaining six applicants had thus failed to comply with the requirement to exhaust domestic remedies. 42. The applicants submitted that Article 2 of the Convention, as interpreted by the Court in its judgments, obliged national authorities to investigate a death as soon as they become aware of it. They also submitted that their complaints concerned the effectiveness of the prosecutor’s investigation and that there had not been a criminal trial in which they could have taken part as civil parties. 43. The Court notes that, as pointed out by the applicants, discovery of a dead body in suspicious circumstances gives rise ipso facto to an obligation under Article 2 of the Convention to carry out an effective investigation into the circumstances surrounding the death (see, inter alia, Süheyla Aydın v. Turkey, no. 25660/94, § 171, 24 May 2005). Indeed, the national legislation of Turkey also obliges prosecutors to investigate suspicious deaths ex proprio motu without waiting for an official complaint. This was indeed what happened in the present case where the Erdemli prosecutor started an investigation immediately after the discovery of Mustafa Döleksoy’s body long before the first applicant made an official complaint. 44. Having regard to the national authorities’ above-mentioned ex officio obligation to investigate deaths, and having further regard to the fact that one of the applicants has made use of the available domestic remedies and brought their Convention complaints to the attention of the national authorities, the Court considers that the involvement of one of the applicants was sufficient and that it was not necessary for all seven applicants to intervene in the investigation (see, inter alia, Yüksel Erdoğan and Others v. Turkey, no. 57049/00, §§ 74-75, 15 February 2007). 45. In light of the above, the Court dismisses the Government’s objection based on the exhaustion of domestic remedies. 2. Compliance with the six-month time-limit 46. The Government were of the opinion that the investigation into the applicants’ relative’s death had been completed on 26 March 2009 (see paragraph 28 above) when the Tarsus Assize Court upheld the Erdemli prosecutor’s first decision dated 4 December 2008 (see paragraph 26 above). They noted that the Tarsus Assize Court’s decision had been served on the applicants on 28 May 2009 (see paragraph 28 above) and argued that the applicants had failed to comply with the six-month time limit because they had not lodged their application with the Court within six-months following that date. 47. The Government argued that, even though the Erdemli prosecutor subsequently rendered another decision of non-prosecution in response to the first applicant’s request for certain items to be returned to her, that decision did not interrupt the running of the six-month time-limit because no new evidence had been adduced or proposed in order to revive the procedural obligation to investigate Mustafa Döleksoy’s death. In support of these submissions the Government referred to the judgments in the cases of Gasyak and Others v. Turkey (no. 27872/03, § 63, 13 October 2009); and Brecknell v. the United Kingdom (no. 32457/04, § 71, 27 November 2007). 48. The applicants responded by claiming that they had complied with the six-month rule as they had lodged their application within six months after the decision of the Ministry of Justice rejecting their application had been communicated to them on 24 March 2010 (see paragraph 35 above). 49. The Court stresses at the outset that relevant parts of the judgments referred to by the Government in the preceding paragraph concern the issue of whether an item of evidence or crucial new information revives the obligation to carry out an effective investigation into a death. As such, they are irrelevant in the present case. In the present case, after the completion of the criminal investigation on 26 March 2009 with the Tarsus Assize Court’s rejection of the objection lodged by the applicants (see paragraph 28 above), the applicants wrote to the prosecutor and asked for the hair found in the hand of their relative to be handed over to them so that they could have it forensically examined. 50. The Court considers that request to be a continuation of the applicants’ attempts to have the death of their close relative investigated. The Court, like the applicants, also considers the hair found in Mustafa Döleksoy’s hand to be potentially relevant in order to clarify the circumstances concerning the death of Mustafa Döleksoy and finds that the applicants’ attempts to have it privately examined by forensic experts at a university was not unreasonable. Given that the response of the prosecutor to the applicants’ request was in the form of a decision not to prosecute, the Court considers that the applicants did not act unreasonably by lodging an objection against that decision. Indeed, subsequently the Tarsus Assize Court examined the merits of both the prosecutor’s decision and the applicants’ objection in its decision of 7 December 2009. 51. As for the applicants’ submissions that they complied with the six-month rule by introducing their application within six months after the decision of the Ministry of Justice rejecting their application had been communicated to them on 24 March 2010, the Court notes that the applicants’ application to the Ministry of Justice to have the decision of the Tarsus Assize Court set aside was made in accordance with the “appeal in the interest of law” procedure, provided for in section 309 of the Code of Criminal Procedure. The Court has already examined that particular procedure and considered it to be an extraordinary remedy because it was not directly accessible (see Bayraktaroğlu v. Turkey (dec.), no. 5283/10, 23 October 2012). It therefore finds that exhausting that particular remedy does not interrupt the running of the six-month time-limit which started to run when the Tarsus Assize Court’s decision rejecting the applicants’ objection to the prosecutor’s second decision was served on the applicants on 14 January 2010 (see paragraph 34 above). Noting that the applicants introduced their application with the Court on 3 June 2010, the Court considers that they complied with the six-month rule. 52. In view of the aforementioned considerations, the Court dismisses the Government’s objection based on the six-month time-limit. 53. 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 applicants 54. The applicants complained that very few steps had been taken by the national authorities, and argued that those steps were not sufficient to clarify the circumstances surrounding their relative’s death. In the opinion of the applicants, the steps taken in the investigation had not been adequate to establish whether Mustafa Döleksoy had been killed intentionally or unintentionally. 55. The applicants drew the Court’s attention to the failure to establish the cause of Mustafa Döleksoy’s death and challenged the credibility of the forensic reports. They pointed out that a DNA examination had not been carried out on the hair found in Mustafa Döleksoy’s hand and argued that the macroscopic examination conducted on that hair was not sufficient to conclude that it was his own hair. In any event, it was absurd to suggest that a fatally injured person would pull his own hair out. 56. The applicants also argued that the crime scene investigations had not been conducted properly; in particular, the crime scene officers had not looked for fingerprints and had not examined Mustafa Döleksoy’s clothes. In this connection they challenged the conclusion reached by the doctor from the health centre, namely that Mustafa Döleksoy had met his death after having fallen from the worktop in the kitchen (see paragraph 10 above), and argued that that conclusion was not supported by any evidence. Nevertheless, no authority had questioned that finding and given thought to the impossibility of such an occurrence because the space between the worktop and the wall facing it was so narrow that no manner of falling would have caused the injuries found on Mustafa Döleksoy. 57. The applicants complained that the investigating authorities had not only failed to question the neighbours whose houses faced that of Mustafa Döleksoy with a view to finding out whether they had heard or seen anything suspicious, but had even failed to question the witnesses named and proposed by them who would have been in a position to provide information to the authorities about the threats received by Mustafa Döleksoy shortly before his death. 2. The Government 58. The Government submitted that the investigation into Mustafa Döleksoy’s death had been carried out by an independent and impartial judicial authority, namely the Erdemli prosecutor, who had commenced an investigation ex proprio motu immediately after the incident. The investigation had been accessible to the applicants and they had been able to make several requests to the national authorities. Furthermore, the authorities had acted speedily and completed the investigation within nineteen months. 59. During the course of the investigation the authorities had taken all necessary steps and the investigation had thus been capable of leading to the identification of anyone who may have been responsible for the death. 60. When notice of the application was given to them, the Court invited the Government to clarify the reasons behind the investigating authorities’ failure to question the neighbours living near Mustafa Döleksoy’s summer house and to look for any potential eyewitnesses. In response to that question the Government argued that there had been nothing in the statements taken from Mustafa Döleksoy’s two relatives, the caretaker or the security guard (see paragraph 11 above) to “raise any doubt of homicide, intentional or unintentional”. Secondly, the Forensic Medicine Institute had stated in its report dated 20 October 2008 that “the hair samples found in the hand of Mustafa Döleksoy morphologically revealed strong similarities to the samples taken from his own scalp”. That evidence, in the opinion of the Government, had excluded the involvement of another person and the existing evidence at that time had already shed light on the incident. 61. The Government further submitted that the persons whom the first applicant had requested in her petition of 21 January 2008 to be heard (see paragraph 22 above) had had no direct information which could have altered the course of the investigation. Referring to the Court’s case-law, the Government submitted that Article 2 of the Convention did not impose a duty on the investigating authorities to satisfy each and every request made by a relative in the course of an investigation. 62. In response to another question put to them by the Court the Government argued that the hair found in Mustafa Döleksoy’s hand had been subjected to a number of detailed analyses by using advanced techniques. However, these tests had revealed that it was not possible to make a DNA examination. 63. The Government submitted that the fact that some persons had not been heard as witnesses and that DNA results could not be obtained from the hair samples had not diminished the effectiveness of the investigation. They added that there had not been any other actions left to take by their authorities and that the obligations arising from Article 2 of the Convention and the Court’s established case-law on the subject had been fulfilled in the present case. 3. The Court’s assessment 64. The Court observes that the applicants’ complaint relates solely to the effectiveness of the investigation carried out by the national authorities into the death of their relative and, as such, should be examined from the standpoint of the procedural obligation to carry out effective investigations. 65. To that end, the Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see McCann and Others v. the United Kingdom, 27 September 1995, § 161, Series A no. 324; and Kaya v. Turkey, 19 February 1998, § 105, Reports of Judgments and Decisions 1998‑I). 66. In that connection, the Court points out that this obligation is not confined to cases where it is apparent that the killing was caused by an agent of the State (see Salman v. Turkey [GC], no. 21986/93, § 105, ECHR 2000‑VII). Neither is it confined to cases where it is apparent that the victim has been killed; authorities faced with a suspicious death will also be under an obligation to carry out an effective investigation (see Kolevi v. Bulgaria, no. 1108/02, § 191, 5 November 2009 and the cases cited therein). 67. The Court reiterates that the obligation to investigate is not an obligation of result, but of means; as such, not every investigation should necessarily be successful or come to a conclusion which coincides with the claimant’s account of events. However, it should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible (see Mikheyev v. Russia, no. 77617/01, § 107, 26 January 2006 and the cases cited therein). 68. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard (see Aktaş v. Turkey, no. 24351/94, § 300, ECHR 2003‑V (extracts) and the cases cited therein). In particular, the investigation’s conclusion must be based on thorough, objective and impartial analysis of all relevant elements. Failing to follow an obvious line of enquiry undermines to a decisive extent the investigation’s ability to establish the circumstances of the case and the identity of those responsible (see Kolevi v. Bulgaria, cited above, § 201, and the judgments cited therein). 69. Turning to the specific circumstances of the present case, and having regard to the injuries observed on Mustafa Döleksoy, the Court considers it appropriate to stress at the outset that the fact that the forensic authorities were unable to find any medical evidence to show the involvement of an external factor in the death does not exclude foul play, given that in any event, those authorities were also unable to establish the circumstances leading to the death on account of the advanced state of decomposition of the body (see paragraph 19 above). In any event, the carrying out of an investigation solely with a view to establishing or ruling out the involvement of other persons in a suspicious death is not sufficient to satisfy the procedural obligation; the national authorities’ obligation also extends to establishing the cause of the death (Kolevi v. Bulgaria, cited above, § 191). 70. In the light of the foregoing the Court considers that Mustafa Döleksoy’s death was “suspicious” within the meaning of the preceding paragraph and required an investigation. In this connection the Court considers it noteworthy that the prosecutor who examined the body also considered it necessary to conduct a post mortem examination to eliminate any suspicions by determining the exact cause of death and the cause of the injuries observed on the head (see paragraph 14 above). The Court will therefore examine whether or not the national authorities carried out an effective investigation capable of establishing the circumstances leading to Mustafa Döleksoy’s death and leading to the identification and punishment of anyone responsible for it. 71. The Court agrees with the applicants that indeed very few steps appear to have been taken by the authorities in investigating the death. In fact, in the course of the entire investigation, the only pertinent steps were the examinations conducted by the forensic authorities. Although, admittedly, those examinations had been ordered by the investigating prosecutor (see paragraphs 14 and 21 above), no other steps appear to have been taken by that prosecutor while the forensic examinations were being carried out. For example, in the period that elapsed between the discovery of the body on 25 August 2007 and the preparation of the post mortem report on 12 November 2007, which should have been regarded as the most crucial period in the investigation into the death, no investigatory steps appear to have been taken by the prosecutor. 72. The applicants argued that the investigating authorities failed to question the neighbours who faced the summer house of Mustafa Döleksoy. There is indeed no indication that the prosecutor or any other investigator spoke during the investigation to the residents living in the vicinity of Mustafa Döleksoy’s house. The Court considers that the questioning of these potential witnesses, as soon as possible after the discovery of the body, could have yielded information on whether they had seen or heard anything suspicious. It considers that the failure to take such an obvious measure constitutes an important gap in the investigation (see paragraph 80 below). 73. In this connection the Court notes that the Government have tried to explain this failure by submitting that there had been nothing in the statements taken from Mustafa Döleksoy’s two relatives, the caretaker or the security guard to “raise any doubt of homicide, intentional or unintentional”. The Court is not convinced by those submissions. It observes that the statements taken from the two relatives, the caretaker and the security guard (see paragraph 11 above) merely confirmed that those persons had no relevant information to offer in respect of the death and do not conclusively rule out the involvement of another person in Mustafa Döleksoy’s death. 74. The Government also referred to the Forensic Medicine Institute’s report of 20 October 2008 according to which the hair samples found in Mustafa Döleksoy’s hand had morphologically revealed strong similarities to the samples taken from his own scalp. This, in the opinion of the Government, meant that no one had been involved in the death and that the incident had already been solved (see paragraph 25 above). Once again the Court is unable to accept the Government’s submissions because it notes that the report referred to by the Government was drawn up more than one year after Mustafa Döleksoy’s body was found and cannot, therefore, explain the prosecutor’s failure to seek and question any eyewitnesses during that period. 75. The Court also calls into question the efficacy of the crime scene investigation conducted in Mustafa Döleksoy’s house after the discovery of his body. As pointed out by the applicants, no attempts appear to have been made to look for fingerprints or to examine the condition of the entrance and exit points to the house. Moreover, the clothing worn by Mustafa Döleksoy was not preserved and not subjected to forensic examination because the prosecutor considered that “it had no evidential value” (see paragraph 13 above). 76. Furthermore, although Mustafa Döleksoy’s mobile phone was found in his pocket and could have offered important leads about his movements and the persons with whom he had been in contact immediately before his demise, it was not examined. 77. The Court notes that the national authorities not only failed to take those most rudimentary investigatory steps, but also failed to act even after they were urged to do so by the applicants in their many requests submitted to them (see paragraphs 20, 22-24, 27, 29, 31, 33 and 35 above). As set out above, no responses were given to the pertinent points raised by the applicants in the course of the investigation, which continued for a period of two and a half years, and no explanations were proffered to justify those failures by arguing, for example, that questioning the people in the vicinity, looking for fingerprints in the house, examining the call records in the mobile phone and forensically examining the clothes would not be relevant to solving the incident. 78. The Court also notes the doubts raised by the applicants throughout the investigation about the results of the forensic examinations according to which the hair found in Mustafa Döleksoy’s hand had not responded to DNA analysis. The Court considers that the main reason for the applicants’ dissatisfaction with the forensic authorities’ actions seems to be that the authorities’ failed to clarify with any certainty the reasons why the hair found in Mustafa Döleksoy’s hand had not responded to DNA analysis. In this connection the Court stresses that its own doubts about the failure to explain those reasons were not dispelled by the information obtained from the Forensic Medicine Institute at its request. It notes that the report merely states that “it had not been possible to obtain autosomal, gonosomal or mitochondrial DNA results” from the hair found in Mustafa Döleksoy’s hand and does not seek to explain the reasons for that failure (see paragraph 37 above). 79. The Court considers that the applicants’ suspicions must have been exacerbated by the added failure to explain why the hair sample taken from Mustafa Döleksoy’s head post mortem had responded to DNA analysis when the hair found in his hand had not. Without passing judgment on the quality of the examinations conducted by the respondent State’s forensic experts and notwithstanding the respondent State’s obligation to pursue an effective investigation, the Court considers it pertinent for its assessment that the applicants were denied the opportunity to have the hair examined privately by forensic experts according to whom it would have been possible to obtain results (see paragraph 31 above). Had the applicants been able to do so and establish that the hair belonged to another person, they could have brought that information to the attention of the judicial authorities who would have had to conduct fresh inquiries. If the results of the private forensic examinations had confirmed the results of the Forensic Medicine Institute, then the applicants’ suspicions would have been alleviated. 80. Finally, the Court considers that the information the applicants brought to the prosecutor’s attention about the threats made to Mustafa Döleksoy shortly before his death and the suspicions raised by the applicants about the involvement of certain persons in the death (see paragraphs 22-24 above) were not frivolous and should not have been discarded without any explanation, but deserved some degree of verification. Nevertheless, there is no information in the file to suggest that even the most rudimentary steps were taken in respect of that information and those suspicions. 81. The Court agrees with the Government that Article 2 of the Convention does not impose a duty on the investigating authorities to satisfy every request made by a relative in the course of an investigation. However, it considers that the requests made by the applicants were so important and pertinent that clarifying the circumstances surrounding Mustafa Döleksoy’s death could not conceivably have been achieved without taking them into consideration. 82. As set out above, according to the Court’s case-law, any deficiency in an investigation which undermines its ability to establish the circumstances leading to the death ‒ or the person responsible for such a death ‒ will risk falling foul of the standard of effectiveness expected from the national authorities (see paragraph 68 above). Having examined and highlighted the numerous failures in the investigation in the present case, the Court concludes that the investigation conducted into Mustafa Döleksoy’s death was not capable of establishing the cause of death or leading to the identification and punishment of anyone who might have been responsible for it. 83. The Court concludes, therefore, that there has been a violation of Article 2 of the Convention in its procedural aspect in respect of Mustafa Döleksoy’s death. 84. In the particular circumstances of the present application the Court considers it appropriate to refer to a set of recent amendments introduced in the Turkish legal system. According to those amendments, in cases in which the Court finds a violation of the Convention on account of a failure to carry out an effective investigation, the applicants have the opportunity to ask the national authorities to reopen investigations into the deaths of their relatives (see Durmaz v. Turkey, no. 3621/07, § 34 and 68, 13 November 2014). It is therefore possible for the applicants in the present case to ask the investigating authorities to reopen the investigation into the death of Mustafa Döleksoy and to ask those authorities to conduct a new and effective investigation by taking into account the deficiencies identified by the Court in the previous investigation. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 85. Lastly, the applicants complained under Article 14 of the Convention that the criminal investigation had not been conducted in a satisfactory manner because their relative had not been a well-known person. 86. In light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court does not find that this complaint discloses any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. 87. It follows that this part of the application should be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 88. 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 89. The first applicant claimed 10,000 euros (EUR) in respect of pecuniary damage. She claimed that her son Mustafa Döleksoy used to provide for her financially and as a result of his death she was deprived of that financial assistance. 90. Each of the fourth and the fifth applicants claimed EUR 5,000 in respect of pecuniary damage and claimed that as a result of their brother’s death they had been deprived of the financial assistance provided to them by their brother. 91. The applicants also claimed a total of EUR 90,000 in respect of non-pecuniary damage. 92. The Government considered that there was no causal link between the alleged violation and the claim for pecuniary damage. They also considered that the sums claimed for both pecuniary and non-pecuniary damage were excessive and did not correspond to the awards made by the Court in its judgments. 93. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects those claims. On the other hand, it awards the seven applicants, jointly, EUR 20,000 in respect of non-pecuniary damage. B. Costs and expenses 94. The applicants claimed that they had agreed to pay their legal representative the total sum of 10,000 Turkish Lira (TRY – EUR 4,220) for the costs and expenses incurred before the Court. They submitted to the Court the bills given to them by their legal representative, showing that they had paid that legal representative the amount of TRY 3,000 (approximately EUR 1,260) on 16 May 2011 as the first instalment. In support of their claims the applicants also submitted to the Court a copy of the Mersin Bar Association’s recommended fee scales. 95. The Government invited the Court not to make an award for costs and expenses because of the applicants’ failure to itemise their claim and to show that those expenses had actually been incurred. 96. 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, the Court observes that the applicants have submitted bills showing that they had paid their legal representative the amount of TRY 3000 (EUR 1,260), but have not submitted any other documentation – such as a bill, a fee agreement or a document showing the time spent by the legal representatives on the case – in support of the remainder of their claim of EUR 4,220. It is to be observed in this connection that a mere reliance on the recommended fee scales issued by Bar Associations does not constitute sufficient evidence to substantiate a claim for a legal representative’s fees (see, inter alia, Eşim v. Turkey, no. 59601/09, §§ 28 and 31, 17 September 2013). 97. In light of the foregoing, and regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicants jointly the sum of EUR 1,260 covering costs under all heads. From this sum there should be a deduction of EUR 850 in respect of legal aid granted under the Council of Europe’s legal aid scheme (see paragraph 2 above). C. Default interest 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. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares, by a majority, admissible the complaints made by the first applicant Mrs Sultan Dölek under Article 2 of the Convention concerning the effectiveness of the investigation; 2. Declares, by a majority, admissible the complaints made by the remaining six applicants under Article 2 of the Convention concerning the effectiveness of the investigation; 3. Declares, unanimously, inadmissible the remainder of the application; 4. Holds, by six votes to one, that there has been a violation of Article 2 of the Convention in its procedural aspect in respect of the first applicant’s complaints that the national authorities failed to carry out an effective investigation into the death of Mustafa Döleksoy; 5. Holds, by four votes to three, that there has been a violation of Article 2 of the Convention in its procedural aspect in respect of the remaining six applicants’ complaints that the national authorities failed to carry out an effective investigation into the death of Mustafa Döleksoy; 6. Holds, by four votes to three, (a) that the respondent State is to pay the applicants jointly, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,260 (one thousand two hundred and sixty euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, less the EUR 850 (eight hundred and fifty euros) granted by way of legal aid; (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; 7. Dismisses, unanimously, the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 28 April 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithAndrás SajóRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinions of Judges Sajó, Keller and Spano are annexed to this judgment. A.S.S.H.N. DISSENTING OPINION OF JUDGE SAJÓ To my regret, I was unable to follow the majority in this case which is, in any event, inadmissible. The final judgment concerning the prosecutor’s decision not to bring a prosecution was communicated on 28 May 2009. The application was submitted on 3 June 2010, more than six months after the final domestic decision. The first applicant’s application to the Ministry of Justice is irrelevant. This is not a remedy to be exhausted. A further request, which was essentially the same as the original request, was made to the prosecutor, who did not take additional procedural steps. No new evidence was adduced (see Brecknell v. the United Kingdom, no. 32457/04, § 71, 27 November 2007). Needless to say, the other applicants cannot even claim that the continued refusal to bring a prosecution made a difference in their regard. In the context of the State’s obligation to protect the right to life, the State is under an obligation to carry out an effective investigation in the event of a suspicious death. This is not confined to cases where it is apparent that the killing was caused by a State agent. There is nothing in the case file indicating the involvement of a State agent in the present case, and therefore the suspicious nature of the death must be considered without the heightened duty of scrutiny that is applicable in cases involving State agents. The Court cites Kolevi v. Bulgaria, no. 1108/02, § 191, 5 November 2009, and other cases in which the death was suspicious because a bullet was found in the victim’s body. This case is different. The victim was lying on the floor with fractures to the head. The door was closed. A security guard was on duty. Three forensic reports were obtained, and an explanation was provided as to the origin of the hair, which did not correspond to the DNA analysis. There is nothing unusual or suspect in this finding[1] and “traditional” methods of hair identification indicated with a high degree of probability that the hair originated from the victim. The failure to question additional potential witnesses and the lack of further forensic analysis would not be considered a violation of Article 6 (fairness) had this case been one in which a suspect was convicted after a domestic court had found these factors to be irrelevant. The investigation satisfied the conditions of Anguelova v. Bulgaria (no. 38361/97, § 140, ECHR 2002‑IV): in view of the fact that “the degree of public scrutiny required may well vary from case to case” and in the absence of specific suspicion of external interference (other than the applicants’ speculations) and any appearance of collusion, there can be no violation of Article 2 in the present case. PARTLY DISSENTING AND PARTLY CONCURRING OPINION OF JUDGE KELLER I voted with the majority of my colleagues on whether there had been a violation of Article 2 of the Convention in its procedural aspect in respect of the first applicant’s complaints that the domestic authorities had failed to conduct an effective investigation into her son’s death. However, for the reasons set out below, I am unable to agree with the majority that the application should be declared admissible as regards the remaining six applicants. As a result, I cannot agree, firstly, that there has been a violation of Article 2 in its procedural aspect in respect of the remaining six applicants’ complaints that the domestic authorities failed to conduct an effective investigation into Mustafa Döleksoy’s death (I). Secondly, I believe that the Court should have mentioned the fact that an attempt was made to settle the case on the basis of a friendly settlement which ultimately did not yield any result (II). I. Exhaustion of domestic remedies by Mustafa Döleksoy’s siblings 1. In the past, the Convention institutions have accepted applications from relatives of a deceased person where a violation of Article 2 was concerned. For example, the Court has acknowledged the victim status of a deceased’s wife (see Aytekin v. Turkey, 23 September 1998, Reports of Judgments and Decisions 1998-VII), a deceased’s mother (see Çiçek v. Turkey, no. 25704/94, 27 February 2001), a deceased’s father (see Hugh Jordan v. the United Kingdom, no. 24746/94, ECHR 2001-III (extracts)), a deceased’s brother and sister (see Ergi v. Turkey, 28 July 1998, Reports 1998-IV; and Şemsi Önen v. Turkey, no. 22876/93, 14 May 2002). However, the issue here is not whether the deceased’s relatives had victim status as indirect victims, but whether they exhausted the available domestic remedies. 2. Article 35 § 1 of the Convention requires applicants to exhaust domestic remedies before taking their case to Strasbourg. This principle, which expresses the subsidiarity of the machinery of protection established by the Convention, affords States the opportunity to remedy violations through their domestic legal systems before having to answer to the Court (see Vučkovič and Others v. Serbia [GC], no. 17153/11 etc., § 68, 28 August 2012). 3. In the past, the Court has excused applicants from exhausting domestic remedies that promised no real chance of addressing an alleged violation; furthermore, it has established that the respondent State must prove the availability and sufficiency of domestic remedies (see Aydın v. Turkey, no. 25660/94, Commission decision of 12 January 1998). For example, in Süheyla Aydın v. Turkey, which concerned the death of the applicant’s husband and two other individuals, all of whom had last been seen in the custody of State agents, the Court took the circumstances into consideration. It noted that the authorities denied having had custody of the victims at the time of their death and that the ex officio domestic investigation had not yielded any results; it consequently held that the applicant was not required to exhaust further domestic remedies (see Süheyla Aydın, cited above). 4. When a death occurs under suspicious circumstances, the domestic authorities are under an obligation to conduct an effective official investigation even if the death is not imputable to State agents (see Rantsev v. Cyprus and Russia, no. 25965/04, § 232, ECHR 2010 (extracts); citing Menson v. the United Kingdom (dec.), no. 47916/99, ECHR 2003-V). The authorities cannot leave it to the next-of-kin to take the initiative to commence an investigation or assume responsibility for its conduct (see Rantsev, cited above, § 232; citing İlhan v. Turkey [GC], no. 22277/93, § 63, ECHR 2000-VII; see also Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 69, ECHR 2002-II). These principles apply in the present case, as the majority noted in paragraphs 43 and 44 of its judgment. However, this obligation alone does not suffice to exempt the applicants from exhausting domestic remedies. Any other conclusion would erode the exhaustion criterion in many Article 2 cases and deprive States of the opportunity to examine applicants’ claims via their own judiciary. 5. In the present case, the majority based its arguments on the case of Yüksel Erdoğan and Others v. Turkey (see paragraph 45 of the judgment). The facts of that case revolved, however, around a gun fight between the applicants’ relatives and a group of police officers in an Istanbul café. In its judgment in that case, the Court noted that three of the applicants, who were the mother and siblings of one of the deceased, had not intervened in the criminal proceedings as a civil party, nor had they lodged a criminal complaint. Nevertheless, the Court held that it was not necessary for them to take these steps. The Court based its reasoning on the fact that the domestic authorities were obliged to investigate of their own motion killings resulting from the use of force by members of the security forces, as well as on the fact that the deceased’s father had “joined the proceedings in question and raised all the issues concerning his son’s killing” (see Yüksel Erdoğan and Others v. Turkey, no. 57049/00, § 75, 15 February 2007). 6. Yüksel Erdoğan and Others must be distinguished from the present circumstances on the facts. In the former case, the applicants’ relatives had been killed – execution-style, according to their submissions – by police officers who were all acquitted almost nine years later (see Yüksel Erdoğan and Others, cited above, § 77). By contrast, there is no indication in the present case that Mustafa Döleksoy was killed by State actors. While the domestic investigation was ultimately deficient in this case, it is nonetheless to be distinguished from the special situation of State involvement in a death followed by passivity or even partiality on the part of the authorities or the utter ineffectiveness of the domestic remedies (compare Aytekin v. Turkey (preliminary objection), 23 September 1998, § 85, Reports 1998‑VII). 7. Though there were effective remedies available before the Turkish courts, Mustafa Döleksoy’s adult siblings did not participate personally in the proceedings at the domestic level, instead allowing their parents – and later their mother – to do so alone. While the requirement to exhaust domestic remedies under Article 35 § 1 must be applied with some flexibility, I consider the degree of flexibility employed by the majority in this judgment to be unwarranted and not in conformity with the underlying principle of subsidiarity whereby applicants must have acted at domestic level so as to afford the member States the opportunity to secure their Convention rights. By finding that it was not necessary for the deceased’s siblings to exhaust domestic remedies, the majority departed from the test of determining whether, under the circumstances, an applicant or applicants did everything that could be reasonably expected to exhaust domestic remedies (see Avşar, cited above, § 380, with further references). At the time of the domestic investigation, Mustafa Döleksoy’s siblings failed to show any interest in participating in the proceedings. While this may later have changed, no special circumstances warrant an exemption from the requirement to exhaust domestic remedies. Though a different result may have been possible in the exceptional circumstances of Yüksel Erdoğan and Others, the same cannot be said for the present case. 8. In the light of the above, I cannot agree with the majority on the exemption of the deceased’s siblings from the requirement to exhaust domestic remedies. The majority’s approach makes the degree of flexibility employed in Yüksel Erdoğan and Others possible in many or all cases under Article 2 of the Convention, a result I consider contrary to the requirements of the exhaustion rule. Accordingly, I also voted against point no. 6 in the operative part of the judgment, as I believe that the siblings should not be granted any award under Article 41. II. The failed friendly settlement 1. In paragraph 5 of its judgment, the majority mention that the Government proposed that the case be struck out on the basis of a unilateral declaration that was eventually rejected by the Court. I fully agree that this case merits examination in the form of a judgment. However, I believe that the fact that a friendly settlement was attempted but not reached should be mentioned in the judgment, as the Court has done on many occasions: Rosenzweig and Bonded Warehouses Ltd. v. Poland: “Friendly-settlement negotiations between the parties failed to yield a result” (Rosenzweig and Bonded Warehouses Ltd. v. Poland (just satisfaction), no. 51728/99, § 6, 5 June 2012). Megadat.com SRL v. Moldova: “On 19 August 2010, after failing to reach a friendly-settlement agreement with the applicant company, the Government informed the Court that they proposed issuing a unilateral declaration with a view to resolving the issue of just satisfaction” (Megadat.com SRL v. Moldova, no. 21151/04, § 7, judgment of 17 May 2011). Racu v. Moldova: “The applicant and the Government did not reach a friendly settlement” (Racu v. Moldova, no. 13136/07, § 6, judgment of 20 April 2010). Toğcu v. Turkey: “The parties further considered the possibility of a friendly settlement, but no settlement was reached” (Toğcu v. Turkey, no. 27601/95, § 7, judgment of 31 May 2005). 2. I am fully aware that friendly-settlement negotiations are confidential and without prejudice to the parties’ arguments in the contentious proceedings. Pursuant to Rule 62 of the Rules of Court, no written or oral communication and no offer or concession made in the framework of the attempt to secure a friendly settlement may be referred to or relied on in the contentious proceedings (see Tahsin Acar v. Turkey [GC], no. 26307/95, § 74, Reports 2003-VI, for the difference between the confidential negotiation of a friendly settlement and a unilateral declaration, and, more specifically for our purposes, R.R. v. Poland, no. 27617/04, § 96, 26 May 2011). However, the simple fact that an attempt was made to solve the case on the basis of a friendly settlement is not confidential. 3. Friendly settlements are now more popular than at any time in the Court’s history (see, most prominently, the recent Grand Chamber judgment in S.J. v. Belgium (striking out) [GC] (no. 70055/10, 19 March 2015) and compare and contrast with the judgments in W.H. v. Sweden (striking out) [GC] (no. 49341/10, 8 April 2015) and M.E. v. Sweden (striking out) [GC] (no. 71398/12, 8 April 2015)[2]. The fact that an attempt to strike the case out of the list – in particular a case concerning Article 2 of the Convention – did not yield any result is worthwhile for the world outside the Court to note, and must not be concealed. STATEMENT OF JUDGE SPANO For the reasons provided by Judge Keller in her partly dissenting and partly concurring opinion, I disagree with the majority that the six applicants other than the first applicant exhausted domestic remedies for the purposes of their Article 2 complaints. APPENDIX [1] Even with advanced technology “telogen hairs result in an overall success rate of 77.5% compared with 65% for hairs with no roots.” Roberts KA, Calloway C., “Mitochondrial DNA amplification success rate as a function of hair morphology”. Journal of Forensic Science, 2007 Jan; 52(1):40-7. [2] For a more comprehensive description of the development of the Court’s case-law see Helen Keller / Magdalena Forowicz / Lorenz Engi, “Friendly Settlements Before the European Court of Human Rights – Theory and Practice”, Oxford 2010.

FIFTH SECTION CASE OF YANKOV AND OTHERS v. BULGARIA (Application no. 4570/05) JUDGMENT STRASBOURG 23 September 2010 FINAL 23/12/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Yankov and Others v. Bulgaria, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President,Renate Jaeger,Rait Maruste,Isabelle Berro-Lefèvre,Mirjana Lazarova Trajkovska,Zdravka Kalaydjieva,Ganna Yudkivska, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 31 August 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 4570/05) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by five Bulgarian nationals, Mr Hristo Yankov Yankov (“the first applicant”), Mr Rangel Rangelov Yankov (“the second applicant”), Mrs Ginka Andonova Yankova (“the third applicant”), Mrs Zapryana Angelova Gogova (“the fourth applicant”) and Mr Manol Zlatanov Gogov (“the fifth applicant”), on 21 January 2005. The second and third applicants are spouses. So are the fourth and fifth applicants. 2. The applicants were represented by Mrs S. Stefanova and Mr A. Atanasov, lawyers practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Mrs M. Dimova from the Ministry of Justice. 3. On 11 March 2009 the President of the Fifth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (former Article 29 § 3). THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicants were born in 1966, 1947, 1947, 1972 and 1968 respectively and live in the village of Stryama near Plovdiv. 5. On 24 August 1993 the second, third, fourth and fifth applicants and the son of the second and third applicants, Mr R.R., were caught by the police when attempting to transport stolen fruit. The police officers ordered the second applicant who was driving the cart with the stolen goods to bring the goods to the police station. He did not comply and drove the cart away. The remaining applicants and Mr R.R. went home. 6. On 27 August 1993 the third and fourth applicants and Mr R.R. were questioned in connection to the theft, admitted to it and stated that the fifth applicant had also participated in the theft. The second applicant was questioned and confessed to the offence on 2 September 1993. 7. Apparently these questionings were carried within the framework of police investigation (дознание) no. 582/93. 8. On 20 September 1993 a police officer from the Rakovski district police department proposed to the prosecution authorities to initiate preliminary investigation (предварително производство) for theft against the second, third, fourth and fifth applicants and Mr R.R. He stated in his report that the fifth applicant had not been questioned as he was hiding. 9. Thereafter the case remained dormant until January 2002. 10. On 3 January 2002 a witness was questioned and on 27 January an expert opinion was commissioned. 11. On 29 January 2002 the second, third, fourth and fifth applicants and Mr R.R. were questioned as suspects (уличени) under police investigation no. 582/93 and were charged with theft on the basis of the materials from that police investigation. 12. In February 2003 the case was brought to the Plovdiv District Court, which on 20 February remitted it back to the prosecution authorities because of procedural breaches. 13. On an unspecified date thereafter the charges against Mr R.R. were dropped. 14. On an unspecified date in the end of 2003 or the beginning of 2004 the case was again brought to the District Court. 15. On 24 November 2004 the second, third, fourth and fifth applicants concluded a plea bargain agreement and were sentenced to three months' imprisonment suspended for a period of three years. On the same day the agreement was approved by the Plovdiv District Court. 16. The first applicant did not take part in the above events and was never a party to the criminal proceedings. THE LAW I. COMPLAINTS OF THE FIRST APPLICANT 17. In a letter dated 26 November 2009 the first applicant requested the Court to strike the application out of its list of cases in respect of him as he had not been a party to the criminal proceedings. 18. The Court considers that, in these circumstances, the first applicant may be regarded as no longer wishing to pursue his application, within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case in respect of this applicant. In view of the above, it is appropriate to strike the case out of the list in so far as it has been brought by the first applicant. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 19. The remaining applicants complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” A. The second, third and fourth applicants 1. Period to be taken into consideration 20. The Government argued that for the purposes of Article 6 of the Convention the criminal proceedings commenced only on 29 January 2002 when the applicants were charged. Thus, the Government contended that the proceedings had lasted for about two years and ten months. Accordingly, they considered that the applicants' complaints should be rejected as being manifestly ill-founded. 21. The Court reiterates that in criminal matters, Article 6 of the Convention comes into play as soon as a person is “charged”. According to the Court's case-law, the word “charge” in Article 6 § 1 must be interpreted as having an autonomous meaning in the context of the Convention and not on the basis of its meaning in domestic law. Thus, whilst "charge", for the purposes of Article 6 § 1 may in general be defined as "the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence", it may in some instances take the form of other measures which carry the implication of such an allegation and which likewise substantially affect the situation of the suspect (see, among many others, Deweer v. Belgium, 27 February 1980, § 46, Series A no. 35, Eckle v. Germany, 15 July 1982, § 73, Series A no. 51 and Corigliano v. Italy, 10 December 1982, § 34, Series A no. 57). 22. In the present case the second, third and fourth applicants were caught by the police with the stolen goods as early as 24 August 1993. They were questioned in connection to that offence and confessed to taking part in its commission on 27 August 1993 and 2 September 1993 (see paragraphs 5 and 6 above). These confessions constituted part of the materials under police investigation no. 582/93, on the basis of which on 29 January 2002 these applicants were charged with theft (see paragraphs 7 and 11 above). 23. Having regard to these facts and applying the principles set out above, the Court finds that in the present case the second, third and fourth applicants' situation was “substantially affected” and they could be considered as subject to a “charge” from the moment when they were questioned by the police and confessed to the theft (see, with further reference, Yankov and Manchev v. Bulgaria, nos. 27207/04 and 15614/05, §§ 17-18 and §§ 23-24, 22 October 2009). Accordingly, the beginning of the period to be taken into consideration is 27 August 1993 in respect of the third and fourth applicants and 2 September 1993 in respect of the second applicant. 24. The period ended on 24 November 2004 when the applicants concluded a plea bargain agreement. It thus lasted about eleven years and three months for a preliminary investigation and one level of jurisdiction. 2. Admissibility 25. The Court notes that the complaint of the second, third and fourth applicants in respect of the length of the criminal proceedings against them is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible. 3. Merits 26. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II.). 27. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see, among many others, Osmanov and Yuseinov v. Bulgaria, nos. 54178/00 and 59901/00, § 30, 23 September 2004 and Yankov and Manchev v. Bulgaira, cited above §§ 17-26). Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. In particular, the Court notes that the major source of delay in the present case was the lack of sufficient activity from September 1993 to January 2002 when the case was effectively dormant (see paragraph 8 above). 28. In view of the above and having regard to its case-law on the subject and the global length of the proceedings, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1 in respect of the second, third and fourth applicants. B. The fifth applicant 29. The Court notes that the fifth applicant, although seen by the police when transporting the stolen fruits on 24 August 1993 and considered as a suspect under police investigation no. 582/93, was not questioned in connection to the theft at that time and no criminal proceeding were opened against him until 2002. Thus, it is questionable whether he was aware of the investigation and how, if at all, he had been affected by the investigation between 1993 and 2002. He was questioned for the first time only on 29 January 2002 (see paragraph 11 above). On the same date criminal proceedings were opened against him and the rest of the applicants. 30. Therefore, the Court considers that the fifth applicant's situation was not “substantially affected” prior to 29 January 2002. Accordingly, in respect of this applicant the period to be taken into consideration started on 29 January 2002 and ended on 24 November 2004 (see paragraph 15 above). It thus lasted two years, nine months and twenty six days for a preliminary investigation and one level of jurisdiction. Under these circumstances, the Court finds that although there were delays in the proceedings, which could be attributed to the authorities, such as the remittal of the case for procedural breaches (see paragraph 12 above), the proceedings' global duration in respect of the fifth applicant was not in breach of the “reasonable time” requirement. 31. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 32. The second, third, fourth and fifth applicants further complained of the lack of an effective remedy in respect the excessive length of the proceedings against them. They relied on Article 13 of the Convention, which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 33. The Government did not comment. A. The second, third and fourth applicants 1. Admissibility 34. The Court notes that the complaint of the second, third and fourth applicants under Article 13 is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits 35. The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI). It notes that it has frequently found violations of Article 13 of the Convention in cases raising issues similar to the one in the present case (see, with further references, Myashev v. Bulgaria, no. 43428/02, §§ 22 and 23, 8 January 2009, and Yankov and Manchev, cited above, §§ 32-34). It sees no reason to reach a different conclusion in the present case. 36. There has therefore been a violation of Article 13 of the Convention. B. The fifth applicant 37. The Court reiterates that Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52). Having regard to the above conclusion that the fifth applicant's complaint under Article 6 § 1 of the Convention in respect of the length of the criminal proceedings is manifestly ill-founded, in the present case that applicant did not have an “arguable claim” as regards a violation of his right to a trial within a reasonable time. 38. It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 39. 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 40. The applicants claimed a total of 52,000 euros (EUR), EUR 13,000 per person, in respect of non-pecuniary damage. 41. The Government submitted that in case a violation is found, this would constitute a sufficient just satisfaction within the meaning of Article 41 of the Convention. 42. The Court observes that the second, third and fourth applicants must have sustained non-pecuniary damage. Ruling on an equitable basis and taking into account all the circumstances of the case, it awards under this head EUR 2,000 jointly to the second and third applicants and EUR 2,000 to the fourth applicant. B. Costs and expenses 43. The applicants also claimed EUR 3,150 in lawyer's fees for the proceedings before the Court, EUR 45 for postage and EUR 30 for office materials. In support of this claim the fourth and the fifth applicants presented an agreement with their lawyers and a time sheet for forty five hours at the hourly rate of EUR 70. The applicants requested that the amount awarded for costs and expenses under this head be paid directly to their lawyers, Mrs S. Stefanova and Mr A. Atanasov. 44. The Government contested these claims as excessive. 45. 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 were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 600, covering costs under all heads, payable directly into the bank account of the applicants' legal representatives. C. Default interest 46. 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 1. Decides to strike the application out of its list of cases under Article 37 § 1 (a) of the Convention, in so far as it has been brought by the first applicant Mr Hristo Yankov Yankov; 2. Declares the application inadmissible in respect of the fifth applicant Mr Manol Zlatanov Gogov; 3. Declares the complaints of the remaining applicants admissible; 4. Holds that in respect of the second, third and fourth applicants: a) there has been a violation of Article 6 § 1 of the Convention on account of the excessive length of the proceedings; b) there has been a violation of Article 13, in conjunction with Article 6 § 1 of the Convention, on account of the lack of an effective remedy for the excessive length of the proceedings; 5. Holds a) that the respondent State is to pay to the second, third and fourth applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement: (i) jointly to the second and third applicants, Mr Rangel Rangelov Yankov and Mrs Ginka Andonova Yankova, EUR 2,000 (two thousand euros) plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) to the fourth applicant, Mrs Zapryana Angelova Gogova, EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (iii) EUR 600 (six hundred euros), plus any tax that may be chargeable to the three applicants, in respect of costs and expenses, payable directly into the bank account of the applicants' legal representatives; (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; 6. Dismisses the remainder of the applicants' claim for just satisfaction. Done in English, and notified in writing on 23 September 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident

FIRST SECTION[1] CASE OF VRTAR v. CROATIA (Application no. 39380/13) JUDGMENT STRASBOURG 7 January 2016 FINAL 07/04/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Vrtar v. Croatia, The European Court of Human Rights (Former First Section), sitting as a Chamber composed of: Khanlar Hajiyev, President,Mirjana Lazarova Trajkovska,Julia Laffranque,Paulo Pinto de Albuquerque,Linos-Alexandre Sicilianos,Ksenija Turković,Dmitry Dedov, judges, and André Wampach, Deputy Section Registrar, Having deliberated in private on 1 December 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 39380/13) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Ms Marina Mamić on behalf of her underage daughter Tena Vrtar (“the applicant”), who are both Croatian nationals, on 30 April 2013. 2. The applicant was represented by Ms V. Šnur, an advocate practising in Vinkovci. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3. The applicant alleged that enforcement of the judgment ordering her father to pay for her maintenance had been unduly delayed, and that the remedy she had resorted to in that respect had turned out to be ineffective. 4. On 16 September 2013 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1998 and lives in Vinkovci. 6. By a judgment of 14 September 1999 the Vinkovci Municipal Court (Općinski sud u Vinkovcima) ordered the applicant’s father to pay for her maintenance. In particular, he was ordered to pay 500 Croatian kunas (HRK) per month in the period between 7 May and 14 September 1999, and 10% of his salary in the period after the latter date. A. Enforcement proceedings 1. Principal proceedings 7. On 15 January 2001 the applicant’s mother applied on behalf of her daughter to the Vinkovci Municipal Court for enforcement of that judgment. In particular, she sought payment of HRK 2,500 on account of unpaid outstanding monthly instalments of child maintenance together with the statutory default interest accrued as of 14 September 1999, and garnishment of 10% of the debtor’s salary from the issuance of the writ of execution. 8. By a decision of 23 January 2001 the Vinkovci Municipal Court declined its territorial jurisdiction in the matter and transferred the case to the Varaždin Municipal Court (Općinski sud u Varaždinu). 9. On 20 March 2001 the Varaždin Municipal Court invited the applicant’s mother to supplement the application for enforcement by enclosing the judgment sought to be enforced stamped with the certificate of enforceability, and the power-of-attorney authorising the applicant’s advocate to represent her in the proceedings. The applicant’s mother did so on 9 April 2001. 10. On 20 April 2001 the court invited the applicant’s mother to correct the application for enforcement by specifying outstanding monthly instalments of child maintenance that had not been paid by the debtor, and the statutory default interest accrued on each unpaid instalment. 11. On 7 May 2001 the applicant’s mother replied that in the application for enforcement she had sought payment of HRK 2,500 with the statutory default interest accrued from 14 September 1999 (see paragraph 7 above) and thus saw no reason why the application for enforcement had to be corrected. 12. On 3 February 2002 the applicant’s mother urged the court to speed up the proceedings and issue a writ of execution (rješenje o ovrsi). She indicated that the debtor was paying the child maintenance at his own discretion and convenience both in terms of amount and time, rather than in accordance with the judgment sought to be enforced. 13. On 18 February 2003 the Varaždin Municipal Court issued a writ of execution by garnishment of the debtor’s salary in the manner sought in the application for enforcement, and forwarded the writ to the debtor’s employer. The court also specified that the funds would be transferred to the applicant mother’s account once the writ became final. 14. On 3 March 2003 the debtor appealed against the writ. He claimed that he was regularly paying the child maintenance and submitted some documentary evidence in support of his claim. 15. On 17 March 2003 the applicant’s mother invited the court to forward the appeal to the second-instance court and suggested that the documents submitted by the debtor be forwarded to his employer with a view to deducting of what had been paid and paying her the difference. 16. On 25 November 2003 the Varaždin Municipal Court invited the applicant’s mother to specify to what extent the debtor had not complied with his obligation to pay child maintenance. The applicant’s mother did not reply. 17. On 19 May 2004 the debtor’s employee returned the writ of execution to the first-instance court informing it that the debtor had retired on 30 December 2003. 18. On 15 September 2005 the court held a hearing which the applicant’s representative did not attend. 19. On 11 December 2005, 20 November 2006 and 5 February and 31 May 2007 the court again invited the applicant’s mother to specify to what extent the debtor had not complied with his obligation to pay child maintenance (see paragraph 16 above). 20. On 14 June 2007 the applicant’s mother asked the court to carry out the writ of execution by garnishment of the debtor’s pension. She reiterated that in the period between 14 September 1999 and 11 June 2007 the debtor was not regularly paying the child maintenance. She also submitted that since payments had been rare and irregular she had not been able to keep the record and thus suggested to obtain payment slips from the debtor in order to determine how much of the child maintenance he had paid in that period. 21. On 4 September 2007 the court held a hearing which the applicant’s mother and representative did not attend. At the hearing the debtor was unable to prove all his payments because he was no longer in possession of all payment slips. On the same day the court invited the Croatian Postal Service to provide that information but it eventually informed the court that it could not provide the information requested. 22. On 26 September 2007 the court for the sixth time invited the applicant’s mother to specify to what extent the debtor had not complied with his obligation to pay child maintenance (see paragraphs 16 and 19 above). On 22 December 2007 the court reiterated its request. 23. On 30 January 2008 the applicant’s mother reiterated that the debtor was not regularly paying the child maintenance and that therefore she was unable to keep record of his payments and specify to what extent he had not complied with his obligation (see paragraph 20 above). She invited the court to simply order garnishment of 10% of the debtor’s pension with a view to securing payment of future instalments. 24. On 28 October 2008 the court invited the regional office of the Croatian Pension Fund to provide the information on the level of the debtor’s pension. On 5 November 2008 the Fund submitted the requested information. 25. On 4 November 2008 the applicant’s mother in a telephone conversation urged the court to deliver a decision and reiterated that she was unable to specify the unpaid instalments of maintenance (see paragraphs 20 and 23 above). 26. On 31 May 2010 the court invited the applicant’s mother to make submissions as regards further actions to be taken in the enforcement proceedings. 27. On 10 June 2010 the applicant’s mother informed the court that the debtor owed the total of HRK 15,000 on account of unpaid instalments of child maintenance and invited it to order garnishment of his pension in the amount of at least HRK 700 per month with a view to securing payment of future instalments. On 14 July 2010 the debtor replied that he was regularly paying the maintenance and thus owed nothing to the applicant. 28. On 31 July 2010 the court held a hearing which both parties attended. The applicant’s mother reiterated that the debtor owed HRK 15,000 on account of unpaid instalments of child maintenance but could not specify in respect of which period given that he was paying the maintenance only partially and irregularly (see paragraphs 20, 23, 25 and 27 above). The debtor replied that the documentary evidence he had submitted (see paragraph 14 above) suggested that he had thus far paid for the applicant’s maintenance HRK 53,739. At the end of the hearing the court yet again invited the applicant’s mother to specify the exact amount of the applicant’s claim and suggest further steps to be taken in the proceedings, within fifteen days otherwise the application for enforcement would be considered withdrawn. 29. On 13 September 2010 the applicant’s mother did so by stating that the debtor owed HRK 24,331. She again asked the court to order garnishment of 10% of his pension with a view to securing payment of future instalments (see paragraph 23 above). In his reply of 24 September 2010 the debtor again denied existence of any debt (see paragraph 27 above) but agreed to garnishment of 10% of his pension. 30. On 3 May 2011 the court again invited the applicant’s mother to propose further steps to be taken in the proceedings (see paragraphs 26 and 28 above). 31. On 26 May 2011 the applicant’s representative invited the court to obtain an expert opinion in order to determine the exact amount of the debt. 32. By a decision of 3 May 2012 the court decided on the debtor’s appeal of 3 March 2003 (see paragraph 14 above) so that it instructed him to institute separate civil proceedings to declare the enforcement inadmissible (in part or in full). That decision became final on 6 June 2012. As a result thereof, the writ of execution of 18 February 2003 (see paragraph 13 above) also became final on the same day. 33. On 11 July 2012 the court informed the Croatian Pension Fund that the writ of execution had become final and ordered it to commence garnishment of 10% of the debtor’s pension. 34. On 6 September 2012 the court invited the Croatian Pension Fund to inform it whether it had complied with the court’s order of 11 July 2012. 35. On 21 September 2012 the Croatian Pension Fund informed the court that it could not have complied with the order because 1/3 of the debtor’s pension – allegedly the maximum portion of one’s income that could be garnished under the law (see paragraphs 57-59 below) – was already being garnished pursuant to the writ of execution issued in the concurrent enforcement proceedings in which the applicant sought enforcement of another (newer) judgment ordering payment of child maintenance (see paragraphs 44-49 below). 36. The garnishment of 10% of the debtor’s pension pursuant to the writ of execution of 18 February 2003 (see paragraph 13 above) was therefore suspended until the other writ was carried out in full, that is, until 12 December 2013 (see paragraph 49 below). 37. On 1 January 2014 the Fund commenced garnishment of the debtor’s pension pursuant to the writ of execution of 18 February 2003. That writ was carried out in full on 12 November 2014 whereupon on 20 February 2015 the court issued a decision declaring that the enforcement was completed. 2. Proceedings following the applicant’s requests for protection of the right to a hearing within a reasonable time 38. Meanwhile, on 26 May 2011 the applicant’s mother on behalf of her daughter lodged a request for protection of the right to a hearing within a reasonable time (zahtjev za zaštitu prava na suđenje u razumnom roku) with the Varaždin County Court (Županijski sud u Varaždinu) complaining about the length of the above enforcement proceedings. 39. By a decision of 22 February 2012 the Varaždin County Court found a violation of the applicant’s right to a hearing within a reasonable time, awarded her 6,600 Croatian kunas (HRK) in compensation and ordered the Varaždin Municipal Court to complete the enforcement within six months of service of its decision. It held that the proceedings had not been complex, that there had been substantial periods of inactivity in the proceedings attributable to the first-instance court amounting altogether to five and a half years, and that a delay of more than one year and eight months had been attributable to the applicant who had failed to specify the amounts sought even though she had been repeatedly invited to do so (see paragraphs 16, 19, 22 and 28 above). 40. On 13 February 2012 the applicant appealed complaining about the amount of the compensation. 41. By a decision of 18 May 2012 the Supreme Court (Vrhovni sud Republike Hrvatske) increased the amount of compensation to HRK 8,100 having regard to the urgent character of the enforcement proceedings and to what was at stake for the applicant (payment of child maintenance). 42. On 20 September 2012 the applicant’s mother on behalf of her daughter lodged a constitutional complaint against the Supreme Court’s decision. 43. By a decision of 15 November 2012 the Constitutional Court (Ustavni sud Republike Hrvatske) declared inadmissible the applicant’s constitutional complaint and on 4 December 2012 served its decision on her representative. It held that the contested decision was not amenable to constitutional review in terms of section 62 of the Constitutional Court Act (see paragraph 52 below). B. Other relevant proceedings 44. In the meantime, on 12 May 2011 the applicant’s mother on behalf of her daughter instituted proceedings before the Varaždin Municipal Court against the applicant’s father with a view to increasing the level of child maintenance stipulated in the judgment of 14 September 1999 (see paragraph 6 above). 45. By a judgment of 21 September 2011 the court ruled for the applicant and ordered her father to pay HRK 800 per month for her maintenance as of 25 May 2011. The judgment became final on 9 February 2012 and enforceable on 12 March 2012. 46. On 15 April 2012 the applicant’s mother applied on behalf of her daughter to the same municipal court for enforcement of that judgment. 47. On 25 April 2012 that court issued a writ of execution by garnishment of the debtor’s pension, which became final on 30 May 2012. 48. On 13 July 2012 the court ordered the Croatian Pension Fund to commence garnishment of the debtor’s pension. 49. In the period between 17 July 2012 and 12 December 2013 the Fund was garnishing from the debtor’s pension the amounts corresponding to the regular monthly instalments of maintenance as they were becoming due, as well as the unpaid outstanding instalments. By the latter date all outstanding instalments of maintenance had been paid and the Fund has continued to garnish only the regular instalments as they became due. II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Constitution 50. The relevant Article of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette no. 56/90 with subsequent amendments) reads as follows: Article 29(1) “Everyone has the right that an independent and impartial court established by law decides fairly and within a reasonable time on their rights or obligations, or as regards suspicion or accusation of a criminal offence.” B. Relevant legislation 1. The Constitutional Court Act 51. The Constitutional Act on the Constitutional Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette of the Republic of Croatia no. 99/1999 with subsequent amendments – “the Constitutional Court Act”) is a constitutional act, that is, a legislation that is passed or amended in the same way as the Constitution, thus having the force of the Constitution. According to the Constitutional Court’s practice that court has no jurisdiction to review compliance of the substantive provisions of the Constitutional Court Act with the Constitution, but has jurisdiction to review compliance of other legislation with that Act (see, for example, decisions nos. U-I-699/2000 of 14 June 2000, U-I-778/2002 of 10 July 2002, U-I-3760/2007, U-I-3761/2007 and U-I-3762/2002 of 8 December 2010, U-I-1523/2011 of 12 August 2014, and U-I -453/2015 of 17 February 2015). 52. The relevant part of the Constitutional Court Act reads as follows: V. PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS Section 62 “(1) Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the decision of a State authority, local or regional government, or a legal person vested with public authority, on his or her rights or obligations, or as regards suspicion or accusation of a criminal offence, has violated his or her human rights or fundamental freedoms, or the right to local or regional government, guaranteed by the Constitution (‘constitutional rights’)... (2) If another legal remedy is available in respect of the violation of the constitutional rights [complained of], the constitutional complaint may be lodged only after this remedy has been exhausted. (3) In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law [revizija] is available, remedies shall be considered exhausted only after a decision on these legal remedies has been given.” Section 63 “(1) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted if the relevant court has failed to decide within a reasonable time on the rights or obligations of a party [to the proceedings] or as regards a suspicion or accusation of a criminal offence... (2) If it finds the constitutional complaint for failure to decide within a reasonable time referred to in paragraph 1 of this section well-founded, the Constitutional Court shall set a time-limit within which the relevant court must decide the case on the merits... (3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall award appropriate compensation to the complainant for the violation of his or her constitutional right ... to a hearing within a reasonable time. The compensation shall be paid from the State budget within three months of the date on which a request for payment is lodged.” 2. The Courts Act 53. Sections 27 and 28 of the Courts Act (Zakon o sudovima, Official Gazette no. 150/05 with subsequent amendments), which was in force between 29 December 2005 and 13 March 2013, provided for a request for protection of the right to a hearing within a reasonable time as a remedy for the excessive length of judicial proceedings. The original text of those two provisions read as follows: III. PROTECTION OF THE RIGHT TO A HEARING WITHINA REASONABLE TIME Section 27 “(1) A party to judicial proceedings who considers that the relevant court has failed to decide within a reasonable time on his or her rights or obligations or as regards a suspicion or accusation of a criminal offence may lodge a request for protection of the right to a hearing within a reasonable time with the immediately higher court. (2) If the request concerns proceedings pending before the High Commercial Court of the Republic of Croatia, the High Court for Administrative Offences of the Republic of Croatia or the Administrative Court of the Republic of Croatia, the request shall be decided by the Supreme Court of the Republic of Croatia. (3) The proceedings for deciding the request referred to in paragraph 1 of this section shall be urgent.” Section 28 “(1) If the court referred to in section 27 of this Act finds the request well-founded, it shall set a time-limit within which the court before which the proceedings are pending must decide on a right or obligation of, or on a suspicion or accusation of a criminal offence against, the person who lodged the request, and shall award him or her appropriate compensation for the violation of his or her right to a hearing within a reasonable time. (2) The compensation shall be paid from the State budget within three months of the date on which the party’s request for payment is lodged... (3) An appeal, to be lodged with the Supreme Court within fifteen days, lies against a decision on a request for the protection of the right to a hearing within a reasonable time. No appeal lies against the Supreme Court’s decision, but a constitutional complaint may be lodged.” 54. Section 28 of the Courts Act was amended by the 2009 Amendments to the Courts Act (Zakon o izmjenama i dopunama Zakona o sudovima, Official Gazette no. 153/09 – the 2009 Amendments), which entered into force on 29 December 2009. Apart from other changes in that section, those Amendments brought changes to its paragraph 3, which became paragraph 5. In particular, in that paragraph a possibility to lodge an appeal against the first-instance decision of the Supreme Court to a three-member panel of the same court was introduced, whereas the reference to the possibility of lodging a constitutional complaint against such decision was omitted. The text of paragraph 5 of section 28, as amended by 2009 Amendments, read as follows: Section 28 “(5) An appeal, to be lodged with the Supreme Court within fifteen days, lies against a decision on a request for protection of the right to a hearing within a reasonable time. Against the Supreme Court’s decision an appeal may be lodged with the [three-member] panel of the Supreme Court.” 55. Paragraph 5 of section 28 of the Courts Act was further amended by the 2010 Amendments to the Courts Act (Zakon o izmjenama i dopunama Zakona o sudovima, Official Gazette no. 116/10 – the 2010 Amendments), which entered into force on 21 October 2010, to read as follows: Section 28 “(5) An appeal, to be lodged with the Supreme Court within fifteen days, lies against a first-instance decision on a request for protection of the right to a hearing within a reasonable time. The appeal shall be decided by the [three-member] panel [of that court].” 56. Relevant materials from the legislative process, such as the Final Draft Amendments of 3 December 2009 to the Courts Act (Konačni prijedlog zakona o izmjenama i dopunama Zakona o sudovima) with the explanatory report, and the record of the debate at the Parliamentary session on which the 2009 Amendments (see Reports of the Croatian Parliament [Izvješća Hrvatskog sabora – IHS] no. 520 of 12 April 2010, pp. 22-23) were adopted, do not contain any indication as to the rationale behind the changes made to what used to be paragraph 3 and became paragraph 5 of section 28 of the Courts Act. 3. Enforcement legislation 57. Section 149 of the Enforcement Act of 1996 (Official Gazette no. 57/96 with subsequent amendments), which provision was in force in the period between 11 August 1996 and 16 June 2008, provided that a maximum of one third of salary or pension could be garnished in the enforcement proceedings except where enforcement concerned statutory maintenance or certain other privileged claims in the execution of which a maximum of half of salary or pension could be garnished. 58. The same provision, as amended by the 2008 Amendments to the 1996 Enforcement Act (Official Gazette no. 67/08), which was in force in the period between 17 June 2008 and 31 December 2010, provided that enforcement by garnishment of salary or pension was limited to the amount corresponding to one third of the average net salary in Croatia in the previous year, unless enforcement concerned statutory maintenance claims or certain other privileged claims in the execution of which garnishment of the amount corresponding to a half of the average net salary was allowed. However, if the enforcement concerned child maintenance it was allowed to garnish the amount corresponding to 3/4 of the average net salary. If the debtor’s net salary or pension was below the average net salary in Croatia in the previous year, garnishment was limited to one third or, in case of enforcement of statutory maintenance claims or other privileged claims, to a half of the debtor’s net salary or pension. 59. Section 92 of the Enforcement Act of 2010 (Official Gazette no. 139/10 with subsequent amendments), which provision was in force in the period between 1 January 2011 and 14 October 2012, was identical to section 149 of the 1996 Enforcement Act, as amended by the 2008 Amendments. 60. The Enforcement Act of 2012 (Official Gazette no. 112/12 with subsequent amendments), which has been in force since 15 October 2012, in its section 369(1) provides that ongoing enforcement proceedings were to be concluded under the previous enforcement legislation. C. Relevant practice 61. The practice of the Constitutional Court prior to the entry into force of the 2009 Amendments suggests that, when examining constitutional complaints lodged against the Supreme Court’s decisions in the proceedings following a request for the protection of the right to a hearing within a reasonable time (hereafter “length-of-proceedings decisions”), the Constitutional Court based its jurisdiction to do so exclusively on section 62 of the Constitutional Court Act (see paragraph 52 above) and not on section 28(3) of the Courts Act (see paragraph 53 above). 62. On 2 March 2010 the Constitutional Court issued a decision no. U‑IIIVs-3669/2006 and others, whereby it decided that after the entry into force of the 2009 Amendments to the Courts Act all constitutional complaints lodged against the Supreme Court’s length-of-proceedings decisions were to be treated as appeals within the meaning of the amended section 28(5) of the Courts Act and transferred to the three-member panel of the Supreme Court. In that decision the Constitutional Court also clarified its jurisdiction as regards constitutional complaints concerning the length of proceedings lodged under sections 62 and 63 of the Constitutional Court Act after coming into force of the 2009 Amendments. The Constitutional Court’s decision was published in the Official Gazette no. 34/10 of 19 March 2010. The relevant part of that decision reads as follows: DECISION “I. By the entry into force of [the 2009 Amendments to the Courts Act], a constitutional complaint [lodged] against a decision rendered in the proceedings for protection of the right to a hearing within a reasonable time is to be regarded as an appeal to the Supreme Court within the meaning of [the amended section 28(5) of the Courts Act]. II. The cases pending before the Constitutional Court [following constitutional complaints referred to in point I. of the operative provisions] shall be transferred to the relevant panel of the Supreme Court within the meaning of [the amended section 28(5) of the Courts Act]. III. This decision shall be published in the Official Gazette. R e a s o n s 2. On 29 December 2009 [the 2009 Amendments to the Courts Act] entered into force ... amending what used to be paragraph 3 of section 28 of the Courts Act, which provided: ‘No appeal lies against the Supreme Court’s decision, but a constitutional complaint may be lodged’. Instead of that remedy, [the 2009 Amendments] introduced new remedy against the Supreme Court’s decision: an appeal to the three-member panel of the Supreme Court... 3. Appeal to the three-member panel of the Supreme Court against the decision of the Supreme Court whereby that court decided on an appeal against the decision of the lower court on a request for protection of the right to a hearing within a reasonable time, is new legal remedy which introduces another level of jurisdiction in the institutional protection of the said right. In other words, those proceedings are now conducted before at least two levels of jurisdiction before ordinary and specialised courts in Croatia, where the three-member panel of the Supreme Court is deciding on the protection of that right as the court of last instance. 3.1. The Constitutional Court finds that [the 2009 Amendments], which introduce at least two instances of judicial protection before ordinary and specialised courts, ensure effective legal protection of the right to a hearing within a reasonable time. Therefore, the Constitutional Court holds that from the entry into force of [the 2009 Amendments] the protection of the right to a hearing within a reasonable time before the Constitutional Court, guaranteed by Article 29 of the [Croatian] Constitution, is ensured in regular proceedings [before the Constitutional Court] instituted by a constitutional complaint [lodged] under section 62 of the Constitutional Court Act against a decision ... on the merits on rights or obligations, or as regards suspicion or accusation of a criminal offence, which [constitutional complaint] may be lodged only after exhausting other available avenues of redress [i.e. other available remedies]. 3.2. [The 2009 Amendments] do not contain a transitional provision prescribing how to deal with cases lodged with the Constitutional Court before and after 29 December 2009 (the so-called pending cases). The Constitutional Court therefore holds that as of 29 December, [being] the day of entry into force of [the 2009 Amendments], each constitutional complaint lodged against the Supreme Court’s decision rendered in the application of sections 27 and 28 of the Courts Act has to be regarded as an appeal addressed to the panel of the Supreme Court within the meaning of [the amended section 28(5) of the Courts Act]. By this decision the Constitutional Court transfers all [such] pending cases ... to the relevant panel of the Supreme Court. 3.3. Given the above-described changes in legislation, the Constitutional Court finds it necessary to remind of its jurisdiction under section 63 of the Constitutional Court Act. Under [that section] the Constitutional Court still has jurisdiction to decide on a violation of the constitutional right to a hearing within a reasonable time in cases where the Supreme Court, before which the [principal] proceedings concerning the parties’ rights or obligations are pending, has not decided on a remedy by a party within a reasonable time. 4. In the light of the foregoing ... it was decided as indicated in points I. and II. of the operative provisions.” 63. In their observations in cases nos. 56929/13, 63556/13, 65559/13 and 61691/13 currently pending before the Court, which raise similar issues as the present one, the Government furnished 17 decisions of the Constitutional Court adopted in the period between 23 March 2010 and 20 February 2014 whereby that court had declared inadmissible constitutional complaints lodged against the Supreme Court’s length-of-proceedings decisions because such decisions of the Supreme Court were not amenable to constitutional review by individual constitutional complaints. None of those 17 decisions of the Constitutional Court was published in the Official Gazette, and only one of them is available on the website of the Constitutional Court (decision no. U-III-5558/2013 of 9 December 2013). Furthermore, not a single one of those 17 decisions refers to the Constitutional Court’s decision of 2 March 2010, to which the Government relies in the present case as the decision establishing such practice (see paragraphs 62 above and 69 below). D. Other relevant documents 64. On 8 July 2014 the Constitutional Court published on its website a list of decisions of various domestic authorities which are not liable to be reviewed by individual constitutional complaints (Popis pojedinačnih akata koji se ne smatraju aktima iz članka 62. stavka 1. Ustavnog zakona o Ustavnom sudu Republike Hrvatske). The document lists the Supreme Court’s length-of-proceedings decisions as decisions not amenable to constitutional review by individual constitutional complaints, and as evidence of that being established practice refers to the Constitutional Court’s decisions nos. U-III-3913/2010, U-III-1691/2012 and U‑III‑268/2014. None of the Constitutional Court’s decisions the document refers to was published in the Official Gazette, nor is their text available on the website of the Constitutional Court. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 65. The applicant complained that the delays in the enforcement proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 66. The Government contested that argument. 67. The period to be taken into consideration began on 15 January 2001, when the applicant’s mother applied for enforcement on behalf of her daughter (see paragraph 7 above) and ended on 12 November 2014 when the enforcement was de facto completed (see paragraph 37 above). It thus lasted thirteen years and ten months. A. Admissibility 68. The Government disputed the admissibility of this complaint on three grounds. In particular, they argued that the applicant had failed to observe the six-month rule, that she could no longer claim to be a victim of the violation complained of, and that she had abused the right of application. 1. Compliance with the six-month rule (a) The submissions of the parties 69. The Government submitted that the applicant had failed to comply with the six-month rule because she had erroneously believed that the constitutional complaint she had lodged against the Supreme Court’s decision of 18 May 2012 (see paragraphs 41-42 above) had been an effective remedy to be exhausted for the purposes of Article 35 § 1 of the Convention and thus capable of interrupting the running of the six-month time-limit prescribed in that Article. They explained that after the entry into force of the 2009 Amendments to the Courts Act (see paragraph 54 above) a constitutional complaint could no longer be lodged against the Supreme Court’s length-of-proceedings decisions (see paragraphs 62-64 above). According to the Government, the Constitutional Court had adopted that view already in its decision no. U-IIIVs-3669/2006 of 2 March 2010, which was published in the Official Gazette on 19 March 2010 (see paragraph 62 above). The applicant’s advocate should have been aware of that. Consequently, the final decision within the meaning of Article 35 § 1 of the Convention, for the purposes of calculating the six-month time limit in the applicant’s case, was not the Constitutional Court’s decision of 15 November 2012 (see paragraph 43 above) but the Supreme Court’s decision of 18 May 2012 (see paragraph 41 above). However, her application to the Court had been lodged on 30 April 2013 (see paragraph 1 above), that is, more than six-months later. 70. The applicant contested the Government’s arguments by arguing that the Constitutional Court’s decision of 15 November 2012 (see paragraph 43 above) was the final (domestic) decision within the meaning of Article 35 § 1 of the Convention. The applicant’s representative had received it on 4 December 2012 whereupon, within the period of six months, namely on 30 April 2013, she had lodged the application with the Court (see paragraphs 1 and 41 above). (b) The Court’s assessment 71. The Court notes that the issue to be examined is whether the applicant’s constitutional complaint against the Supreme Court’s decision of 18 May 2012 (see paragraphs 41-42 above) was, in the particular circumstances of the instant case, a remedy to be exhausted for the purposes of Article 35 § 1 of the Convention and, consequently, whether the Constitutional Court’s decision of 15 November 2012 (see paragraph 43 above) declaring that complaint inadmissible was the decision from which the six-month time-limit should be calculated. 72. In this connection the Court first reiterates that before lodging applications with the Court against Croatia, applicants are in principle required, in order to exhaust domestic remedies and comply with the principle of subsidiarity, to lodge a constitutional complaint and thereby afford the Croatian Constitutional Court a possibility of remedying their situation (see Orlić v. Croatia, no. 48833/07, § 46, 21 June 2011). 73. It further notes that under section 62 of the Constitutional Court Act anyone who considers that his or her rights guaranteed by the Constitution were infringed by a decision passed by a State or public authority in determination of any of his rights or obligations may lodge a constitutional complaint against such decision (see paragraph 52 above). Since the right to a hearing within a reasonable time is a right guaranteed by the Constitution (see paragraph 50 above) and decisions adopted in the context of the proceedings instituted by requests under section 27 of the Courts Act (length-of-proceedings decisions) necessarily entail determination of that right, it would appear that those dissatisfied by such decisions are entitled to lodge constitutional complaints against them relying on section 62 of the Constitutional Court Act, regardless of whether or not that possibility was referred to also in section 28 of the Courts Act (compare the text of what used to be paragraph 3 of section 28 of the Courts Act before the entry into force of 2009 Amendments and the amended text of what became paragraph 5 of the same section, in paragraphs 53-54 above). This was the position of the Constitutional Court before the entry into force of the 2009 Amendments. In particular, in its practice developed in that period that court relied exclusively on section 62 of the Constitutional Court Act (and not on section 28(3) of the Courts Act) as a legal basis for its jurisdiction to examine individual constitutional complaints against the Supreme Court’s length-of-proceedings decisions (see paragraph 61 above). 74. However, in view of the Government’s arguments (see paragraph 69 above), the issue arises whether when the (new) practice of the Constitutional Court suggests that certain decisions are not (, or are no longer) amenable to constitutional review, the Court would be ready to take that (new) practice into account. 75. The Court has already had an opportunity to address that issue in a number of cases against Croatia, and each time rejected a similar inadmissibility objection raised by the Government (see, for example, Pavlović and Others v. Croatia, no. 13274/11, §§ 30-38, 2 April 2015 as regards decisions on costs of proceedings, and Šimecki v. Croatia, no. 15253/10, §§ 28-33, 30 April 2014 as regards certain decisions adopted in enforcement proceedings). It held, in particular, without intending to question the power of the Constitutional Court to interpret the criteria for admissibility of constitutional complaints and the resultant practice that certain decision are not amenable to constitutional review, that the applicants who had lodged their constitutional complaints had acted neither unreasonably nor contrary to the wording of section 62 of the Constitutional Court Act (see Pavlović and Others, §§ 34 and 36, and Šimecki, § 33). The Court sees no reason to hold otherwise in the present case. 76. It could only add that a constitutional complaint is, having regard to its characteristics, a remedy clearly capable of addressing the relevant Convention issue and redressing the violation complained of. To hold that such remedy should not have been exhausted just because at the time the Constitutional Court’s practice suggested that the decision being contested was not amenable to constitutional review would not only ignore the fact that such practice may evolve (see Pavlović and Others, § 36). More importantly, it would remove any incentive for such evolution as the applicants would systematically address their complaints to the Court without giving a chance to the Constitutional Court to change its practice. That would be contrary to the principle of subsidiarity. 77. The foregoing considerations would normally suffice for the Court to dismiss the Government’s inadmissibility objection based on non-compliance with the six-month rule. However, the Court would have, in the particular circumstances of the present case, reached the same conclusion even if it were to accept that the change in the Constitutional Court’s practice could have implications for the application of the rule on exhaustion of domestic remedies and, consequently, the six-month rule. That is so for the following reasons. 78. The Court notes that it is by now evident that at a certain point the Constitutional Court established a practice that after the entry into force of the 2009 Amendments to the Courts Act (see paragraph 54 above) a constitutional complaint could no longer be lodged against any Supreme Court’s length-of-proceedings decision. In particular, the Constitutional Court held that after those Amendments came into force, such decisions were no longer amenable to constitutional review under section 62 of the Constitutional Court Act by means of individual constitutional complaint (see paragraphs 52 and 63-64 above). 79. However, the Court reiterates that the issue whether domestic remedies have been exhausted is normally determined by reference to the date when the application was lodged with the Court (see Baumann v. France, no. 33592/96, § 47, ECHR 2001‑V (extracts)). Therefore, the question to be answered is whether the applicant should, with the proper legal assistance, have been aware of the above practice of the Constitutional Court at the time she lodged the application with the Court. The Government claimed that she could as that practice had been formulated for the first time already in the Constitutional Court’s decision no. U-IIIVs-3669/2006 of 2 March 2010, published in the Official Gazette on 19 March 2010 (see paragraphs 62 and 69 above). That was more than three years before the application to the Court (see paragraph 1 above). 80. The Court is not persuaded by this argument. Firstly, that decision is not referred to in any of the 17 decisions the Government submitted in support of the same argument in cases similar to the present one (see paragraph 63 above). Besides, none of those 17 decisions, except one dating from the period after the applicant lodged the constitutional complaint in the present case, was published. Secondly, the Court finds it indicative that the list of non-reviewable decisions published by the Constitutional Court on its website on 8 July 2014 does not mention the decision of 2 March 2010 as evidence of established practice that the Supreme Court’s length-of-proceedings decisions are not amenable to constitutional review (see paragraph 64 above). 81. That is understandable because the decision cited by the Government only suggests that after coming into force of the 2009 Amendments: (a) all constitutional complaints lodged against the first-instance length-of-proceedings decisions of the Supreme Court are to be regarded as appeals to the three-member panel of the same court and transferred to that court, (b) parties who wish to complain about the length of civil, criminal or administrative-dispute proceedings that have already ended may lodge a constitutional complaint under section 62 of the Constitutional Court Act (see paragraph 52 above), and (c) parties who wish to complain about the length of civil or criminal proceedings pending before the Supreme Court may lodge a constitutional complaint under section 63 of the Constitutional Court Act (see paragraph 52 above). 82. That decision therefore does not address, either explicitly or implicitly, the issue of availability of constitutional complaint after coming into force of the 2009 Amendments against second-instance decisions of the Supreme Court adopted in the proceedings for protection of the right to a hearing within a reasonable time. At best, the text of the Constitutional Court’s decision in question is ambiguous in that respect. In that regard the Court reiterates that an applicant must exhaust those domestic remedies which are likely to be effective (see, for example, Şerife Yiğit v. Turkey [GC], no. 3976/05, § 50, 2 November 2010) and that the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress (see, for example, Vučković and Others v. Serbia [GC], no. 17153/11, §§ 74 and 84, 25 March 2014). 83. To the extent that it may be argued that the applicant should have realised that after the entry into force of the 2009 Amendments a constitutional complaint could no longer be lodged against the Supreme Court’s length-of-proceedings decisions because those amendments omitted the reference to the possibility of lodging such constitutional complaints – a rather common legislative technique to indicate that a provision is no longer applicable – the Court considers that accepting such argument would mean to disregard an important fact. In particular, it should be noted that in the Croatian legal system the Constitutional Court Act, in terms of the hierarchy of laws, has the force of the Constitution, which means that its provisions (including section 62 thereof) cannot be repealed, much less derogated by any legislation. In such circumstances, omitting the reference to the possibility of lodging a constitutional complaint in a legislative act as long as that avenue of redress remains available under the Constitutional Court Act cannot be construed as to mean that the remedy in question is no longer available. 84. As the Government did not submit, nor is the Court itself aware of any publicly-available decision or document clearly indicating that lodging a constitutional complaint against second-instance length-of-proceedings decisions of the Supreme Court was inadmissible at the time the present application was lodged with the Court, the applicant cannot be blamed for lodging the constitutional complaint of 20 September 2012 (see paragraph 42 above). In other words, at the time she had sufficient reasons to believe that a constitutional complaint was a remedy to be exhausted in order to comply with the requirements of Article 35 § 1 of the Convention and thus capable of interrupting the running of the six-month period. 85. In the light of the foregoing, it cannot be said that by lodging the constitutional complaint the applicant pursued unnecessary remedy which rendered her subsequent application to the Court belated. The Government’s objection regarding non-compliance with the six-month rule must therefore be rejected. 2. Abuse of the right of application 86. The Government argued that the applicant had abused the right of application in that her representative had not informed the Court of the important fact that on 6 June 2012 (see paragraph 32 above) a final decision had been adopted in the enforcement proceedings complained of, which proceedings had thereby ended. 87. The applicant replied that she had not abused the right of application. She argued that even though the writ of execution of 18 February 2003 had become final on 6 June 2012 (see paragraphs 32 above) the judgment of 14 September 1999 had remained unenforced until 12 November 2014 (see paragraph 37 above). 88. The Court observes that the judgment the applicant was seeking to enforce indeed remained unenforced until 12 November 2014 (see paragraphs 37 and 67 above). In such circumstances, the fact that the decision of 6 June 2012 had been adopted is not of such importance that its non-communication to the Court, though regrettable, could be regarded as an abuse of the right of application. The present case therefore cannot be compared to the case of Kerechashvili v. Georgia ((dec.), no. 5667/02, 2 May 2006) where the applicant complained of non-enforcement of a judgment in his favour but concealed the fact that the judgment in question had been enforced in part more than a year before he had lodged his application, and in full before it had been communicated to the respondent Government. It follows that the Government’s objection concerning the alleged abuse of the right of application must also be rejected. 3. The applicant’s victim status (a) The submissions of the parties 89. The Government submitted that the Varaždin County Court had allowed the applicant’s request, found a violation of her right to a hearing within reasonable time and that the Supreme Court had awarded her appropriate compensation (see paragraphs 39 and 41 above). The violation complained of had, therefore, been remedied at the domestic level and, as a result, the applicant had lost her victim status. 90. The applicant argued that she could still claim to be a victim of the said violation because the compensation she had been awarded was too low and the enforcement court had not complied with the County Court’s order to complete the enforcement within six-months. (b) The Court’s assessment 91. The Court first notes that at the time of the Varaždin County Court’s decision of 22 February 2012 on the applicant’s request (see paragraphs 7, 39 and 67 above), the enforcement proceedings had been pending for some eleven years and eleven months. The same period was taken into account by the Supreme Court in its decision of 18 May 2012 (see paragraph 41 above). It further notes that the Varaždin County Court and the Supreme Court awarded the applicant the equivalent of approximately 1,070 euros (EUR) (see paragraphs 39 and 41 above). The compensation awarded by those courts does not correspond to what the Court would have been likely to award under Article 41 of the Convention in respect of the same period, nor can it otherwise be regarded as adequate in the circumstances of the case (see the principles established under the Court’s case-law in Cocchiarella v. Italy [GC], no. 64886/01, §§ 65-107, ECHR 2006-V, or Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 178-213, ECHR 2006-V). 92. In particular, the Court notes that even though the enforcement court had repeatedly invited the applicant’s mother to specify the judgment debt (see paragraphs 16, 19, 22 and 28 above), it eventually ordered garnishment of the debtor’s pension in the amount she had initially sought in the application for enforcement and instructed the debtor to institute separate civil proceedings thereby effectively transferring on him the onus of proving to what extent he had complied with his obligation (see paragraphs 7, 13 and 32-33 above). The Court is therefore unable to agree with the domestic courts’ assessment that a delay of more than one year and eight months had been attributable to the applicant because she had failed to specify the judgment debt (see paragraph 39 above). 93. Having regard to the above, the Court considers that, in respect of the period covered by the domestic courts’ finding (see paragraph 91 above) the applicant has not lost her victim status within the meaning of Article 34 of the Convention. It follows that the Government’s objection concerning the applicant’s victim status has to be rejected. 4. Conclusion as regards admissibility 94. The Court further notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 95. The Court reiterates its settled case-law to the effect that Article 6 § 1 of the Convention, inter alia, protects the implementation of final, binding judicial decisions, which, in States that accept the rule of law, cannot remain inoperative to the detriment of one party. Accordingly, the execution of a judicial decision cannot be prevented, invalidated or unduly delayed (see, among other authorities, Hornsby v. Greece, judgment of 19 March 1997, Reports 1997-II, pp. 510-11, § 40; Burdov v. Russia, no. 59498/00, § 34, ECHR 2002-III; and Jasiūnienė v. Lithuania, no. 41510/98, § 27, 6 March 2003). The State has an obligation to organise a system of enforcement of judgments that is effective both in law and in practice (see Fuklev v. Ukraine, no. 71186/01, § 84, 7 June 2005). 96. Further, the Court notes that, irrespective of whether enforcement is to be carried out against a private or State actor, it is up to the State to take all necessary steps, within its competence, to execute a final court judgment and, in so doing, to ensure the effective participation of its entire apparatus, failing which it will fall short of the requirements contained in Article 6 § 1 (see Felbab v. Serbia, no. 14011/07, § 62, 14 April 2009). However, a failure to enforce a judgment because of the debtor’s indigence cannot be held against the State unless and to the extent that it is imputable to the domestic authorities, for example, to their errors or delay in proceeding with the enforcement (see, mutatis mutandis, Omasta v. Slovakia (dec.), no. 40221/98, 10 December 2002). 97. Lastly, the Court reiterates that enforcement proceedings by their very nature need to be dealt with expeditiously (see Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 23, ECHR 2000-IV). 98. To decide if the delay in the enforcement was reasonable, the Court will look at the complexity of the enforcement proceedings, how the applicant and the authorities behaved, and the nature of the award (see Raylyan v. Russia, no. 22000/03, § 31, 15 February 2007). 99. Turning to the present case, the Court notes that the Varaždin County Court and the Supreme Court found that the proceedings had lasted unreasonably long (see paragraphs 39 and 41 above). The Court sees no reason to hold otherwise as it has itself frequently found violations of Article 6 § 1 of the Convention in cases raising similar issues as the present one (see, a fortiori, Boucke v. Montenegro, no. 26945/06, 21 February 2012, and Shapovalova v. Russia, no. 2047/03, 5 October 2006). Therefore, already in the period which was subject to the scrutiny of the County Court and the Supreme Court (see paragraph 91 above) the delay in the enforcement was excessive and failed to meet the “reasonable time” requirement. 100. In the Court’s view it retained that character throughout the subsequent period of two years and eight months after the delivery of the County Court’s decision on 22 February 2012 because the judgment of 14 September 1999 remained unenforced until 12 November 2014 (see paragraphs 32-37 above) for reasons which do not appear justified. In particular, the Court notes that on 11 July 2012 the enforcement court had informed the Croatian Pension Fund that the writ of execution of 18 February 2003 had become final and ordered it to commence garnishment of 10% of the debtor’s pension to which, on 21 September 2012, the Fund replied that it could not do so because 1/3, that is, allegedly, the statutory maximum, of the debtor’s pension was already being garnished pursuant to another writ of execution obtained by the applicant (see paragraphs 33-35 above). However, the Court notes that the relevant enforcement legislation in force at the time allowed for garnishment of more than 1/3 of one’s income if the claim sought to be enforced concerned statutory (child) maintenance (see paragraphs 57-59 above). Therefore, it would appear that by garnishing a larger portion of the debtor’s pension the enforcement could have been completed earlier than 12 November 2014. 101. In the light of the foregoing, the Court considers that there has been a breach of Article 6 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 102. The applicant also complained that the remedy she had resorted to in order to complain about the length of the enforcement proceedings had proved ineffective as the Varaždin Municipal Court had not complied with the Varaždin County Court’s order of 22 February 2012 to complete the enforcement within six months (see paragraphs 37 and 39 above). She relied on Article 13 of the Convention, which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 103. The Government contested that argument. A. Admissibility 104. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. B. Merits 1. The submissions of the parties 105. The Government reiterated its above argument that on 6 June 2012 a final decision had been adopted in the enforcement proceedings complained of, which proceedings had thereby ended (see paragraphs 32 and 86 above). Therefore, the Varaždin Municipal Court had complied with the Varaždin County Court’s order of 22 February 2012 and had completed the enforcement in less than six months. 106. The applicant reiterated her argument that even though the writ of execution of 18 February 2003 had become final on 6 June 2012 the enforcement had not been completed because the judgment of 14 September 1999 had been enforced as late as on 12 November 2014 (see paragraphs 37 and 87 above). Thus, it could not be argued that the Varaždin Municipal Court had complied with the Varaždin County Court’s order of 22 February 2012 to complete the enforcement within six months. 2. The Court’s assessment 107. The Court reiterates that the enforcement was completed only on 12 November 2014 (see paragraphs 37 and 67 above). It follows that the Varaždin Municipal Court did not comply with the Varaždin County Court’s order of 22 February 2012 to complete the enforcement within six months (see paragraph 39 above). It also reiterates that the applicant did not receive adequate satisfaction for the excessive length of the enforcement proceedings in question (see paragraph 91 above). 108. In these circumstances it cannot be argued that that the request for protection of the right to a hearing within a reasonable time the applicant resorted to was an effective remedy for the length of those enforcement proceedings. The combination of these two factors in the particular circumstances of the present case rendered an otherwise effective remedy ineffective (see, mutatis mutandis, Kaić and Others v. Croatia, no. 22014/04, § 43, 17 July 2008). 109. This conclusion, however, does not call into question that in the period between 29 December 2005 and 13 March 2013 (see paragraph 53 above) a request for protection of the right to a hearing within a reasonable time was an effective remedy in terms of Article 13 of the Convention for the length of ongoing judicial proceedings in Croatia (see Pavić v. Croatia, no. 21846/08, § 36, 28 January 2010). 110. There has accordingly been a breach of Article 13 of the Convention in the present case. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 111. 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 112. The applicant claimed 5,000 euros (EUR) in respect of pecuniary damage and EUR 4,000 in respect of non-pecuniary damage. 113. The Government contested these claims. 114. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. 115. As regards non-pecuniary damage, the Court reiterates that where an applicant had resorted to an available domestic remedy and thereby obtained a finding of a violation and was awarded compensation, but can nevertheless still claim to be a “victim”, the amount to be awarded under Article 41 may be less than the amounts the Court was awarding in similar cases. In that case an applicant must be awarded the difference between the amount obtained from the domestic courts and an amount that would not have been regarded as manifestly unreasonable compared with the amounts awarded by the Court. An applicant should also be awarded an amount in respect of stages of the proceedings that may not have been taken into account by the domestic courts (see, mutatis mutandis, Cocchiarella, cited above, §§ 139-141, ECHR 2006‑V; Jakupović v. Croatia, no. 12419/04, § 33, 31 July 2007; Skokandić v. Croatia, no. 43714/02, § 59, 31 July 2007; Husić v. Croatia, no. 14878/04, § 31, 25 October 2007; and Letica v. Croatia, no. 27846/05, § 34, 18 October 2007). 116. The Court reiterates that the applicant was awarded EUR 1,070 by the domestic courts (see paragraph 91 above). Having regard to the circumstances of the present case, the characteristics of the request for protection of the right to a hearing within a reasonable time, as well as the fact that, notwithstanding this domestic remedy, the Court has found a violation, it considers, ruling on an equitable basis, that the applicant should be awarded EUR 4,000, that is, the sum sought, in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. B. Costs and expenses 117. The applicant also claimed EUR 2,400 for the costs and expenses incurred before the domestic courts and for those incurred before the Court. 118. The Government contested the claim. 119. 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 considers it reasonable to award the sum of EUR 1,020 for costs and expenses in the domestic proceedings and EUR 850 for the proceedings before the Court, plus any tax that may be chargeable to the applicant on those amounts. C. Default interest 120. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 13 of the Convention; 4. 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, the following amounts, to be converted into Croatian kunas at the rate applicable at the date of settlement: (i) EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,870 (one thousand eight hundred and seventy euros), plus any tax that may be chargeable to the applicant, 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 applicant’s claim for just satisfaction. Done in English, and notified in writing on 7 January 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. André WampachKhanlar HajiyevDeputy RegistrarPresident [1] In its composition before 1 November 2015.

FIRST SECTION CASE OF SCHWIZGEBEL v. SWITZERLAND (Application no. 25762/07) JUDGMENT [Extracts] STRASBOURG 10 June 2010 FINAL 10/09/2010 This judgment has become final under Article 44 § 2 of the Convention. In the case of Schwizgebel v. Switzerland, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Khanlar Hajiyev,Dean Spielmann,Sverre Erik Jebens,Giorgio Malinverni,George Nicolaou, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 20 May 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 25762/07) against the Swiss Confederation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Swiss national, Ms Ariane Schwizgebel (“the applicant”), on 15 June 2007. The applicant was represented by Ms C. Nebel, a lawyer practising in Geneva. The Swiss Government (“the Government”) were represented by their Agent, Mr F. Schürmann, Head of Human Rights and Council of Europe section, Federal Office of Justice. 2. The applicant alleged, in particular, that the Swiss authorities had debarred her from adopting a second child on account of her age. 3. On 17 February 2009 the Court decided to communicate the application to the Government. It also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3 of the Convention). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born on 29 July 1957 and lives in Geneva. She is single and has a Master’s degree in music. Music constitutes her source of income. 5. According to the applicant, when she was about 30, a man with whom she had been in a relationship for some ten years died in an accident. Since then she had not wished to start a family with anyone else. However, driven by the desire to bring up children, she decided, after much thought, to adopt a first child. 6. On 16 April 1996 she sought authorisation from the Child Protection Department for the Canton of Geneva to receive a child with a view to adoption. 7. The applicant explained that, having been informed that she would probably receive a negative response on account of her marital status, she withdrew her application on 4 October 1996. 8. After settling in Delémont (Canton of Jura), in 1998 she submitted a new application for authorisation to receive a child, and it was granted on the basis of the favourable opinion issued by the Welfare Department. 9. On 8 January 2000 she received a little girl, Violaine, born in Vietnam on 30 April 1999. 10. On the basis of a home study report of 12 December 2001, which recommended the child’s adoption, the supervisory authority of Delémont granted the adoption on 26 June 2002. 11. On 9 July 2002 the applicant sought authorisation to receive a second child with a view to adoption. 12. The Social Action Department of the Republic and Canton of Jura rejected that application by a decision of 5 September 2002, which was confirmed on appeal on 7 November 2002. 13. The Administrative Division of the Jura Cantonal Court upheld that refusal on 25 August 2003. 14. On 19 January 2004 the applicant – who had moved back to Geneva in 2003 – again sought authorisation to receive a second child with a view to adoption: a child from South America between one and three years old. 15. In a decision of 19 July 2004, the Child Protection Department rejected her application. 16. The applicant appealed against that decision but her appeal was declared out of time – and therefore inadmissible – on 28 September 2004 by the Court of Justice of the Canton of Geneva. 17. On 20 January 2005 she submitted a fresh application for authorisation to receive a child for purposes of adoption but it was rejected by the Youth Office of the Canton of Geneva in a decision of 12 September 2005. 18. On 7 December 2005, at an individual hearing before the cantonal authority, the applicant stated that she wished to receive a child no older than five and that she would prefer a child from Vietnam, like her first adopted child, whilst remaining open to the possibility of adopting a child from another country. 19. In a decision of 24 April 2006, the Court of Justice for the Canton of Geneva dismissed the applicant’s appeal and upheld the refusal to authorise provisional placement of a child with a view to adoption. It did not call into question the fact that the applicant’s educational qualities, based on love, respect and Christian values, were recognised. Moreover, the court considered that the applicant had sufficient resources as a result of her salaried jobs. It took the view, however, that the adoption of a second child could unfairly affect the situation of Violaine. Moreover, it found that the applicant had underestimated the specific difficulties of adoption, and in particular international adoption. The court further expressed certain reservations about the applicant’s availability and about the prospect of her father and brother being able to assist in caring for a second child. It thus concluded that the circumstances as a whole did not enable it to foresee that the adoption would further the child’s welfare. 20. In a judgment of 5 December 2006, notified to the applicant’s representative on 22 January 2007, the Federal Court dismissed the applicant’s administrative-law appeal, finding as follows: “... 2.1. Under Article 264 of the Civil Code – in the version in force since 1 January 2003 – a child may be adopted if the future adoptive parents have cared for it and provided for its education for at least one year, and if all the circumstances make it foreseeable that the establishment of a parent-child relationship will further the child’s welfare without unfairly affecting the situation of any other children of the adoptive parents. All adoptions must thus be preceded by a placement and fostering relationship of a certain duration. An imperative condition for adoption, this measure serves to justify the subsequent establishment of a parent-child relationship, to allow a probationary period for those concerned, and to provide the opportunity and means to ensure that the adoption will further the child’s welfare (ATF [Federal Court judgments] 125 III 161 point 3a p. 162 and citations). Under Article 316 of the Civil Code, the placement of children with foster parents is subject to the authorisation and supervision of the supervisory authority or another office for the place of residence of the said parents, as designated by cantonal law (§ 1); where the child is placed with a view to its adoption, a single cantonal authority is competent (§ 1 bis, as in force since 1 January 2003); the Federal Council stipulates the requirements for implementation (§ 2). In accordance with Article 11b of the Federal Council Order of 19 October 1977 governing the placement of children for the purposes of support and with a view to adoption (‘the OPEE’; RS 211.222.338), as in force since 1 January 2003, placement authorisation is given only where the personal qualities, state of health and educational capacities of the future adoptive parents and other persons living in their household, together with the housing conditions, offer every guarantee that the placed child will benefit from appropriate care, education and training, and that the well-being of the other children living in the family will be safeguarded (§ 1 (a)), that there is no statutory impediment to the future adoption and that all the circumstances put together, in particular the motives of the future adoptive parents, enable it to be foreseen that the adoption will further the child’s welfare (§ 1 (b)). The authority must particularly take the child’s interest into account where the age difference between the child and the adoptive parent is more than forty years (Article 11b § 3 (a) OPEE; see, on this issue, ATF 125 III 161 point 7a p. 167/168). This primary condition of adoption – the welfare of the child (Article 264 of the Civil Code) – is not easy to verify. The authority must ascertain whether the adoption is really capable of ensuring the best possible development of the child’s personality and of improving his or her situation; that question must be examined in all respects (emotional, intellectual, physical), without attributing excessive weight to the material factor (ATF 125 III 161 point 3a in fine p. 163 and citations). 2.2. Under Article 264b § 1 of the Civil Code, an unmarried person – whether single, widowed or divorced – may adopt alone if he or she is at least 35 years old. In this form of adoption, the parent-child relationship is established with a single parent. As a result of that situation, the adoptive parent must, on his or her own, assume the duties that meet the child’s needs and remain available to care for the child to a degree that exceeds that required of each parent in a couple adopting jointly. Accordingly, the authority must particularly take into account the child’s interest where the applicant is not married, or where he or she is unable to adopt jointly with his or her spouse (Article 11b § 3 (b) OPEE). The legislature’s intention was that joint adoption should be the rule and adoption by a single parent the exception (ATF 111 II 233 point 2cc p. 234/235). It may indeed be considered that the child’s interest, which is paramount, consists in principle of living in a complete family. Nevertheless, the law does expressly permit adoption by a single person, without subjecting him or her – unlike those wishing to adopt an adult or a person deprived of legal capacity (Article 266 § 1 Chapter 3 of the Civil Code) – to the existence of ‘valid reasons’. In any event, where the requisite conditions for the child’s welfare are satisfied, and the adoption by a single person meets all the requirements for the child’s fulfilment and personality development, the adoption will be granted; in such cases, at the preliminary placement stage, the conditions laid down in Article 11b of the OPEE will be satisfied, and the placement authorisation must be granted (ATF 125 III 161 point 4b p. 165 and citations). 3.1. The court below found that the appellant had appropriate educational qualities. She can count on a wide network of persons who support her in her project and have promised to help her take care of the children when she is busy. Since the refusal of the authorities of the Canton of Jura (see B.a above), she has changed the organisation of her life by moving to Geneva, where she carries on her professional activities; since November 2004 she has been renting accommodation in an area close to the parish church of which she is maître de chapelle and in a building that also houses the offices and secretariat of the music festival of which she is the artistic director. Lastly, her financial resources are sufficient (7,000 [Swiss francs] per month). Those points being established, it is not necessary to examine them again. 3.2. In her application of 19 January 2004 the appellant had sought authorisation to receive ‘a second child, from South America, aged between 1 and 3’; it does not appear from the application lodged the following year that those criteria had changed. However, when she appeared personally before the cantonal authority on 7 December 2005 she declared that she wished to receive a child ‘up to the age of five’; pointing out that A. [the first child adopted by the applicant] was from Vietnam, she expressed a desire to be entrusted with a child who was ‘born in that country’, whilst ‘of course remaining open to other countries’. As this Court found in a recent case, such an approach cannot be admitted (see judgment of 5A.11/2005 of 3 August 2005, point 3.1, published in FamPra.ch 2006 p. 177). The home study report (Article 268a Civil Code and Article 11d OPEE) is drawn up according to the age and origin of the child, factors that the applicant must indicate (Article 11g § 2 (a) and (c) OPEE). The Youth Office thus quite rightly, in its findings on the cantonal appeal, found that this document had been ‘drawn up on the basis of an application for the adoption of a child aged between 1 and 3 at the time of its arrival’. Any finding to the contrary would suggest that an application could be changed as and when the case so required, for a reduction of the age difference in this instance. It follows that the criticism of the cantonal court for not having granted an ‘authorisation for an older child, in order to reduce the age difference’ appears ill-founded. The fact that the Convention between Switzerland and Vietnam on cooperation in matters of child adoption came into force while the case was pending on appeal, that is to say on 9 April 2006 (RO 2006 p. 1767), is immaterial; moreover, the appellant does not show that she would satisfy the conditions laid down in that agreement, or even – notwithstanding the opinion of the Youth Office’s representative (see record of individual hearing on 5 April 2006) – that her project would in fact be feasible. 3.3. The appellant was born in 1957 and is thus 49 years old; in relation to a child of between one and three years old – leaving aside the waiting times in international adoption – the age difference would be between forty-six and forty-eight years. In the light of the Federal Court’s case-law such a difference appears excessive (see judgment 5A.6/2004 of 7 June 2004, point 3.2, published in FamPra.ch 2004 p. 710: single person ‘of almost 50 years’ wishing to adopt a ‘girl under 5 years old’; see also the references cited in ATF 125 III 161 point 7a, p. 167/168). As the cantonal authority rightly pointed out, even an age difference of forty-five years is too great. In that case the appellant would, at over 60, find herself the single parent of two teenagers, who, in addition to the problems arising in that period of life, may well face particular difficulties as adopted children (see, for example, judgment 5A.21/1999 of 21 December 1999, point 3d, published in FamPra.ch 2000 p. 546), especially as the future child might have specific needs. The appellant is thus wrong to rely on Federal Court judgment 125 III 161 (age difference between forty-four and forty-six years), where, moreover, the adoption of a single child was at stake (see point 3.4 below). 3.4. The opinion of the court below, according to which the appellant underestimated the burden represented by a second child, cannot be disputed. Whilst it may be admitted, from a theoretical standpoint, that the presence of a sister or brother may have beneficial effects in emotional and social terms (see judgment 5A.25/1996 of 1 May 1997, point 6b, unpublished, in SJ 1997 pp. 597 et seq.), that assessment should be nuanced as far as adopted children are concerned. The home study report noted that A., after enjoying exclusive maternal attention, faced the risk of ‘reactivating a feeling of abandonment’; the positive effects of a new adoption on her situation (Article 264 in fine of the Civil Code, section 9(b) LF-ClaH [Federal Law on the Hague Convention], and Article 11b § 1 (a), in fine, OPEE) are not therefore certain (see, in general, Lücker-Babel, Adoption internationale et droits de l’enfant, Fribourg 1991, p. 44; this author observes that ‘it is in families that have a number of adopted children or a number of biological children [and only one adoptive child] that the failure rate is the highest’). In addition, it cannot be ruled out that the second child might have difficulties related to the deprivations suffered by children who have been abandoned (judgment 5A.9/1997 of 4 September 1997, point 4b, published in RDT 1998 p. 118), and this might complicate the arrangements made by the appellant. These findings are consistent with those of the Jura Social Action Department in its additional report of 11 June 2003. The appellant disputes that assessment; she asserts, relying on statements from third parties, that the second adoption would be ‘beneficial for A.’ and criticises the cantonal judges for straying into ‘theoretical conjectures’. Those criticisms appear unjustified. Given that the placement authorisation precedes the adoption decision, the authority must inevitably make a prognosis. In view of the characteristics of an adoption by a single person and the dramatic consequences that a failed adoption would have for the child (see, on this subject, Lücker-Babel in RDT 1994 pp. 86 et seq.), the court below cannot be reproached for its rigour (see Breitschmid, op. cit., n. 19 ad Article 264 of the Civil Code and the literature cited), as was in fact required of it by Article 11b § 3 of the OPEE (‘most particularly’). It is not for this Court to substitute its own conception of the child’s welfare for that of the cantonal authority and of the investigators (see FamPra.ch 2006 p. 178, point 3.2 in fine and citations), but solely to ascertain whether relevant circumstances have not been taken into consideration or, indeed, whether crucial factors have been overlooked. Notwithstanding the appellant’s categorical denials, that is not the case here. 3.5. The cantonal authority found that the assistance that the appellant’s father could provide was not a solution for the care of A. and a second child; the presence at home of an 85-year-old father would represent, on the contrary, a handicap in the future, because his daughter would herself be required to provide him with help and support at some point. The appellant’s brother, who has no children – and it is not known whether his wife has a professional activity – could admittedly help her with the future child, as he has already done with A.; however, the brother lives in Lausanne. Similarly, the person intended to become the adopted child’s godfather lives in Lyons. Lastly, the support of neighbours in her building and of her very close friend, together with the presence of A.’s godfather and godmother, does not change anything, as the important criterion is the availability of the appellant herself; moreover, the education of children always rests with the parents, and it is easier to express an intention of assistance in the abstract context of a procedure than in everyday life and for some twenty years. This opinion is consistent with the case-law of this Court and with legal opinion (FamPra.ch 2006 p. 178 point 3.2; Meier/Stettler, Droit de la filiation, vol. I, 3rd ed., no. 263, with other citations). Whatever the appellant may claim, the cantonal authority did not minimise the involvement of her family and friends by preferring ‘theoretical assertions’. The Court had occasion to observe this in a recent case, where, in spite of her ‘extended family’, a mother applying for a second adoption had had to entrust her adopted daughter to a neighbour when she went into hospital (FamPra.ch 2006 ibid.). As to the possibility of having to care for her father, she merely asserts that her brother ‘would be present’, but the latter has not corroborated this claim and in addition is supposed to make up for any deficiencies of the appellant. Moreover, the child’s interest cannot be measured solely in terms of the availability of the parent who is seeking to adopt alone (Meier/Stettler, ibid.). The grounds set out above are, in any event, sufficient for the decision appealed against to be upheld. 4. In conclusion, having regard to the discretionary powers enjoyed by the placement authorities (RDT 1998 p. 118 point 4b), the decision of the court below does not lay itself open to criticism. Accordingly, the appeal must be dismissed, with costs awarded against the appellant (section 156(1) of the Judicial Organisation Act).” II. RELEVANT DOMESTIC, COMPARATIVE AND INTERNATIONAL LAW A. Domestic law 21. The relevant provisions of the Swiss Civil Code are as follows: Chapter IV: AdoptionA. Adoption of minorsArticle 264 (General condition) “A child may be adopted if the future adoptive parents have provided it with care and education for at least one year and if, in the light of all the circumstances, it may be foreseen that the establishment of a parent-child relationship will further the child’s welfare without unfairly affecting the situation of other children of the adoptive parents.” Article 264b (Adoption by a single person) “1. An unmarried person may adopt a child alone if he or she is at least 35 years old. ...” Article 268a (Enquiries) “1. An adoption shall not be granted until enquiries have been made, covering all essential circumstances, where necessary with the assistance of experts. 2. The enquiries shall concern, in particular, the personality and health of the adoptive parents and the child, their mutual suitability, the parents’ ability to bring up the child, their financial situation, their motives, their family circumstances and the development of the fostering relationship. 3. Where the adoptive parents have descendants, the opinion of the latter shall be taken into account.” Article 316 (Supervision of children placed with foster parents) “1. The placement of children with foster parents shall be subject to the authorisation and supervision of the supervisory authority or another office for the foster parents’ place of residence, as designated by the law of the canton. 1 bis. Where a child is placed with a view to adoption, a single cantonal authority shall be responsible. 2. The Federal Council shall issue implementing regulations.” 22. The relevant provisions of the Federal Council’s Order governing the placement of children for support and with a view to adoption (“the OPEE”) of 19 October 1977 read as follows: Article 11b (Conditions for grant of authorisation) “Authorisation may only be granted where: (a) the personal qualities, state of health and educational capacities of the future adoptive parents and other persons living in their household, together with the housing conditions, offer every guarantee that the fostered child will benefit from appropriate care, education and training and that the well-being of other children in the family will be safeguarded; and where (b) there is no legal impediment preventing the future adoption and provided it can be foreseen, in the light of all the circumstances, in particular the motives of the future adoptive parents, that the adoption will further the child’s welfare. The capacities of the future adoptive parents will require special attention if there are circumstances that may render their task difficult, in particular: (a) where it may be feared, in view of the child’s age, especially if it is over six years of age, or in view of its development, that it may have difficulties settling into its new environment; (b) where the child is physically or mentally handicapped; (c) where more than one child will be placed in the same family; (d) where the family already has more than one child. The authority will take particular account of the child’s interest where: (a) the age difference between the child and future adoptive father or mother is more than forty years; (b) the applicant is not married or he or she cannot adopt jointly with his or her spouse.” Article 11g (Provisional authorisation to receive a child who has previously been living abroad) “Where the future adoptive parents meet the conditions laid down in Articles 11b and 11c, § 1, provisional authorisation to receive a child who has previously been living abroad, with a view to his or her adoption, may be delivered, even if the child has not yet been determined. In their application, the future adoptive parents shall indicate: (a) the child’s country of origin; (b) the service or person in Switzerland or abroad whose assistance will be required in finding the child; (c) their stipulated conditions regarding the child’s age; (d) where appropriate, their stipulated conditions regarding the child’s gender or state of health. The provisional authorisation may be limited in time and may be subject to obligations and conditions. The child may be received in Switzerland by its future adoptive parents only once the visa has been issued or leave to remain has been secured. After the child has entered Swiss territory, the authority shall decide on the granting of permanent authorisation.” B. Comparative law 23. Most European legislations authorise adoption by a single person. However, a number of different situations can be found. The legislative provisions of certain States permit any person, man or woman, with or without a precise indication of marital status, to apply for adoption. This is the case, in particular, for the following countries: Belgium, the Czech Republic, Estonia, Finland, “the former Yugoslav Republic of Macedonia”, France, Hungary, Ireland, Malta, the Netherlands, Portugal, Russia, Spain, Sweden, Turkey and the United Kingdom. Certain States, such as Germany or Latvia, allow adoption by a single person subject to certain conditions. In German legislation, adoption is regarded as legitimate where it contributes to the child’s physical and moral well-being and where the establishment of an effective parent-child relationship can be expected. 24. Other States impose restrictions on the adoption of a child by a single person. For example, in Slovakia and Croatia, adoption by a single parent remains an exception. The possibility may be envisaged only if it can be shown that the adoption is in the child’s interest (in Slovakia and Croatia). In the same vein, Serbian and Montenegrin legislations allow adoption by a single person only where there are sufficient reasons to justify it. Luxembourg law draws a distinction between simple adoption (which does not terminate the connection with the family of origin) and full adoption (which terminates all legal connection with the family of origin), stipulating that simple adoption alone, not full adoption, is possible for a single person. Unlike France and Belgium, which also have such a distinction, but which nevertheless allow single persons to adopt in both cases, it is not possible in Luxembourg or Montenegro for single persons to apply for full adoption. 25. The Italian legislation is similar to that of Luxembourg and Montenegro, as single persons are authorised to adopt minors only in the context of “adoption in special circumstances”. The definition of “adoption in special circumstances” corresponds to that of simple adoption, as it enables the adopted child to retain legal connections with his or her family of origin. 2. Conditions as to minimum and maximum age of prospective adopters 26. Most of the legislations of the Council of Europe’s member States require a minimum age for prospective adopters. That age continually decreased throughout the twentieth century. The majority of European legal systems now fix a minimum age of between 18 and 30 years. The Czech Republic, “the former Yugoslav Republic of Macedonia”, Hungary and Romania are among the rare member States that do not stipulate a minimum age for persons wishing to adopt. 27. Some legislations, albeit few in number, expressly provide for a maximum age for prospective adopters. For example, Croatia, “the former Yugoslav Republic of Macedonia”, Greece, Montenegro, the Netherlands and Portugal impose a maximum age of between 35 and 60 years (for the latter limit, Greece and Portugal in particular). Specific reasons may exceptionally justify non-observance of the maximum age rule. This is the case, for example, in Montenegro and the Netherlands, where an exemption from the maximum age requirement may be granted where there are sufficient reasons to justify such an exception or specific circumstances. In Montenegro and the “the former Yugoslav Republic of Macedonia”, when exemption from the maximum age is possible, an additional condition, relating to the difference in age between adopter and adoptee, is imposed. 28. In another group of States, where no maximum age is stipulated, the competent national authorities in the area of adoption nevertheless take into consideration the age of the person wishing to adopt when they examine his or her personal situation. This is apparent from the material available on the legal systems of Belgium, France, Ireland, Romania, Slovakia, Spain, Sweden and the United Kingdom. 3. Conditions concerning age difference between adopter and adoptee 29. It appears that the legislations of most member States also contain provisions concerning the age difference between adopter and adoptee. 30. A number of legal systems – Austria, Belgium, Bulgaria, Croatia, “the former Yugoslav Republic of Macedonia”, France, Greece, Hungary, Italy, Luxembourg, Malta, Montenegro, the Netherlands, Russia, Serbia, Spain and Turkey – impose a minimum age difference between adopter and adoptee. That difference, where required, varies between fourteen and twenty-one years. It should be noted, however, that the legislations of these States do allow derogations from the principle of the minimum age difference in certain situations. 31. In another group of legal systems, including in particular the Czech Republic, Denmark, Estonia, Finland, Germany, Ireland, Portugal, Romania, Slovakia, Sweden, Ukraine and the United Kingdom, no minimum age difference is provided for by law. In those cases the legislation may expressly provide that the age difference must be “appropriate”, “neither too wide nor too narrow” or “reasonable”. 32. Some legislations set a maximum age difference between adopter and adoptee, namely forty years in Denmark, Finland and the Netherlands (in the latter, only for the adoption of foreign children), forty-five years in Croatia, “the former Yugoslav Republic of Macedonia”, Hungary, Italy, Malta, Serbia and Ukraine, and fifty years in Greece; also, in exceptional circumstances, in Montenegro and Portugal. However, derogations from the provisions concerning the maximum age difference are possible in specific circumstances, which are largely the same as those that are considered in respect of the minimum age difference. C. International law 33. A significant number of instruments governing adoption, particularly in order to protect the child’s interest, lay down various conditions. However, few texts expressly lay down requirements related to the possibility of adoption by single persons or conditions concerning the adopter’s age or the age difference between adopter and adoptee. Certain international instruments concerning adoption refer to the application of the domestic law rules of the States Parties to the conventions in question. 1. European Convention on the Adoption of Children, 24 April 1967 34. The European Convention on the Adoption of Children, 24 April 1967, remains the main instrument of the Council of Europe in the area of adoption. It came into force on 26 April 1968. To date, eighteen member States, including Switzerland, have ratified it and three have just signed it. 35. Under the first Article of this instrument, the member States of the Council of Europe, Contracting Parties to the Convention, undertake to ensure the conformity of their law with the provisions of Part II of the Convention. This Part sets out a minimum number of essential principles to which the Contracting Parties undertake to give effect, seeking to harmonise such principles and European practice in matters of adoption. 36. As regards persons who are allowed to adopt a child, Article 6 stipulates that the law of the Contracting Party may permit a child to be adopted by one person. However, States that only allow adoption by a couple are not required to enact provisions to allow adoption by a single person. 37. As to the age-limit for adoptive parents and the age difference between them and the children, Article 7 provides that “a child may be adopted only if the adopter has attained the minimum age prescribed for the purpose, this age being neither less than 21 nor more than 35 years”. However, “the law may ... permit the requirement as to the minimum age to be waived when (a) the adopter is the child’s father or mother, or (b) by reason of exceptional circumstances”. 38. Article 8 provides as follows: “1. The competent authority shall not grant an adoption unless it is satisfied that the adoption will be in the interest of the child. 2. In each case the competent authority shall pay particular attention to the importance of the adoption providing the child with a stable and harmonious home. 3. As a general rule, the competent authority shall not be satisfied as aforesaid if the difference in age between the adopter and the child is less than the normal difference in age between parents and their children.” 2. European Convention on the Adoption of Children (Revised), 27 November 2008 39. The legal and social changes that have occurred in Europe since the first Council of Europe Convention on the Adoption of Children have led a large number of States Parties to amend their adoption laws. As a result, certain provisions of the 1967 Convention have gradually become outdated. With that in mind, a revised Convention was drawn up in line with the social and legal developments whilst taking the child’s best interests into account. 40. The Council of Europe’s European Convention on the Adoption of Children (Revised) (“the Revised Convention”), which was opened for signature on 27 November 2008, has not yet come into force; fourteen member States have signed it to date. It will replace, as regards the States Parties thereto, the European Convention on the Adoption of Children. 41. Under Article 7 of the Revised Convention (conditions for adoption), domestic law will “permit a child to be adopted ... by one person”. Article 9 (minimum age of the adopter) provides as follows: “1. A child may be adopted only if the adopter has attained the minimum age prescribed by law for this purpose, this minimum age being neither less than 18 nor more than 30 years. There shall be an appropriate age difference between the adopter and the child, having regard to the best interests of the child, preferably a difference of at least sixteen years. 2. The law may, however, permit the requirement as to the minimum age or the age difference to be waived in the best interests of the child: a. when the adopter is the spouse or registered partner of the child’s father or mother; or b. by reason of exceptional circumstances.” 42. This Article does not prevent the national law from imposing a minimum age of more than 18 years on the adopter. Any higher level of minimum age must nevertheless respect the principle of adoption as enshrined in the Convention and, accordingly, that age cannot exceed 30. The upper limit of the minimum age that was set by the 1967 Convention, namely 35 years, now appears excessive; it has thus been set at 30. Moreover, the Convention does not prescribe a maximum age for the adopter (see Explanatory Report on the Revised Convention, §§ 50-52). THE LAW I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8 43. Relying on Article 12 of the Convention, taken in conjunction with Article 14, the applicant, a single woman aged forty-seven and a half at the time of her application to receive a child with a view to adoption, complained that the Swiss authorities had debarred her from adopting a second child because of her age. In this connection, she also claimed to be a victim of discrimination in relation to women who could nowadays have biological children at that age. Article 14 reads 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.” 44. Article 12 of the Convention provides: “Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.” 45. Notice of the application was given to the Government on 17 February 2009. They were invited to submit their observations on a possible violation of Article 14 of the Convention, taken in conjunction with Article 8, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 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.” ... B. The Court’s assessment 69. The Court is aware of the fact that the applicant, who was not represented before the Court when she lodged the present application, relied on Article 14 of the Convention taken in conjunction with Article 12. However, since the Court is master of the characterisation to be given in law to the facts of the case (see, for example, Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998-I, and Glor v. Switzerland, no. 13444/04, § 48, ECHR 2009), it considers it more appropriate, in the light of all the circumstances of the case, to examine the present case under Article 8. ... 2. Merits (a) Applicable principles 76. The Court reiterates that Article 14 of the Convention affords protection against any discrimination in the enjoyment of the rights and freedoms set forth in the other substantive provisions of the Convention and Protocols thereto. However, not every difference in treatment will automatically amount to a violation of that Article. It must be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment and that this distinction is discriminatory (see, for example, National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, 23 October 1997, § 88, Reports 1997-VII, and Zarb Adami v. Malta, no. 17209/02, § 71, ECHR 2006-VIII). 77. According to the Court’s case-law, a difference of treatment is discriminatory within the meaning of Article 14 if it has no objective or reasonable justification. The existence of such justification must be assessed in relation to the aim and effects of the measure in question, having regard to the principles which normally prevail in democratic societies. A difference of treatment in the exercise of a right laid down by the Convention must not only pursue a legitimate aim: Article 14 will also be violated when it is clearly established that there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised (see, for example, Zarb Adami, cited above, § 72; Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 51, ECHR 2006‑VI; and Lithgow and Others v. the United Kingdom, 8 July 1986, § 177, Series A no. 102). 78. In other words, the notion of discrimination generally covers those cases where a person or group is treated, without proper justification, less favourably than another, even if the more favourable treatment is not called for by the Convention (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 82, Series A no. 94). Article 14 does not prohibit distinctions in treatment which are founded on an objective assessment of essentially different factual circumstances and which, being based on the public interest, strike a fair balance between the protection of the interests of the community and respect for the rights and freedoms safeguarded by the Convention (see, among other authorities, G.M.B. and K.M. v. Switzerland (dec.), no. 36797/97, 27 September 2001, and Zarb Adami, cited above, § 73). 79. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment. The scope of the margin of appreciation will vary according to the circumstances, the subject matter and the background. One of the relevant factors may be the existence or non-existence of common ground between the laws of the Contracting States (see, among other authorities, Rasmussen v. Denmark, 28 November 1984, § 40, Series A no. 87; Fretté v. France, no. 36515/97, § 40, ECHR 2002‑I; Stec and Others, cited above, § 52; and Inze v. Austria, 28 October 1987, § 41, Series A no. 126). 80. Since the Convention is first and foremost a system for the protection of human rights, the Court must have regard to the changing conditions within the respondent State and within Contracting States generally and respond, for example, to any evolving convergence as to the aims to be achieved. The existence or non-existence of common ground between the legal systems of the Contracting States may in this connection constitute a relevant factor in determining the extent of the authorities’ margin of appreciation (see Rasmussen, cited above, § 40, and, mutatis mutandis, The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 59, Series A no. 30). 81. The Convention and Protocols thereto must also be interpreted in the light of present-day conditions (see Tyrer v. the United Kingdom, 25 April 1978, § 31, Series A no. 26; Airey v. Ireland, 9 October 1979, § 26, Series A no. 32; and Vo v. France [GC], no. 53924/00, § 82, ECHR 2004‑VIII). Lastly, the Court reiterates the well-established principle in its case-law that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see, for example, Artico v. Italy, 13 May 1980, § 33, Series A no. 37). (b) Application of these principles to the present case (i) The existence of a difference in treatment between persons placed in analogous situations 82. The applicant, a single woman aged forty-seven and a half at the time of her application to receive a child with a view to adoption, complained that the Swiss authorities had debarred her from adopting a second child because of her age. She claimed, in particular, to be a victim of discrimination in relation to women who could nowadays have biological children at that age. 83. The Government submitted, by contrast, that there had been no difference in treatment on the part of the State in similar or analogous situations, since the State could not have any influence over a woman’s ability or inability to have biological children. Moreover, the Government argued that it could not be concluded from the present case that in Switzerland there was a general discriminatory attitude based on the age of persons wishing to adopt a child. The Federal Court’s case-law illustrated the contrary, since an age difference of forty-four years, or even of forty-six years, had not been found excessive in two cases that it had examined ... 84. The Court cannot share the applicant’s opinion that she has been the victim of discrimination in relation to women who, nowadays, are able to have biological children at that age. Like the Government, it finds that this does not correspond to a difference in treatment on the part of the State in analogous or similar situations. As the Government rightly observed, the State has no influence over a woman’s ability or inability to have biological children. 85. The Court is of the opinion, by contrast, that the applicant may consider herself to have been treated differently from a younger single woman who, in the same circumstances, would be likely to obtain authorisation to receive a second child with a view to its adoption. Accordingly, the applicant may claim to be a victim of a difference in treatment between persons in analogous situations. (ii) The existence of objective and reasonable justification 86. The Court has no doubt that the denial of authorisation to receive a child with a view to adoption pursued at least one legitimate aim: to protect the well-being and rights of the child (see, mutatis mutandis, Fretté, cited above, § 38). It remains to be determined whether the second condition – the existence of justification for a difference in treatment – was also met. 87. The Court notes that in 1998 the applicant, then aged 41, applied for authorisation to receive a first child and it was granted. In January 2000 she received a little girl, who was born in Vietnam. The adoption was finalised on 26 June 2002 (see paragraph 10 above). 88. As regards the subsequent procedure with a view to the adoption of a second child, the Court observes that the domestic authorities by no means called into question the fact that the applicant had the requisite child-rearing capacities and financial means in order to adopt a second child. However, the Federal Court found that there would be an age difference between the applicant, who was 49 at the time it delivered its judgment, and the child to be adopted, of between forty-six and forty-eight years, a difference that it regarded as excessive and not in the child’s interest in the circumstances of the case. The Federal Court added, like the court below, that even assuming that the adoption concerned a 5-year-old child, and not a 3-year-old as the applicant had initially wished, an age difference of forty-five years in relation to the child appeared excessive. 89. It must be noted that there is no common ground in this area. In the present case the applicant wished to adopt alone, as a single mother. On the basis of research it has carried out, the Court notes that such a right is not guaranteed in all the member States of the Council of Europe, at least not in an absolute manner. Certain legislations permit adoption by a single person on an exceptional basis and only subject to certain conditions (paragraphs 23-25 above). The European Convention on the Adoption of Children, in its 24 April 1967 version, stipulates that the laws of the States Parties may permit a child to be adopted by one person, but it does not make this mandatory (see paragraph 36 above), unlike the Revised Convention of 27 November 2008, Article 7 § 1 (b) of which will oblige States Parties thereto, once it has come into force, to authorise adoption by a single person. 90. As regards the applicant’s age, which according to her was the main criterion of distinction, no uniform principle can be found in the legal systems of the Contracting States, neither in respect of the lower and upper age-limits for adopters nor in respect of the age difference between the adopter and the adopted child. Most of the Council of Europe’s member States require a minimum age for prospective adopters, an age that continually decreased throughout the twentieth century (see paragraph 26 above). In addition, Article 264 (b) of the Swiss Civil Code sets the minimum age for a person wishing to adopt alone at 35 (see paragraph 21 above), which is consistent with Article 7 of the European Convention on the Adoption of Children of 24 April 1967. It can be seen from the Explanatory Report on the Revised Convention that such a limit appeared too high and it was therefore reduced to 30 in the new version. The Court observes that this development does not undermine the Government’s position in the present case, as the applicant did not complain that this minimum age had prevented her from adopting a second child. 91. As regards the maximum age for prospective adopters, the Court again finds that there is great diversity in the solutions adopted by the legislatures of the member States. Admittedly, some States have set the maximum age at 60 (see paragraph 27 above), but the Court finds that no obligation can arise for Switzerland from those isolated cases. It should also be taken into account that neither the Convention of 1967 nor that of 2008 prescribes a maximum age-limit for adopters. The Court notes that the same applies to the age difference between adopter and adoptee. It would point out that the Federal Court found, in the light of its own case-law, that an age difference of between forty-six and forty-eight years was in the present case excessive. In the Court’s view, such a conclusion is not per se incompatible with Article 14, even though some legislations, albeit few in number, allow for an even greater maximum age difference (see paragraph 32 above). The 1967 Convention does not lay down any fixed rule in this connection and Article 9 § 1 of the 2008 Convention simply provides that there should be “an appropriate age difference”. 92. In view of the foregoing, the Court takes the view that, in the absence of any consensus in this area, the Swiss authorities had a wide margin of appreciation and that both the domestic legislation and their decisions appear to fall squarely within the framework of the solutions adopted by the majority of the member States of the Council of Europe and, moreover, to be in conformity with the applicable international law. 93. The Court considers it quite natural that the national authorities, whose duty it is also to consider, within the limits of their jurisdiction, the interests of society as a whole, should enjoy broad discretion when they are asked to make rulings on such matters. Since the delicate issues raised in the present case touch on areas where there is little common ground amongst the member States of the Council of Europe and, generally speaking, the law appears to be in a transitional stage, a wide margin of appreciation must be left to the authorities of each State (see, mutatis mutandis, Manoussakis and Others v. Greece, 26 September 1996, § 44, Reports 1996-IV, and Cha’are Shalom Ve Tsedek v. France [GC], no. 27417/95, § 84, ECHR 2000-VII). 94. This margin of appreciation should not, however, be interpreted as granting the State arbitrary power, and the authorities’ decision remains subject to review by the Court for conformity with the requirements of Article 14 of the Convention. 95. As the Government submitted, at issue here are the competing interests of the applicant and the children in question. The State must see to it that the persons chosen to adopt are those who can offer the child the most suitable home in every respect. The Court points out in that connection that it has already found that where a family tie is established between a parent and a child, “particular importance must be attached to the best interests of the child, which, depending on their nature and seriousness, may override those of the parent” (see E.P. v. Italy, no. 31127/96, § 62, 16 September 1999, and Johansen v. Norway, 7 August 1996, § 78, Reports 1996-III). 96. As to the present case, the domestic authorities’ decisions were taken in the context of adversarial proceedings during which the applicant was able to submit her arguments, which were duly taken into account by the authorities. Those decisions contained detailed reasoning and were based in particular on the in-depth enquiries carried out by the cantonal authorities. They were inspired not only by the best interests of the child to be adopted, but also by those of the child already adopted. Moreover, the Court finds it noteworthy that the criterion of the age difference between adopter and adoptee is not laid down by Swiss law in the abstract but has been applied by the Federal Court flexibly and having regard to the circumstances of each case. In particular, the Court does not find unreasonable or arbitrary the argument of the domestic bodies that the placement of a second child, even of a similar age to the first, would constitute an additional burden for the applicant. Nor would it disagree with the point that problems are more numerous in families with more than one adopted child (see Federal Court judgment, point 3.4, paragraph 20 above). It is clear in this type of case that the use of statistical data is necessary and that a degree of speculation is inevitable. 97. If account is taken of the broad margin of appreciation accorded to States in this area and the need to protect children’s best interests, the refusal to authorise the placement of a second child did not contravene the proportionality principle. 98. In short, the justification given by the Government appears objective and reasonable and the difference in treatment complained of is not discriminatory within the meaning of Article 14 of the Convention. 99. Accordingly, there has been no violation of Article 14 of the Convention taken in conjunction with Article 8. FOR THESE REASONS, THE COURT UNANIMOUSLY ... 2. Holds that there has been no violation of Article 14 of the Convention taken in conjunction with Article 8. Done in French, and notified in writing on 10 June 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos Rozakis Registrar President

FOURTH SECTION CASE OF VETRENKO v. MOLDOVA (Application no. 36552/02) JUDGMENT STRASBOURG 18 May 2010 FINAL 04/10/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Vetrenko v. Moldova, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,Giovanni Bonello,Ljiljana Mijović,David Thór Björgvinsson,Ledi Bianku,Mihai Poalelungi, judges,and Lawrence Early, Section Registrar, Having deliberated in private on 27 April 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 36552/02) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Moldovan national, Mr Vilen Vetrenko (“the applicant”), on 17 August 2002. 2. The applicant, who had been granted legal aid, was represented by Ms N. Mardari and Mr F. Nagacevschi, lawyers practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu. 3. The applicant alleged, in particular, that he had been ill-treated in order to make self-incriminatory statements and was then convicted on the basis of such statements, that he had been unlawfully arrested and that he had not been given, at the beginning of the investigation, access to the lawyer chosen by him. He essentially complained of the alleged unfairness of the criminal proceedings against him, including the domestic courts' failure to give sufficient reasons for convicting him. 4. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). On 9 January 2007 a Chamber of that Section decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1975 and lives in Chişinău. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 1. The murder of M. 7. According to the prosecution, M. was invited to a bar on 19 May 1997 by several persons, including R. M. and U., her former neighbours, and the applicant, in whose apartment R. M. and U. rented a room. 8. In the bar they all consumed alcohol and then added a soporific to M.'s glass, after which she fell asleep. R. M. took M., U. and the applicant in his car to a remote area. R. M. and the applicant took M. out of the car and tried to strangle her with a cord. When this failed they tied her limbs and threw her into a well, where she drowned. 9. On 1 June 1997 S. P., a police officer, reported that he was trying to locate T., who could have information regarding M.'s whereabouts. Officer S. P. proposed indentifying the person(s) offering M.'s apartment for sale in order to find T. 10. On 3 June 1997 T., one of M.'s neighbours, made a written statement, giving details about M.'s murder as allegedly told to her by U. She named R. M., U. and S. as perpetrators of the crime. She also mentioned her intention to move to Tashkent, Uzbekistan, where her grandmother lived. On 4 June 1997 officer S. P. filed a report on a conversation with T. in which he reported that T. had stated that the applicant had also been involved in the crime. On 5 June 1997 T. was interviewed by investigator G. and confirmed the events as described in the officer's report. She declared that U. had told her about the details of the crime on 20 May 1997. She did not mention the applicant's name or that he had participated in any manner in the crime. 2. The applicant's arrest and alleged ill-treatment 11. On 4 June 1997 the police found the applicant at his friends' address and told him that he owed them money. He was requested to follow them to the police station, where he was arrested. He was then informed that he, R. M. and U. were suspected of having murdered M. 12. According to the applicant, immediately after his arrest he told the investigator all the details about the murder of M. which he had found out from R. M., including the place where the body had been left. He had not reported the crime earlier for fear of R. M.'s retaliation. However, he was then ill-treated for six hours by the investigators to make him own up to the crime: he was allegedly nearly asphyxiated several times with a gas mask. He was also verbally abused and threatened with more serious forms of ill-treatment. 13. In the evening of 4 June 1997 the applicant made a self-incriminating statement in the presence of a State-appointed lawyer and two witnesses. That lawyer allegedly never participated in the proceedings after the confession had been made. In his statement the applicant described the manner of M.'s murder and the place where her body had been left. He stated that he and R. M. had attempted to strangle M. with a cord, and then tied her up and threw her into a well. No mention was made of hitting M. or causing other injuries to her. The confession was filmed. Before the filming of the confessions, a medical expert was requested to verify the presence of any signs of ill-treatment on the applicant's body. He found no such signs. The applicant expressly stated that he had not been ill-treated. He later declared in court that the filming of his confession had been rehearsed with the investigator, that it was a farce and that he had been warned about further ill-treatment if he were to deny his previous confessions. 14. The applicant was offered the opportunity to sign the minutes of the interview, first before making any statements in order to confirm that he had been read his rights and then at the end of the interview to confirm what he had stated. However, he refused to sign in both places. He later explained this refusal as a last attempt to resist unlawful pressure. 15. The second part of the confession made on the same day involved going to the well where the victim's body had been deposited and filming his confession there. He refused to sign this confession. 16. On 5 June 1997 the applicant made another statement, which was essentially the same as that made the day before. He was allegedly threatened with further ill-treatment if he were to deny his earlier confessions. 17. A forensic report was also drawn up on 5 June 1997, concluding that M. had died from drowning and that her body had a number of bruises on it, caused by repeated hitting, as well as marks on her hands and legs from the cord with which she had been tied. No sign of strangulation was found on her neck. The expert established that M. had died “several days before the report was filed”. 18. In the afternoon of 5 June 1997 the applicant was allowed to call his mother and on 6 June 1997 he declared, in her presence and in the presence of the investigator, that he was innocent. He also mentioned a person with whom he had been held in the same cell at the police station who could confirm that he had been returned to the cell in a poor general state after ill-treatment by the police. However, he was told by both the investigator and his lawyer that the courts would not believe such statements. He allegedly mentioned his ill-treatment and the possible testimony of his cellmate in his complaints to the courts and the prosecutors but these were not followed up. His former cellmate was apparently not questioned. In all his subsequent interviews the applicant maintained his innocence and explained that he had found out about some of the details of the murder, including the place where the body had been deposited, from R. M., who had taken him to the well after the murder. 19. The applicant's new lawyer allegedly noted, on 12 October 1997, that there were no signatures on the minutes of the interview, contrary to the law. On 28 October 1997 signatures appeared on the minutes and the applicant was allegedly forced to sign. He refused and the last-minute intervention of his mother prevented the investigators from ill-treating him further. As a result of her intervention the investigators had to write in the minutes that the applicant had refused to sign. He was allegedly prevented from writing in the minutes the date of 28 October 1997 as the date when he had refused to sign, contrary to Article 124 CCP (see below). On 31 October 1997 the applicant complained about this fact to the prosecution, but to no avail. The minutes of the interview with the applicant of 4 June 1997 were signed by the investigator in charge of the case, G. The statement concerning the applicant's refusal to sign the minutes was countersigned by investigator D., who took charge of the case at a later date. 20. For several months in 1998 he was allegedly detained in inhuman conditions in the cellar of the police inspectorate. 21. In a statement to the police, T.'s sister mentioned Tashkent as a place where their relatives lived. 3. The first set of proceedings (1998-1999) a. The judgment of the Chişinău Regional Court 22. On 16 December 1998 the Chişinău Regional Court acquitted the applicant of the charge of murder and convicted R. M. The court found, inter alia, that it had not been established that the applicant had participated in the crime. It had been established, however, that he had failed to report it when he was told about it by R. M., which was a criminal offence. The court also found that the confessions made by the applicant in the first two days of his detention could not be used as a basis for convicting him because they contradicted other evidence in the case (his refusal to sign the confessions, which raised doubts about their truthfulness; the fact that as from 6 June 1997 and throughout the proceedings he had denied having killed M.; and his alibi, two persons, including I. M., who also lived in the applicant's apartment at the time of the events, having confirmed that he had returned home at about 11 p.m. on the night of the murder). The court convicted the applicant of failing to report the crime committed by R. M., but ordered his release on the basis of an amnesty applicable to lesser crimes. b. The judgment of the Court of Appeal 23. On 4 November 1999 the Court of Appeal upheld the lower court's judgment. The court noted that another person, S., was also suspected of having helped R. M. to murder M. and that his case had been disjoined because he was in hiding. The court also noted that, apart from the self-incriminating statement made by the applicant on 4 and 5 June 1997, there was nothing in the file proving his involvement in the crime. c. The judgment of the Supreme Court of Justice 24. On 21 December 1999 the Supreme Court of Justice quashed those two judgments, finding that the courts had exceeded their competence and had accepted, without giving valid reasons, the applicant's claim that he had not participated in the crime. A re-hearing of the case was ordered. 4. The second set of proceedings (2001-2002) a. The judgment of the Chişinău Regional Court 25. On 21 September 2001 the Chişinău Regional Court convicted the applicant of participation in the murder of M. and sentenced him to 16 years' imprisonment. 26. The court referred to the evidence in the case: witnesses testified to having seen R. M., U., S. and the applicant with M. in a bar on the night of her disappearance. Witness T. testified about the intentions of R. M. and U., who had spoken to her about their plan, to kill M. and sell her apartment. Witness M.E. and I.A. testified about R. M. and U.'s actions to obtain the documents necessary for the sale of M.'s apartment. Witness M.N. stated that she had witnessed S. invite M. to a bar on the day of her disappearance. 27. During a search of the applicant's apartment some of the documents relating to the sale of M.'s apartment had been found. The record of the search did not specify whether the documents were found in the room rented by R. M. and U. or in another place. One relevant document was found during a personal search of R. M. 28. The court referred to the applicant's confession and the version of the prosecution, according to which the applicant and R. M. had attempted to strangle M., and, having failed to do so, had thrown her into a well. The court found that the evidence, in addition to his confessions, proved his guilt. It was established that R. M. and U. had fraudulently obtained various documents from M. with the intention of selling her apartment. Moreover, R. M. had never confessed and the applicant's confessions had been made before the authorities had known the details such as the place where the body was found and the manner of the killing. These circumstances were later confirmed when the applicant showed them that place and when the experts recovered the body in his presence. The forensic report confirmed the types of injuries inflicted as coinciding with the description of the murder given by the applicant. 29. Besides, there had been no evidence that the applicant had been ill-treated, as proved by the medical examination carried out before his first interview. Moreover, the applicant had declared, in the presence of a lawyer, that he had not been ill-treated. The court considered that his refusal to sign the confession was a means of avoiding criminal responsibility. All of the above proved the applicant's guilt. 30. In his appeal, the applicant declared that he had found out the details about the murder from R. M., who had taken him to the crime scene on the day after the murder. He claimed that he had been ill-treated by the police in order to own up to the crime. The judgment did not specify the date of the murder and there was evidence confirming that M. had died later than the prosecution maintained. The applicant also submitted that, before being questioned as an accused, he had told the police all the details about the murder which he had found out from R. M. This contradicted the court's finding that the police had not had any details about the murder before the applicant's interview as a suspect. He refused to sign both confessions but could not offer further resistance due to fear of ill-treatment. He referred to evidence in his criminal file that on the morning of 4 June 1997 his relatives had concluded a contract with a lawyer for his representation but that the investigator had refused to allow that lawyer to represent him. He was then provided with another lawyer whom he did not trust and who did not protect his rights, but was in agreement with the investigator. In addition, the presence of a medical expert and witnesses at the first interview was not a common practice and the expert had not been warned, according to the law, of his criminal responsibility for making false statements. The unusual presence of so many persons at the very first interview only confirmed that the investigator had known that the applicant's will had been broken as a result of ill-treatment and he had agreed to “confess”. The investigator needed to create a very strong appearance of lack of ill-treatment which would be difficult to rebut. The court had failed to even mention the statement of I. M., which constituted an alibi for the applicant because it confirmed that he had returned home much earlier than R. M. and U. b. The judgment of the Court of Appeal 31. On 5 February 2002 the Court of Appeal upheld the first-instance court's judgment. The court found that the guilt of R. M. and of the applicant had been fully proved by the witness statements of T., the police officer who reported on T.'s statements and the results of the forensic report. The court referred to the applicant's confession and the version of the prosecution, according to which the applicant and R. M. had attempted to strangle M. and after they failed to do so had thrown her into a well. The applicant's withdrawal of his earlier statements was considered a means of avoiding criminal responsibility. 32. In his appeal in cassation the applicant reiterated his arguments made earlier and added that U. had testified that he had been back home at 11 p.m., as confirmed by I. M., thus providing him with an unchallenged alibi. Witness T. did not mention his name in her statement. The ill‑treatment applied to him (making him wear a gas mask and blocking the access of air until he lost consciousness from suffocation) could not have left marks on his body. He referred to the findings of the forensic report, which contradicted his statements and the version of the prosecution, according to which he and R. M. had attempted to strangle M. That report did not find any marks of strangulation but found multiple injuries, which confirmed that M. had been hit repeatedly. The date of the murder had not been established: the residual quantity of the soporific in M.'s blood was small, confirming that she had taken it a long time before her death. In addition, the expert declared that she had died several days before the report was drawn up (on 5 June 1997), which excluded the date of 19 May 1997 as the date of the murder. Another expert submitted in 1998 that M. had died a week before the report of 5 June 1997, which also challenged the prosecution's version that M. had been murdered on 19 May 1997. The applicant drew the court's attention to his refusal to sign the confessions, which cast doubt on their genuine character. He invoked Articles 3, 5 and 6 of the Convention. c. The judgment of the Supreme Court of Justice 33. On 16 April 2002 the Supreme Court of Justice upheld the judgment of 21 September 2001. The court found that the guilt of the accused had been fully proved. It referred to the prosecution's version of events, according to which the applicant and R. M. had attempted to strangle M. It also referred to the confession made by the applicant on 4 June 1997 in the presence of a lawyer, according to which he and R. M. had taken M. to a well and hit her repeatedly but because she had not died, they had thrown her into the well, where she drowned. The forensic report confirmed the manner of M.'s killing and the injuries on her body corresponded to the applicant's statements. In addition, witnesses confirmed the accused's intentions to sell M.'s apartment and the relevant documents were found in the apartment in which all the accused lived. 34. The court found that there was no evidence of ill-treatment, the applicant having made his confessions in the presence of his lawyer and a number of other persons. II. RELEVANT DOMESTIC LAW 35. The relevant provisions of the Code of Criminal Procedure (in force at the time of the events) read as follows: “Article 55 ... Evidence obtained in violation of the present Code or not properly examined during the court hearing cannot constitute the basis of a court conviction or of other procedural documents. Article 62 ... The initial interview of an accused in custody shall be made only in the presence of a defence counsel, chosen or appointed ex-officio. Article 115 The minutes of an investigation procedure shall be filed during that procedure or immediately thereafter. ... After the end of the interview the audio or video recording shall be reproduced in full for the interviewee. ... The audio or video recording shall end with a declaration by the interviewee confirming the correctness of the recording. Article 124 If the accused ... refuses to sign the minutes of the investigation procedure, a note on that shall be made in the minutes, signed by the author of the minutes. Anyone who refuses to sign the minutes shall be given the possibility to explain the reasons for the refusal, which shall be noted in the minutes”. THE LAW 36. The applicant complained under Article 6 § 1 of the Convention that the criminal proceedings against him had not been fair. The relevant part of Article 6 § 1 of the Convention reads: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.” 37. He also complained under Article 6 § 3 of the Convention that he had not had the proper services of a lawyer during his first days of detention. The relevant part of Article 6 § 3 of the Convention reads: “...3. Everyone charged with a criminal offence has the following minimum rights: ...(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ... ” I. ADMISSIBILITY 38. In his initial application the applicant also complained of a violation of his rights guaranteed under Articles 3 and 5 of the Convention. However, in his observations on the admissibility and merits he asked the Court not to proceed with the examination of these complaints, because they were outside the Court's competence ratione temporis. The Court finds no reason to examine any of these complaints. 39. The applicant also complained of a violation of Article 6 § 2 of the Convention since he was convicted despite the absence of any evidence of his guilt. Having examined the materials in the case-file, the Court considers that this complaint is manifestly ill founded. 40. The applicant complained of a violation of Article 6 § 3 of the Convention. He submitted that the lawyer (C. S.) hired by his mother on the first day of his arrest (4 June 1997) was not allowed to see him on that day. When the lawyer finally saw him, he did not ask for time to discuss with the applicant in private or to understand the case, but went directly to the interview and did not make sure to check whether the applicant had been ill-treated or threatened with ill-treatment. 41. The Court notes that the events complained of took place before the Convention entered into force in respect of Moldova on 12 September 1997. However, the Court recalls that the criminal proceedings conducted before a court are concluded by the final decision, which embodies any defects by which they may be affected (see, for instance, Klimentyev v. Russia (dec.), no. 46503/99, 21 June 2005). Therefore, the manner in which the applicant's interview in the present case was conducted may be taken into account in examining the fairness of the proceedings as a whole, which continued until well after the date of ratification. The Court notes that the applicant did not submit evidence that C. S. had asked to see the applicant on 4 June 1997 and that this had been refused, or that C. S. had acted unprofessionally on 5 June 1997. The documents in the file confirm that the applicant was assisted by a State-appointed lawyer on the first day of his arrest and by a lawyer chosen by his mother on the next day. There is nothing in the file to prove that the performance of those two lawyers was of such a low standard as to compromise the fairness of the proceedings as a whole. Therefore, this complaint should be rejected as manifestly ill founded. 42. The Court considers that the applicant's complaint under Article 6 § 1 of the Convention raises questions of fact and law which are sufficiently serious that their determination should depend on an examination of the merits, and no other grounds for declaring them inadmissible have been established. The Court therefore declares this complaint admissible. In accordance with its decision to apply Article 29 § 3 of the Convention (see paragraph 4 above), the Court will immediately consider the merits of the complaint. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION A. The submissions of the parties 1. The applicant's submissions 43. The applicant submitted that he had been convicted on the sole basis of the self-incriminating statements made by him as a result of ill-treatment on 4 and 5 June 1997. He did not sign those statements, thus expressing his disagreement with what he had been forced to say at the interview. No minutes were taken at the time of the events, and the applicant was later compelled to sign the minutes in October 1997. When he refused, investigator D. noted that the applicant had refused to sign. That investigator took charge of the case after the interviews of 4 and 5 June 1997 and therefore did not have the authority to sign anything on those minutes. The fact that investigator D. signed the minutes instead of the investigator who had originally conducted the interview proved that the minutes had not been signed on 5 June 1997, contrary to what had been stated in those minutes. 44. Moreover, the medical expert and the witnesses who had participated in the interview were never heard in court. The courts did not establish with certitude the date of M.'s death. The only expert report that was made on M.'s body found that she had died “several days earlier” than the day the report was drawn up, on 5 June 1997. This could not be understood to mean “16 days earlier”, and therefore M. could not have been murdered on 19 May 1997 as submitted by the prosecution. While the expert that had compiled the report on 5 June 1997 later died in an accident and could not be questioned as to the meaning of the phrase “several days earlier” which he had used, the courts rejected, without giving any reasons, the applicant's requests for an additional expert analysis in order to determine more precisely the date of M.'s death. 45. The courts remained silent on the alibi provided for the applicant by two different witnesses, according to which he returned home right after the events at the bar, at approximately 11 p.m., while R. M. and U. returned much later. Moreover, none of the witnesses, including T., mentioned the applicant's name, which appeared only in a report written by a police officer who referred back to T.'s statement. In any event, none of the domestic courts analysed the discrepancy between T.'s statement and the officer's account of her earlier statement. No cross examination of the applicant and T. was held in order to determine whether T. had actually said anything about the applicant. The Government's suggestion that she simply forgot or omitted to mention the applicant's name in her subsequent interview was a new argument which had never been examined by the domestic courts and was thus irrelevant. The authorities had, moreover, not taken sufficient measures to ensure that T. was found and heard in court, given that in her interview of 3 June 1997 she mentioned her intention to leave for Tashkent, Uzbekistan, where her grandmother lived. There was no evidence of any attempt to verify whether she had moved to that city, even though T.'s sister also mentioned Tashkent as a place where their relatives lived. Nor was M. D. heard, even though she had initially been interviewed and had given details about the crime, as heard from T. She did not mention the applicant's name, but named R. M., U. and S. as the perpetrators of the crime. 46. The lawyer present during the interviews with the applicant on 4 and 5 June 1997 was provided to the applicant by the prosecutor and did not do anything to defend the applicant's rights. The lawyer joined the interview without attempting to have a confidential meeting with the applicant. The applicant's self-incriminating statement was contradicted by objective evidence and the proper procedure had not been followed in that the applicant was not allowed to note the date on which he had been asked to sign the minutes of the interview. 47. The courts did not give sufficient reasons for their judgments. Some of the reasons that were given contradicted the facts of the case: the courts' finding that the applicant had told the investigator details about the murder and the place where the corpse was eventually found disregarded that most of those details had already been reported on 4 June 1997 by the police officer after her conversation with T., and that the applicant had found out additional details from R. M. himself and had informed the police of those details. 2. The Government's submissions 48. The Government submitted that the domestic courts had adopted reasoned judgments after examining all the evidence in the file and fully assessing the circumstances of the case. In their view, the Court could not take the place of the domestic courts by re-examining evidence, but was concerned only with the fairness of the trial as a whole. 49. The fact that T.'s statements differed from those of the police officer who reported on her conversation with her was irrelevant, since both reported essentially the same facts. Even though the police officer registered her report on 4 June 1997, she had written it on 22 May 1997 after speaking with T., who could have omitted certain facts eleven days later when she was officially interviewed on 3 June 1997. In any event, it was not the Court's task to determine whether a particular witness statement had been correctly attached to the file as evidence but only to examine the fairness of the proceedings under Article 6 of the Convention. The fact that T. later disappeared and could not be found in order to testify in court was not in itself a circumstance requiring the rejection of her initial statements. This did not raise an issue under Article 6 of the Convention (see Doorson v. the Netherlands, 26 March 1996, § 80, Reports of Judgments and Decisions 1996‑II). 50. The applicant's request for another medical report to be carried out in order to determine the date of M.'s death was rejected by the courts since a number of expert reports had been carried out in the case and there was no need for another one. In any event, the determination of the exact date of M.'s death would not have affected the outcome of the proceedings or the sentence in any manner. 51. The Government conceded that the courts had not examined the video cassette recording of the applicant's interviews on 4 and 5 June 1997. However, that did not raise an issue under Article 6 of the Convention, since there was sufficient evidence that the applicant had not been ill-treated. The courts found that all the pieces of evidence in the case were consistent with each other and with the applicant's statements. They adopted judgments based on the facts of the case and having followed exactly the procedural requirements of the criminal proceedings. B. The Court's assessment 1. General principles 52. The Court reiterates that the effect of Article 6 § 1 is, inter alia, to place a “tribunal” under a duty to conduct a proper examination of the submissions, arguments and evidence, without prejudice to its assessment or to whether they are relevant for its decision, given that the Court is not called upon to examine whether arguments are adequately met (see Perez v. France [GC], no. 47287/99, § 80, ECHR 2004‑I, and Buzescu v. Romania, no. 61302/00, § 63, 24 May 2005). Nevertheless, although Article 6 § 1 obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument (see Van de Hurk v. the Netherlands, 19 April 1994, §§ 59 and 61, Series A no. 288, and Burg and Others v. France (dec.), no. 34763/02, ECHR 2003-II). The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (see Ruiz Torija v. Spain and Hiro Balani v. Spain, judgments of 9 December 1994, § 29 and § 27, respectively, Series A nos. 303-A and 303-B, respectively, and Helle v. Finland, 19 December 1997, Reports 1997‑VIII, § 55). 53. For instance, in Ruiz Torija v. Spain (cited above, §§ 29 and 30) the Court found that the failure of the domestic court to deal with the applicant's contention that the court action against her had been time-barred amounted to a violation of Article 6 of the Convention. In Grădinar v. Moldova (no. 7170/02, § 117, 8 April 2008) the Court found a violation of Article 6 since “the domestic courts chose simply to remain silent with regard to a number of serious violations of the law noted by the lower court and to certain fundamental issues, such as the fact that the accused had an alibi for the presumed time of the murder.” Similar failures to give sufficient reasons resulted in findings of violations of Article 6 of the Convention in Hiro Balani (cited above, §§ 27 and 28), Suominen v. Finland (no. 37801/97, §§ 34-38, 1 July 2003), Salov v. Ukraine (no. 65518/01, § 92, ECHR 2005‑VIII (extracts)), Popov v. Moldova (no. 2) (no. 19960/04, §§ 49-54, 6 December 2005), Melnic v. Moldova (no. 6923/03, §§ 39-44, 14 November 2006) and other similar cases. 2. Application of these principles to the present case 54. The Court notes that the applicant raised several serious arguments challenging the only three pieces of evidence which arguably linked him to the crime. He pointed, for instance, that the search at his apartment had not indicated that the relevant documents had been found in his room (as opposed to that rented from him by R. M., whose guilt had been proved by various types of evidence), that S. P.'s statement only reproduced what T. had allegedly said to her (while T. herself never mentioned the applicant's name) and that there were circumstances which seriously challenged the genuine character of his “confessions” (most importantly, his refusal to sign them, despite them being “voluntary”, both before making the statements and after the statements were recorded, and the clear discrepancy between what he had “confessed” and what objective expert reports subsequently found concerning the attempted strangulation). He finally relied on his alibi for the night of the murder. 55. The Court reiterates that it is not its role to re-examine the facts of a case which has been dealt with by the domestic courts or to act as a “fourth-instance court” and decide on an applicant's guilt or innocence. Rather, its concern is to verify whether the proceedings as a whole complied with the requirements of Article 6 of the Convention. As it recalled in paragraphs 52 and 53 above, one of the requirements of Article 6 is for the domestic courts to deal with the most important arguments raised by the parties and to give reasons for accepting or rejecting such arguments. Even though the extent to which the courts should give reasons may vary depending on the particular circumstances of the case, a failure to deal with a serious argument or a manifestly arbitrary manner of doing so is incompatible with the notion of a fair trial. 56. In the present case, the Court considers that the applicant's arguments mentioned in paragraph 54 above could not be regarded as being insignificant or not capable of influencing the outcome of the proceedings. However, it does not see in the domestic courts' judgments a proper analysis of these arguments raised by the applicant. The one exception was the judgment of the Supreme Court of Justice, which addressed the discrepancy between the self-incriminating statement concerning an attempt to strangulate M. with a cord and the findings of the expert, who had found no signs of strangulation on M.'s body. However, while the Supreme Court of Justice apparently tried to deal with this clear discrepancy, it chose to simply rephrase the applicant's statement from what it expressly said (an attempt at strangulation) to something better corresponding to the findings of the expert (signs of severe beating, which had never been mentioned in the applicant's statement, see paragraphs 13 and 33 above). The Court considers that this tempering with evidence (by significantly amending the applicant's statements) was not only arbitrary but also did not answer the applicant's argument that there was a serious contradiction between his statements and objective evidence found which, together with his refusal to sign those statements, challenged their genuine character. Answering the applicant's arguments in this respect was even more important in the light of the fact that this was one of the reasons for which the courts had acquitted him in the first round of the proceedings (see paragraph 22 above). 57. Moreover, just as in Grădinar, cited above, in the present case the domestic courts failed to deal with the applicant's alibi for the presumed night of M.'s murder, even though that alibi had been accepted by two courts in the first round of proceedings (see paragraphs 22 and 23 above). There was no explanation for this omission, which concerned one of the strongest arguments put forward by the defence and thus required a proper analysis. Similarly, even though there was a discrepancy between what T. declared to the police (not mentioning the applicant, but another person S.) and what S. P. reported as having been told by T. (mentioning the applicant), the investigators and the courts did not question T. again in this respect during her interview on 5 June 1997 to dispel any doubts, but simply preferred to rely on S. P.'s hearsay evidence, to the detriment of that provided by the original witness. 58. The Court finds that, while heavily relying on the self-incriminating statements made by the applicant and failing to address his serious challenge to the genuine character of those statements, even re-phrasing those statements so as to avoid contradictions with objective evidence, the domestic courts chose simply to remain silent with regard to certain fundamental issues, such as the fact that he had an alibi for the presumed time of the murder. The Court could not find any explanation for such omissions in the domestic courts' decisions (see Grădinar, cited above, § 117). This is striking, given that two courts acquitted the applicant in the first round of proceedings (see paragraphs 22 and 23 above) and since, in the absence of any new evidence mentioned in the courts' judgments, they convicted the applicant in the second round of proceedings, disregarding circumstances which had earlier led to his acquittal (see Salov, cited above, § 91). Therefore, the domestic courts did not give sufficient reasons for their judgments. 59. There has, accordingly, been a violation of Article 6 § 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 applicant claimed 224,297 euros (EUR) for both pecuniary and non-pecuniary damage caused to him by his unlawful conviction and his detention for many years, as well as the fact that he had lost any chance of a normal life and reasonable earning and had been defamed in the eyes of all those who had known him. He referred to Ilaşcu and Others v. Moldova and Russia [GC] (no. 48787/99, ECHR 2004‑VII) as a precedent of the Court's making similar awards for illegal conviction and prolonged unlawful detention. 62. The Government submitted that the applicant could not claim any damage since he had not adduced any evidence thereof. The reference to the case of Ilaşcu and Others was irrelevant since that case concerned a conviction by courts which could not be considered competent to convict the applicants, while the applicant in the present case had been convicted by a lawfully constituted and competent court. 63. The Court considers that the applicant must have been caused stress and anxiety as a result of his conviction based on insufficient reasons. It further considers that where non-pecuniary damage is claimed for violations of the sort established in the present case it is very difficult, if not impossible, for an applicant to adduce any evidence of his personal suffering. At the same time, it considers that the amount claimed is excessive. Based on the materials in its possession, the Court awards the applicant EUR 5,000 in respect of non-pecuniary damage, together with any value-added tax that may be chargeable (see Popovici v. Moldova, nos. 289/04 and 41194/04, § 90, 27 November 2007). 64. The Court also considers that where, as in the instant case, an individual has been convicted following proceedings that have entailed breaches of the requirements of Article 6 of the Convention, a retrial or the reopening of the case, if requested, represents in principle an appropriate way of redressing the violation (see Öcalan v. Turkey [GC], no. 46221/99, § 210, ECHR 2005‑IV, and Popovici, cited above, § 87). B. Costs and expenses 65. The applicant claimed EUR 2,275 for legal assistance, including EUR 718 for legal assistance before the domestic courts. In support of his claims he submitted a contract with his representative and an itemised list of hours worked on the case, confirming that the representative had worked 31.15 hours at a rate of EUR 50 per hour, as well as receipts of payments made to lawyers in the domestic proceedings. 66. The Government submitted that the applicant had failed to provide evidence that he had in fact paid for legal assistance, since by the date of submitting his claims he had not paid anything to his lawyer. Given the legal assistance provided by the Council of Europe, no additional legal assistance was required. The legal fees paid during the domestic proceedings were not accompanied by a contract with the relevant lawyers and were thus vague and uncertain. 67. The Court reiterates that under its 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 were also reasonable as to their quantum (see, for example, Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI). 68. Regard being had to all of the information in its possession, the complexity of the case and the parties' submissions, the Court considers it reasonable, given the amount granted under the Council of Europe's legal aid scheme, to award him the additional sum of EUR 650 for the proceedings before this Court. C. Default interest 69. 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 1. Declares unanimously admissible the complaint under Article 6 § 1 of the Convention, and the remainder of the application inadmissible; 2. Holds by four votes to three that there has been a violation of Article 6 § 1 of the Convention; 3. Holds by four votes to three (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 5,000 (five thousand euros) in respect of non-pecuniary damage and EUR 650 (six hundred and fifty euros) for costs and expenses, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable; (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; 4. Dismisses unanimously the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 18 May 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyNicolas BratzaRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint dissenting opinion of Judges Bratza, Garlicki and David Thór Björgvinsson is annexed to this judgment. N.B. T.L.E. JOINT DISSENTING OPINION OF JUDGES BRATZA, GARLICKI AND DAVID THÓR BJÖRGVINSSON 1. While we have voted in favour of the admissibility of the applicant's complaint under Article 6 § 1 of the Convention, we are unable to share the view of the majority of the Chamber that there has been a violation of that provision. We note at the outset that, although dissatisfied with the outcome of the criminal proceedings against him, the applicant does not complain about unfairness in the procedures before the Chişinau Regional Court, the Court of Appeal or the Supreme Court of Justice: he was legally represented in all three courts and it is not suggested that there was any breach of the principle of equality of arms or that the applicant was unable, through his counsel, to present such arguments or submissions as he wished. The majority's finding that the criminal proceedings against the applicant were unfair is based exclusively on the alleged inadequacy of the reasons given by the Regional Court in convicting the applicant on his retrial and those given by the appellate courts in upholding his conviction. We consider that, in concluding that Article 6 was violated in the present case, the majority of the Chamber have strayed beyond the Court's proper supervisory function and, contrary to what is asserted in the judgment, have assumed the role of a “fourth instance” tribunal. 2. In reaching their conclusion, the majority place reliance on the judgment of the Chamber in Grǎdinar v. Moldova (No. 7170/02, 8 April 2008), where the Court similarly found a violation of Article 6 on the grounds of the insufficiency of the reasons given by the appellate courts to support the applicant's conviction. It is said that, as in the Grǎdinar case, the domestic courts in the present case remained silent with regard to certain fundamental issues in the case, including the applicant's alibi which had led to his previous acquittal. Despite their superficial similarity, there exists a fundamental distinction between the two cases. In the Grǎdinar case, as in this, the Supreme Court had quashed the lower courts' judgments acquitting the applicant's husband of murder and a full rehearing of the case had been ordered. On the retrial, the applicant's husband was once again acquitted by the trial court but the judgment was quashed by the Court of Appeal, which convicted him on the basis of the same evidence and without rehearing any of the principal witnesses in the case. His conviction was subsequently upheld by the Supreme Court. It was this failure of the two appellate courts to give sufficient reasons for reversing the factual conclusions of the trial court which was at the heart of the Court's finding of a violation of Article 6. In marked contrast, the applicant in the present case was convicted of murder on his retrial after a full rehearing of the evidence in the case and his conviction was upheld by both the Court of Appeal and the Supreme Court. The majority's finding is based not, as in Grǎdinar, on the failure of the appellate courts to give sufficient reasons for reversing the trial court's conclusion on the evidence before it, but on the alleged failure of the trial and appellate courts on the retrial of the applicant to give sufficient reasons for departing from the assessment of the evidence by the original trial court. 3. We consider that this is to go too far. While the procedural guarantees of fairness in Article 6 § 1 of the Convention undoubtedly require that a tribunal conduct a proper examination of the submissions, arguments and evidence before it, it is for the tribunal itself to assess the extent to which they are relevant for its decision. As is correctly emphasised in the judgment, the Article cannot be understood as requiring a detailed answer to every argument advanced or detailed reasons to be given for accepting or rejecting the evidence before it. Still less can Article 6 be understood as requiring, in a case such as the present, where there has been a retrial of an applicant, that reasons are given by the tribunal for reaching a different assessment of the evidence before it, or a different conclusion on that evidence, from that of the original trial court. The Strasbourg Court will in principle be justified in intervening only in a case where the assessment of the evidence before the domestic courts, or the reasons given for the conclusions reached on that evidence, are manifestly unreasonable or otherwise arbitrary. The grounds relied on in the judgment for finding that Article 6 was violated are, in our view, very far from establishing any such arbitrariness on the part of the domestic courts. 4. It is argued in the first place that the domestic courts failed properly to analyse or respond to “several serious arguments of the applicant challenging the only three pieces of evidence which arguably linked the applicant to the crime”, namely the relevant documents found in the search of the applicant's apartment; S. P.'s statement as to what T. had allegedly said to him about the involvement of the applicant; and the confessions of the applicant himself. 5. This argument illustrates the difficulty faced by the Court when it assumes the role of a court of appeal and seeks to substitute its own view for that of the national courts as to which of the arguments advanced before them called for an answer. As to the first of these elements, it is said that, while noting that the incriminating documents had been found in the apartment which the applicant shared with his co-defendant, R. M., the Regional Court omitted to mention that the record of the search of the apartment did not specify whether the documents were found in the room rented by R. M. or elsewhere in the apartment. However, there is nothing in the material before the Court to indicate what reliance, if any, was placed by the applicant at his trial on this element of the evidence. Certainly, it does not appear from the judgments of the appellate courts, that it was made a central part of the applicant's appeals to the Court of Appeal or the Supreme Court. 6. As to the second element, it is true that T.'s statement incriminating the applicant appeared only in S. P.'s report of his interview with T. and not in T.'s own statement. However, it is also true that S. P. was called as a witness at the retrial and that he confirmed his account of what T. had told him on 4 June 1997. Complaint is made in the judgment of the fact that the domestic courts “preferred to rely on S. P.'s hearsay evidence to the detriment of that provided by the original witness” and that no steps had been taken to question T. again during her interview of 5 June 1997 to dispel any doubts about the alleged discrepancy between the two accounts. But, again, it is unclear whether any objection at trial was taken by the applicant to the admission of S. P.'s evidence; nor does it appear what, if any, reliance was placed at the trial or on appeal on the alleged inconsistency between the two statements. 7. As to the applicant's confession statements, it is beyond dispute that the domestic courts examined the applicant's principal claim that the statements were not made voluntarily. The Regional Court expressly found the statements to have been voluntary, noting that the forensic medical expert had discovered no physical injuries on the applicant, that when questioned by the police inspector the applicant had stated in the presence of a lawyer and witnesses that there had been no coercion whatsoever and that he had given the statements without any constraints. The judgment asserts that there was a “serious contradiction” between the statements and the objective evidence which cast doubt on the genuineness of the statements and that the Supreme Court had “tampered” with the applicant's statements in order to circumvent this contradiction. It is not in our view the role of this Court to reach an independent assessment of the existence or the seriousness of the alleged contradiction; still less do we feel justified in drawing the conclusion that the Supreme Court tampered with evidence by significantly amending the applicant's statement as alleged. 8. It is finally argued in the judgment that the domestic courts failed to deal with the applicant's alibi for the presumed night of M.'s murder. The alleged alibi witness was I. M., who also lived in the applicant's flat at the material time. It appears that I. M. did not give evidence, his alibi being included in a written statement before the Regional Court. It is true that the domestic courts on the retrial of the applicant did not make reference to the alibi or explain why it had been discounted. However, we note that, although the alibi was claimed by the applicant to be “unchallenged”, it was clearly inconsistent with the applicant's own confession statements, which were accepted by the domestic courts as valid. In these circumstances, we find no basis for concluding that the failure to refer to the alibi is indicative of any arbitrariness on the part of the domestic courts. 9. We are, for these reasons, unpersuaded that the applicant has established such deficiencies in the domestic courts' assessment of the evidence, or in the reasons given for their judgments, to give rise to a violation of Article 6 § 1 of the Convention.

FIFTH SECTION CASE OF PRYSHLYAK AND NEKRASOVA v. UKRAINE (Applications nos. 4498/18 and 30341/18) JUDGMENT STRASBOURG 6 June 2019 This judgment is final but it may be subject to editorial revision. In the case of Pryshlyak and Nekrasova v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Yonko Grozev, President,Ganna Yudkivska,André Potocki, judges,and Liv Tigerstedt, Acting Deputy Section Registrar, Having deliberated in private on 16 May 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2. Notice of the applications was given to the Ukrainian Government (“the Government”). THE FACTS 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of criminal proceedings and of the lack of any effective remedy in domestic law. In application no. 4498/18, the applicant also raised a complaint under Article 2 of Protocol No. 4 to the Convention. THE LAW I. JOINDER OF THE APPLICATIONS 5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 13 OF THE CONVENTION 6. The applicants complained principally that the length of the criminal proceedings in question had been incompatible with the “reasonable time” requirement and that they had no effective remedy in this connection. They relied on Article 6 § 1 and Article 13 of the Convention, which read as follows: Article 6 § 1 “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 7. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999‑II, and Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000‑VII). 8. In the leading case of Merit v. Ukraine, (no. 66561/01, 30 March 2004), the Court already found a violation in respect of issues similar to those in the present case. 9. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion as to the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. 10. The Court further notes that the applicants did not have at their disposal an effective remedy in respect of these complaints. 11. These complaints are therefore admissible and disclose a breach of Article 6 § 1 and of Article 13 of the Convention. III. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 12. The applicant in application no. 4498/18 also submitted a complaint under Article 2 of Protocol No. 4 to the Convention concerning the excessive length of his obligation not to abscond (see appended table). This complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other ground. Accordingly, it must be declared admissible. Having examined all the material before it, the Court concludes that it also discloses a violation of the Convention in the light of its findings in Ivanov v. Ukraine (no. 15007/02, 7 December 2006) and Nikiforenko v. Ukraine (no. 14613/03, § 59, 18 February 2010). IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 13. 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.” 14. Regard being had to the documents in its possession and to its case-law (see, in particular, Bevz v. Ukraine, no. 7307/05, § 52, 18 June 2009), the Court finds it reasonable to award the sums indicated in the appended table. 15. 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 these applications disclose a breach of Article 6 § 1 and Article 13 of the Convention concerning the excessive length of criminal proceedings; 4. Holds that, in application no. 4498/18, there has been a violation of Article 2 of Protocol No. 4 to the Convention as regards the excessive length of the obligation not to abscond (see appended table); 5. Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State 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. Done in English, and notified in writing on 6 June 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv TigerstedtYonko GrozevActing Deputy RegistrarPresident APPENDIX List of applications raising complaints under Article 6 § 1 and Article 13 of the Convention (excessive length of criminal proceedings and lack of any effective remedy in domestic law) No. Application no. Date of introduction Applicant’s name Date of birth Representative’s name and location Start of proceedings End of proceedings Total length Levels of jurisdiction Other complaints under well-established case-law Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros)[1] 4498/18 24/11/2017 Mykola Ivanovych Pryshlyak 21/05/1964 Oleg Volodymyrovych Mytsyk Lviv 16/11/2009 25/05/2017 7 years, 6 months and 10 days 2 levels of jurisdiction Prot. 4 Art. 2 (1) - excessive length of obligation not to abscond: the applicant signed an obligation not to abscond on 17/11/2009, the restriction on his freedom of movement was lifted on 25/05/2017, no re-examination of the justification of the measure 1,900 30341/18 03/06/2018 Tamara Aleksandrovna Nekrasova 22/12/1973 03/03/2012 pending More than 7 years, 1 month and 14 days 3 levels of jurisdiction 900 [1]. Plus any tax that may be chargeable to the applicants.

FIRST SECTION CASE OF ABDULLAYEV v. RUSSIA (Application no. 11227/05) JUDGMENT STRASBOURG 11 February 2010 FINAL 11/05/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Abdullayev v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Anatoly Kovler,Khanlar Hajiyev,Dean Spielmann,Sverre Erik Jebens,Giorgio Malinverni,George Nicolaou, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 21 January 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 11227/05) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Musakurban Gazimagomadovich Abdullayev (“the applicant”), on 22 March 2005. 2. The applicant was represented by Mr M.A. Bizhanov, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights. 3. On 18 May 2007 the President of the First 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 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1948 and lives in Makhachkala. 5. In 2000 he bought a part of a house from a certain Y. The co-owner of the house, G., brought a court action against the applicant for annulment of the agreement, on the grounds that she (G.), having a pre-emption right, had not been informed about the agreement in advance in accordance with the domestic law. 6. On 18 February 2004 the Leninskiy District Court of Makhachkala held in favour of G., transferred to her the property rights on the applicant’s part of the house and obliged her to reimburse the applicant its value. 7. On 3 March 2004 Y., a co‑defendant to the proceedings along with the applicant, appealed against the judgment. On 16 March 2004 the applicant joined the appeal. 8. On 2 April 2004 the Supreme Court of the Republic of Dagestan quashed the judgment of 18 February 2004 on appeal and dismissed G.’s action. 9. On 2 July 2004 G. lodged an application for supervisory review of the appeal judgment of 2 April 2004 with the Supreme Court of the Republic of Dagestan. 10. On 16 September 2004 the President of the Supreme Court of the Republic of Dagestan referred the case to its Presidium. 11. On 23 September 2004 the Presidium of the Supreme Court of the Republic of Dagestan quashed the appeal judgment of 2 April 2004 for wrong assessment of evidence and upheld the judgment of 18 February 2004. 12. The applicant submits that he was not duly informed about the date and the time of the hearing before the Presidium and therefore could not attend it. The other party’s representative was present and made submissions. II. RELEVANT DOMESTIC LAW 13. The relevant domestic law governing the supervisory review procedure at the material time is summed up in the Court’s judgment in the case of Sobelin and Others (see Sobelin and Others v. Russia, nos. 30672/03, et seq., §§ 33-42, 3 May 2007). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 14. The applicant complained under Article 6 of the Convention and under Article 1 of Protocol No. 1 that the appeal judgment of 2 April 2004 had been quashed by way of supervisory review on 23 September 2004 and that the supervisory-review hearing had been unfair because he had not been informed about it and therefore had not been able to attend it. In so far as relevant, these Articles read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.[...]” A. Admissibility 15. The Government asserted that the applicant had failed to exhaust all the domestic remedies as he had not lodged an appeal against the judgment of the first instance taken against him. This appeal was lodged by the seller Y., who was a co-defendant to the proceedings along with the applicant. 16. The Court observes that on 16 March 2004 the applicant joined the Y.’s appeal (see paragraph 8). In any event, the alleged failure to appeal against the first-instance judgment would be irrelevant to the matter considered in the present case, which is supervisory review of the judgment of the court of the second instance. 17. The Court concludes that the 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. Article 6 of the Convention (a) Supervisory review: legal certainty 18. The Government argued that the supervisory review had been compatible with the Convention since it was aimed to correct a fundamental judicial error, since the application for supervisory review had been lodged by a party to the proceedings and since it had been lodged, and the case reviewed, within a very short period of time. They also asserted that the applicant had been properly notified of the time and place of the supervisory-review hearing. The applicant maintained his complaint. 19. The Court reiterates that for the sake of legal certainty implicitly required by Article 6, final judgments should generally be left intact. They may be disturbed only to correct fundamental errors. The mere possibility of there being two views on the subject is not a ground for re‑examination (see Ryabykh v. Russia, no. 52854/99, §§ 51-52, ECHR 2003‑IX). 20. The Court further reiterates that it has frequently found violations of the principle of legal certainty and of the right to a court in the supervisory‑review proceedings governed by the Code of Civil Procedure in force since 2003 (see, amongst other authorities, Sobelin and Others, cited above, §§ 57-58, and Bodrov v. Russia, no. 17472/04, § 31, 12 February 2009). 21. In the present case the final and binding appeal judgment was quashed because the Presidium disagreed with the assessment made by the appeal court, which is not in itself an exceptional circumstance warranting the quashing (see Kot v. Russia, no. 20887/03, § 29, 18 January 2007). Accordingly, there has been a violation of Article 6 § 1 of the Convention. (b) Supervisory review: procedural issue 22. The Court finds that, having concluded that there has been an infringement of the applicant’s “right to a court” by the very use of the supervisory review procedure, it is not necessary to consider separately whether the procedural guarantees of Article 6 of the Convention were respected during those proceedings (see Ryabykh, cited above, § 59). 2. Article 1 of Protocol No. 1 23. The Court further observes that under the final appeal judgment the applicant maintained his title to the contested part of the house. Its quashing in breach of the principle of legal certainty frustrated the applicant’s reliance on it. Accordingly, there has also been a violation of Article 1 of Protocol No. 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 24. 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.” 25. The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 of the Convention and of Article 1 of Protocol No. 1 in respect of the quashing by way of supervisory review of the final appeal judgment in the applicant’s favour; 3. Holds that there is no need to examine the complaint under Article 6 of the Convention that the applicant was not informed about the hearing of 23 September 2004. Done in English, and notified in writing on 11 February 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident